Indemnities by Borrower. Without limiting any other rights that the Administrative Agent, any Issuing Lender, any Managing Agent, any Lender or any Liquidity Provider may have hereunder or under applicable law, Borrower hereby agrees to indemnify (and pay upon demand to) the Administrative Agent, each Issuing Lender, each Managing Agent, each Lender and each Liquidity Provider and their respective Affiliates, successors, assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Administrative Agent, such Issuing Lender, such Managing Agent, such Lender or such Liquidity Provider), settlement costs and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement, any other Facility Document or the transactions contemplated by any Facility Document, or any Receivable, Contract or Related Security, or the use of the proceeds of any Borrowing hereunder, or the issuance of any Letter of Credit by an Issuing Lender, or the funding either directly or indirectly, by a Lender of a Borrowing or any Indemnified Party’s interest in the Receivables, the Contract or any Related Security excluding, however, in all of the foregoing instances: (a) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification; (b) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or (c) taxes imposed by the United States federal government or the jurisdiction in which such Indemnified Party’s principal executive office is located, or, in the case of a Lender, its applicable lending office is located, on or measured by the overall net or gross income of such Indemnified Party; provided, however, that nothing contained in this sentence shall limit the liability of any Borrower Party or limit the recourse of the Indemnified Parties to any Borrower Party for amounts otherwise specifically provided to be paid by such Borrower Party under the terms of this Agreement or any other Facility Document. Without limiting the generality of the foregoing indemnification, Borrower shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Borrower or the Servicer) relating to or resulting from: (i) any representation or warranty made by any Borrower Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Facility Document or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made; (ii) the failure by Borrower, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of Originator to keep or perform any of its obligations, express or implied, with respect to any Contract; (iii) any failure of Borrower, the Performance Guarantor, the Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Facility Document; (iv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
Appears in 1 contract
Indemnities by Borrower. (a) Without limiting any other rights that the Administrative Agent, which any Issuing Lender, any Managing Agent, any Lender or any Liquidity Provider such Person may have hereunder or under applicable law, Borrower hereby agrees to indemnify (Agent and pay upon demand to) the Administrative Agent, each Issuing Lender, each Managing Agent, each Lender and each Liquidity Provider and of their respective Affiliates, and all successors, assignstransferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents and employees of any of the foregoing (each an “"Indemnified Party”) "), forthwith on demand, from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses judgments and for all other amounts payablerelated costs and expenses, including reasonable attorneys’ ' fees (which attorneys may be employees of the Administrative Agent, such Issuing Lender, such Managing Agent, such Lender or such Liquidity Provider), settlement costs and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement, any other Facility Document relating to the Transaction Documents or the transactions contemplated by ownership or funding of the Loans or in respect of any Facility Document, Receivable or any ReceivableContract. Notwithstanding the foregoing, Contract or Related Security, or the use of the proceeds of any Borrowing hereunder, or the issuance of any Letter of Credit by an Issuing Lender, or the funding either directly or indirectly, by a Lender of a Borrowing or in no event shall any Indemnified Party’s interest in the Receivables, the Contract or Party be awarded any Related Security excluding, however, in all of the foregoing instances:
(a) Indemnified Amounts to the extent a final judgment of determined by a court of competent jurisdiction holds that such Indemnified Amounts pursuant to a final, non-appealable order to have resulted from gross negligence or willful misconduct on the part of the such Indemnified Party seeking indemnification;
or constituting recourse (b) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(c) taxes imposed by the United States federal government or the jurisdiction in which such Indemnified Party’s principal executive office is located, or, in the case of a Lender, its applicable lending office is located, on or measured by the overall net or gross income of such Indemnified Party; provided, however, that nothing contained in this sentence shall limit the liability of any Borrower Party or limit the recourse of the Indemnified Parties to any Borrower Party for amounts except as otherwise specifically provided in this Agreement) to be paid by such Borrower Party under for non-payment of the terms Receivables due to the credit problems of this Agreement or any other Facility Documentthe Obligors thereof. Without limiting the generality of the foregoing indemnificationforegoing, Borrower shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect arising out of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Borrower or the Servicer) relating to or resulting fromto:
(i) the transfer by any Transaction Party of any interest in any Receivable other than the transfer of Receivables and related property by Originator to Borrower pursuant to the Receivables Purchase Agreement and the grant of a security interest to Agent pursuant to the terms hereof;
(ii) any representation or warranty made by any Borrower Transaction Party or any Originator (or any officers of any such Personits officers) under or in connection with this Agreement, Agreement or any other Facility Transaction Document or any other information or report delivered by or on behalf of any such Person Transaction Party pursuant hereto or thereto, which shall have been false false, incorrect or incorrect misleading in any material respect when made or deemed mademade or delivered, as the case may be;
(iiiii) the failure by Borrower, the Servicer or any Originator Transaction Party to comply with any applicable law, rule or regulation with respect to any Receivable or Contract the related theretoContract, or the nonconformity of any Receivable or the related Contract included therein with any such applicable law, rule or regulation regulation;
(iv) the failure of Agent to have a security interest in the Receivables and Related Assets, free and clear of any other security interest, lien, pledge, charge or other encumbrance, other than any other security interest, lien, pledge, charge or other encumbrance arising solely as a result of an act of Agent or any Lender and other than solely as a result of the failure of Originator Agent to keep file a financing statement;
(v) the failure to file, or perform any delay in filing, financing statements or other similar instruments or documents under the UCC of its obligations, express any applicable jurisdiction or implied, other applicable laws with respect to any ContractReceivables, other than if such failure or delay is caused solely as a result of any act or omission of Agent;
(iiivi) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivables or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(vii) any matter described in Section 2.7(a) hereof;
(viii) any failure of Borrowerany Transaction Party, the Performance Guarantor, the as Servicer or any Originator otherwise, to perform its duties, covenants duties or other obligations in accordance with the provisions of this Agreement or any other Facility Documentterms thereof;
(ivix) any products liability, personal injury or damage suit, or other similar liability claim arising out of or in connection with merchandise, insurance merchandise or services that are the subject of any Receivable;
(x) any claim of breach by any Transaction Party of any related Contract or with respect to any Receivable;
(xi) any tax or governmental fee or charge (but not including taxes upon or measured by net income), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the security interest in the Receivables and Related Assets; and
(xii) amounts in respect of dilution with respect to the Receivables.
(b) If any Indemnified Party shall have notice of any attempt to impose or collect any tax or governmental fee or charge for which indemnification will be sought from any Transaction Party under Section 12.1(a)(xi), such Indemnified Party shall give prompt and timely notice of such attempt to Borrower and Borrower shall have the right, at its expense, to participate in any proceedings resisting or objecting to the imposition or collection of any such tax, governmental fee or charge. Indemnification hereunder shall be in an amount necessary to make the Indemnified Party whole after taking into account any tax consequences to the Indemnified Party of the payment of any of the aforesaid taxes (including any deduction) and the receipt of the indemnity provided hereunder or of any refund of any such tax previously indemnified hereunder, including the effect of such tax, deduction or refund on the amount of tax measured by net income or profits which is or was payable by the Indemnified Party.
(c) If for any reason the indemnification provided above in this Section 12.1 is unavailable to an Indemnified Party or is insufficient to hold an Indemnified Party harmless, then Borrower shall contribute to the amount paid or payable by such Indemnified Party 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 Party on the one hand and Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
Appears in 1 contract
Samples: Loan and Security Agreement (Westpoint Stevens Inc)
Indemnities by Borrower. Without limiting any other rights that the Administrative Agent, any Issuing Lender, any Managing Agent, any Lender or any Liquidity Provider may have hereunder or under applicable law, Borrower hereby agrees to indemnify (and pay upon demand to) the Administrative Agent, each Issuing Lender, each Managing Agent, each Lender and each Liquidity Provider and their respective Affiliates, successors, assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Administrative Agent, such Issuing Lender, such Managing Agent, such Lender or such Liquidity Provider), settlement costs and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement, any other Facility Document or the transactions contemplated by any Facility Document, or any Receivable, Contract or Related Security, or the use of the proceeds of any Borrowing hereunder, or the issuance of any Letter of Credit by an Issuing Lender, or the funding either directly or indirectly, by a Lender of a Borrowing or any Indemnified Party’s interest in the Receivables, the Contract or any Related Security excluding, however, in all of the foregoing instances:
(a) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(c) taxes imposed by the United States federal government or the jurisdiction in which such Indemnified Party’s principal executive office is located, or, in the case of a Lender, its applicable lending office is located, on or measured by the overall net or gross income of such Indemnified Party; provided, however, that nothing contained in this sentence shall limit the liability of any Borrower Party or limit the recourse of the Indemnified Parties to any Borrower Party for amounts otherwise specifically provided to be paid by such Borrower Party under the terms of this Agreement or any other Facility Document. Without limiting the generality of the foregoing indemnification, Borrower shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Borrower or the Servicer) relating to or resulting from:
(i) any representation or warranty made by any Borrower Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Facility Document or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(ii) the failure by Borrower, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(iii) any failure of Borrower, the Performance Guarantor, the Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Facility Document;
(iv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(vi) the commingling of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Facility Document, the transactions contemplated hereby or thereby, the use of the proceeds of any Borrowing, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Borrower, the Performance Guarantor, the Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby or by any other Facility Document;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Event of Termination or Incipient Event of Termination described in Section 7.01(e);
(x) any failure of Borrower to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from the related Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Borrower to give reasonably equivalent value to any Originator under the Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xi) any failure to vest and maintain vested in the Administrative Agent for the benefit of the Secured Parties, or to transfer to the Administrative Agent for the benefit of the Secured Parties a first priority perfected security interest in the Receivables, the Related Security and the Collections and the other Collateral, free and clear of any Adverse Claim (except as created by the Facility Documents);
(xii) any failure to vest and maintain vested in the Administrative Agent for the benefit of the Issuing Lenders a first priority perfected security interest in the Letter of Credit Collateral, free and clear of any Adverse Claim (except as created by the Facility Documents)
(xiii) the failure to have filed, 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 Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Borrowing or at any subsequent time;
(xiv) any action or omission by any Borrower Party or any Originator which reduces or impairs the rights of the Administrative Agent or the Secured Parties with respect to any Collateral or the value of any Collateral;
(xv) any attempt by any Person to void the security interest in the Collateral or the Letter of Credit Collateral granted hereunder under statutory provisions or common law or equitable action;
(xvi) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included; or
(xvii) the failure of (a) any Deposit Account Bank to remit any amounts or items of payment held in a Deposit Account or in a Lock-Box pursuant to the instructions of the Administrative Agent given in accordance with this Agreement, the applicable Blocked Account Agreement or the other Facility Documents, whether by reason of the exercise of setoff rights or otherwise, or (b) any sub-servicer or any other third party with a contractual relationship with the Borrower for the acceptance or processing of Collections, to remit any Collections received by it to a Lock-Box or a Deposit Account.
Appears in 1 contract
Indemnities by Borrower. Without limiting any other rights that the Administrative which Agent, any Issuing Lender, any Managing Backup Servicer, Servicer (if other than BRT or an Affiliate thereof), Agent’s Bank, any Lender Custodian or any Liquidity Provider of their respective Affiliates may have hereunder or under applicable law, each of Borrower and Guarantor, jointly and severally, hereby agrees to indemnify (and pay upon demand to) the Administrative Agent, each Issuing Lender, each Managing Backup Servicer, Servicer (if other than BRT or an Affiliate thereof), Agent’s Bank, each Lender Custodian and each Liquidity Provider and of their respective AffiliatesAffiliates (each, successors, assigns, officers, directors, agents and employees (each an “Indemnified Party”” for purposes of this Article IX) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses liabilities and for all other amounts payablerelated costs and expenses, including reasonable attorneys’ fees (which attorneys may be employees of the Administrative Agent, such Issuing Lender, such Managing Agent, such Lender or such Liquidity Provider), settlement costs and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement, any other Facility Document Agreement or the transactions contemplated by any Facility Document, or any Receivable, Contract or Related Security, or the use of the proceeds in respect of any Borrowing hereunderPledged Assets, or the issuance of any Letter of Credit by an Issuing Lender, or the funding either directly or indirectly, by a Lender of a Borrowing or any Indemnified Party’s interest in the Receivables, the Contract or any Related Security excluding, however, in all of the foregoing instances:
any such amount (a) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted resulting solely from gross negligence negligence, bad faith or willful misconduct on the part of an Indemnified Party, and (b) to the extent comprising income, franchise and similar taxes levied on the Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account all of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(c) taxes imposed by the United States federal government or the jurisdiction in which such foregoing being collectively referred to as “Indemnified Party’s principal executive office is located, or, in the case of a Lender, its applicable lending office is located, on or measured by the overall net or gross income of such Indemnified Party; provided, however, that nothing contained in this sentence shall limit the liability of any Borrower Party or limit the recourse of the Indemnified Parties to any Borrower Party for amounts otherwise specifically provided to be paid by such Borrower Party under the terms of this Agreement or any other Facility DocumentAmounts”). Without limiting the generality foregoing, each of the foregoing indemnificationBorrower and Guarantor, Borrower jointly and severally, shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Borrower or the Servicer) relating to or resulting fromfrom any of the following:
(i) any Pledged Receivable treated as or represented by Borrower to be an Eligible Receivable which is not at the applicable time an Eligible Receivable, or the purchase by any party or origination of any Receivable which violates applicable law;
(ii) reliance on any representation or warranty made or deemed made by any Borrower Party Borrower, Guarantor, Servicer (in its capacity as Servicer hereunder), or any Originator (or any of their officers of any such Person) under or in connection with this Agreement, any other Facility Document Agreement or any other information or report delivered by any such Person pursuant hereto or theretoTransaction Document, which shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iiiii) the failure by Borrower, the Guarantor or Servicer (in its capacity as Servicer hereunder) to comply with any term, provision or covenant contained in this Agreement or any Originator to comply agreement executed in connection with this Agreement, or with any applicable law, rule or regulation with respect to any Receivable or Contract related theretoPledged Assets, or the nonconformity of any Receivable or Contract included therein Pledged Assets with any such applicable law, rule or regulation regulation;
(iv) the failure to vest and maintain vested in Agent, for the benefit of Lenders, or to transfer to Agent, for the benefit of Lenders, a first priority perfected security interest (subject only to Permitted Liens) in the Receivables which are, or are purported to be, Pledged Receivables, together with all related Other Conveyed Property, Collections, Related Security and other Pledged Assets related thereto (including, without limitation, Borrower’s interest in and to any and all Underlying Collateral with respect to such Receivables), free and clear of any Adverse Claim whether existing at the time of the related Borrowing or at any time thereafter;
(v) the failure to maintain, as of the close of business on each Business Day prior to the Collection Date, a Facility Amount which is less than or equal to the lesser of the Borrowing Limit and Borrowing Base on such Business Day;
(vi) the failure to file, or any failure delay in filing, financing statements or other similar instruments or documents under the UCC of Originator to keep any applicable jurisdiction or perform any of its obligations, express or implied, other applicable laws with respect to any ContractReceivables which are, or are purported to be, Pledged Receivables or the other Pledged Assets related thereto, whether at the time of any Borrowing or at any subsequent time;
(iiivii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of an Obligor) to the payment of any Receivable which is, or is purported to be, a Pledged Receivable (including, without limitation, a defense based on such Receivable (or the Contract evidencing such Receivable) not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any products liability or other similar claim by an Obligor or some other third party arising out of the merchandise sold in connection with any Receivable;
(viii) any failure of Borrower, the Performance Guarantor, the Guarantor or Servicer or any Originator (in its capacity as Servicer hereunder) to perform its duties, covenants duties or other obligations in accordance with the provisions of this Agreement Agreement;
(ix) the failure of Borrower to pay when due any taxes payable in connection with the Pledged Receivables or the Pledged Assets related thereto;
(x) any repayment by Agent or any Lender of any amount previously distributed in payment of Loans or payment of Interest or Fees or any other Facility Documentamount due hereunder, in each case which amount Agent or any Lender believes in good faith is required to be repaid;
(ivxi) the commingling by Borrower or Servicer of Collections of Pledged Receivables at any time with other funds;
(xii) any products liabilityinvestigation, personal injury litigation or damage suitproceeding related to this Agreement (or the Transaction Documents), or other similar claim the use of proceeds of Loans or the Pledged Assets, or Borrower’s or Servicer’s administration of the Receivables;
(xiii) any failure by Borrower to give reasonably equivalent value to BRT in consideration for the transfer by BRT to Borrower of any Receivable or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code;
(xiv) any failure of Borrower or any of its agents or representatives to remit to the Operating Account, Collections of Pledged Receivables remitted to Borrower or any such agent or representative;
(xv) any Contract related to any Pledged Receivable being be deemed to be an executory contract or unexpired lease subject to rejection by an Obligor under Section 365 of the Bankruptcy Code in the event that a Bankruptcy Event has occurred with respect to such Obligor; and/or
(xvi) any environmental claims arising out of or in connection with merchandiseany activity on mortgaged property constituting Underlying Collateral. Any amounts subject to the indemnification provisions of this Section 9.01 shall be paid by Borrower and Guarantor to Agent on behalf of the applicable Indemnified Party within five (5) Business Days following Agent’s written demand therefor on behalf of the applicable Indemnified Party (and Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by Agent of such amounts). Agent, insurance or services that are the subject on behalf of any Contract Indemnified Party making a request for indemnification under this Section 9.01, shall submit to Borrower a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error. If Borrower or Guarantor has made any Receivable;payments in respect of Indemnified Amounts to Agent, on behalf of an Indemnified Party pursuant to this Section 9.01 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to Borrower or Guarantor, as applicable, without interest.
Appears in 1 contract
Indemnities by Borrower. Without limiting any other ----------------------- rights that the Administrative Agent, which any Issuing Lender, any Managing Agent, any Lender or any Liquidity Provider Indemnified Party may have hereunder or under applicable law, Borrower hereby agrees to indemnify (each of BofA and pay upon demand to) the Administrative Agenteach of its Affiliates, each Issuing Lender, each Managing Agent, each Lender and each Liquidity Provider of its and their respective Affiliates, successors, assigns, transferees and assigns and all of its and their officers, directors, shareholders, controlling persons, employees and agents and employees (each an “"Indemnified Party”) "), forthwith on demand, from and against any and ----------------- all damages, losses, claimsclaims (whether on account of settlements or otherwise), taxesjudgments, liabilities, costs, expenses liabilities and for all other amounts payablerelated costs and expenses, including reasonable attorneys’ ' fees (which attorneys may be employees of the Administrative Agent, such Issuing Lender, such Managing Agent, such Lender or such Liquidity Provider), settlement costs and disbursements and the allocated costs of in-house counsel, if any (all of the foregoing being collectively referred to as “called "Indemnified Amounts”") awarded against or that may be incurred by any of them arising out of or as a result of this Agreement, any other Facility Document or the transactions contemplated by any Facility Document, or any Receivable, Contract or Related Security, or the use of the proceeds of any Borrowing hereunder, or the issuance of any Letter of Credit by an Issuing Lender, or the funding either directly or indirectly, by a Lender of a Borrowing or ------------------- asserted against any Indemnified Party’s interest Party in the Receivables, the Contract or any Related Security excluding, however, in all of the foregoing instances:
(a) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(c) taxes imposed by the United States federal government or the jurisdiction in which such Indemnified Party’s principal executive office is located, or, in the each case of a Lender, its applicable lending office is located, on or measured by the overall net or gross income of such Indemnified Party; provided, however, that nothing contained in this sentence shall limit the liability of any Borrower Party or limit the recourse of the Indemnified Parties to any Borrower Party for amounts otherwise specifically provided to be paid by such Borrower Party under the terms of this Agreement or any other Facility Document. Without limiting the generality of the foregoing indemnification, Borrower shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Borrower or the Servicer) relating to or resulting from:
(i) any representation or warranty made by any Borrower Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Facility Document or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(ii) the failure by Borrower, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(iii) any failure of Borrower, the Performance Guarantor, the Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Facility Document;
(iv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandiseor by reason of, insurance or services in connection with the preparation for a defense of, any investigation, litigation or proceeding (whether or not an Indemnified Party is a party thereto) arising out of, related to or in connection with, any Contract, Agreement Document or the transactions contemplated herein or therein or the use of proceeds herefrom or therefrom; provided that are no Indemnified Party --------- shall be indemnified under this Section 8.01 with respect to (i) matters for ------- ---- which such Indemnified Party has been compensated pursuant to any other provision of this Agreement or (ii) Indemnified Amounts caused by or resulting from the subject gross negligence or willful misconduct of such Indemnified Party as finally determined by a court of competent jurisdiction. If any action is brought against any Indemnified Party with respect to any Contract, such Indemnified Party shall promptly notify Borrower in writing of the institution of such action and Borrower shall thereupon have the right, at its option, to elect to assume the defense of such action. If Borrower so elects, it shall promptly assume the defense of such action, including the employment of counsel (reasonably satisfactory to such Indemnified Party) and payment of expenses. Such Indemnified Party shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the employment of such counsel shall have been authorized in writing by Borrower in connection with the defense of such action or (ii) Borrower shall not have properly employed counsel reasonably satisfactory to such Indemnified Party to have charge of the defense of such action, in which case such fees and expenses shall be paid by Borrower. If such Indemnified Party shall have reasonably concluded (based upon the advice of counsel) that the representation by one counsel of the Indemnified Party and Borrower creates a conflict of interest for such counsel, the reasonable fees and expenses of such counsel shall be borne by Borrower and Borrower shall not have the right to direct the defense of such action on behalf of the Indemnified Party (but shall retain the right to direct the defense of such action on behalf of Borrower). Anything in this Section 8.01 to the contrary notwithstanding, ------------ Borrower shall not be liable for the fees and expense of more than one counsel for any Indemnified Party in any jurisdiction as to any Indemnified Amounts or for any settlement of any Contract Indemnified Amounts effected without its written consent. All Obligations of Borrower under this Section 8.01 shall ------------ survive the making and repayment of the Obligations and the termination of this Agreement. If for any reason the indemnification provided in this Section 8.01 is ------------ unavailable to an Indemnified Party or any Receivable;is insufficient to hold an Indemnified Party harmless, then Borrower shall contribute to such Indemnified Party the maximum amount that can be paid to such Indemnified Party as a result of such loss, claim, damage or liability.
Appears in 1 contract
Samples: Contingent Multicurrency Note Purchase Commitment Agreement (Storage Technology Corp)
Indemnities by Borrower. (a) Without limiting any other rights that the Administrative Agent, any Issuing Lender, any Managing Agent, Agent or any Lender or any Liquidity Provider may have hereunder or under applicable law, the Borrower hereby agrees to indemnify (and pay upon demand to) the Administrative Agent, each Issuing Lender, each Managing Agent, each Lender Agent and each Liquidity Provider of the Lenders and their respective Affiliates, successors, assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, reasonable expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Administrative Agent, such Issuing Lender, such Managing Agent, such Lender or such Liquidity Provider), settlement costs and disbursements of external counsel (all of the foregoing foregoing, subject to the exceptions in this Section and without duplication, being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement, any other Facility Document Agreement or the transactions contemplated by any Facility Documentacquisition, or any Receivable, Contract or Related Security, or the use of the proceeds of any Borrowing hereunder, or the issuance of any Letter of Credit by an Issuing Lender, or the funding either directly or indirectly, by a the Administrative Agent or any Lender of a Borrowing or any Indemnified Party’s an interest in the Receivables, the Contract or any Related Security ; excluding, however, in all of the foregoing instances:
(aA) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from fraud, bad faith, gross negligence or willful misconduct on the part of the an Indemnified Party seeking indemnificationParty;
(bB) Indemnified Amounts to the extent the same includes include losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness or financial inability or unwillingness to pay (other than a dispute giving rise to a Dilution) of the related Obligor;
(C) Excluded Taxes; or
(cD) taxes imposed by Indemnified Amounts to the United States federal government extent relating to relationships between or among each of, or any of, the jurisdiction in which such Indemnified Party’s principal executive office is locatedAdministrative Agent, or, in the case of a Lender, its applicable lending office is located, on Lenders or measured by the overall net any assignee or gross income of such Indemnified Partyparticipant thereof; provided, however, that nothing contained in this sentence shall limit the liability of any the Borrower Party or limit the recourse of the Indemnified Parties Lenders to any the Borrower Party for amounts otherwise specifically provided to be paid by such the Borrower Party under the terms of this Agreement or any other Facility DocumentAgreement. Without limiting the generality of the foregoing indemnification, the Borrower shall indemnify each the Indemnified Party Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivablesReceivables, regardless of whether reimbursement therefor would constitute recourse to Borrower or the ServicerBorrower) relating to or resulting from:
(i) any representation or warranty made by any Borrower Loan Party or any Originator Seller (or any officers of any such Person) under or in connection with this Agreement, any other Facility Transaction Document or any other information or report required to be delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(ii) the failure by Borrower, the Servicer any Loan Party or any Originator Seller to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity noncompliance of any Receivable or Contract included therein related thereto with any such applicable law, rule or regulation or any failure of Originator the Seller to keep or perform any of its obligations, express or implied, with respect to the Contract relating to any ContractReceivable;
(iii) any failure of Borrowerany Loan Party, or the Performance Guarantor, the Servicer or any Originator Seller to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Facility DocumentTransaction Document to which it is a party;
(iv) any environmental liability, products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Receivable or the related Contract;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(vi) the commingling of Collections of Receivables at any time with other funds, except as permitted or contemplated under the Transaction Documents;
(vii) any investigative, administrative or judicial proceeding brought or threatened against the Indemnified Party relating to or arising out of this Agreement or any other Transaction Document or any actual or proposed use of proceeds of the Loans made hereunder;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any failure of the Borrower to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from the Seller, free and clear of any Adverse Claim (other than as created hereunder); or any failure of the Borrower to give reasonably equivalent value to the Seller under the Purchase Agreement in consideration of the transfer by it of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(x) any failure to vest and maintain vested in the Administrative Agent (for the benefit of the Lenders) a valid first priority perfected security interest in the Collateral, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(xi) the failure to have filed, 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 Collateral, whether on the date hereof or at any subsequent time;
(xii) any action or omission by any Loan Party which reduces or impairs the rights of the Administrative Agent or the Lenders with respect to any Collateral or the value of any Collateral except as permitted or contemplated under the Transaction Documents;
(xiii) any attempt by any Person to void any Advance or the security interest in the Collateral granted hereunder, whether under statutory provision, common law or equitable action; and
(xiv) the failure of any Receivable included in the calculation of the Borrowing Base as an Eligible Receivable to be an Eligible Receivable at the time so included.
Appears in 1 contract
Samples: Credit and Security Agreement (Martin Marietta Materials Inc)
Indemnities by Borrower. (a) Without limiting any other rights that the Administrative Agent, any Issuing Lender, any Managing Agent, any Lender or any Liquidity Provider Agent and the Lenders may have hereunder or under applicable law, Borrower hereby agrees to indemnify (and pay upon demand to) the Administrative Agent, each Issuing Lender, each Managing Agent, each Lender and each Liquidity Provider and their the respective Affiliates, successors, assigns, officers, directors, agents and employees of each of the foregoing (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxesTaxes, liabilities, costs, reasonable expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Administrative Agent, such Issuing Lender, such Managing Agent, such Lender or such Liquidity Provider), settlement costs and disbursements of external counsel (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement, any other Facility Document Agreement or the transactions contemplated by any Facility Documentacquisition, or any Receivable, Contract or Related Security, or the use of the proceeds of any Borrowing hereunder, or the issuance of any Letter of Credit by an Issuing Lender, or the funding either directly or indirectly, by a the Administrative Agent or such Lender of a Borrowing or any Indemnified Party’s an interest in the Receivables, the Contract or any Related Security Receivables excluding, however, in all of the foregoing instances:
(aA) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(bB) Indemnified Amounts to the extent the same includes include losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or;
(cC) taxes imposed by the United States federal government or the jurisdiction in which such Indemnified Party’s principal executive office is located, or, in the case of a Lender, its applicable lending office is located, on or measured by the overall net or gross income Excluded Taxes of such Indemnified Party; or
(D) Indemnified Amounts to the extent they resulted from an action brought by an Indemnified Party against any other Indemnified Party not involving Borrower, Master Servicer or any Originator. provided, however, that nothing contained in this sentence shall limit the liability of any Borrower Party or limit the recourse of the Indemnified Parties Administrative Agent or any Lender to any Borrower Party for amounts otherwise specifically provided to be paid by such Borrower Party under the terms of this Agreement or any other Facility DocumentAgreement. Without limiting the generality of the foregoing indemnification, Borrower shall indemnify each the Indemnified Party Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivablesReceivables, regardless of whether reimbursement therefor would constitute recourse to Borrower or the ServicerBorrower) relating to or resulting fromfrom (but expressly excluding from such Indemnified Amounts the Indemnified Amounts and Excluded Taxes referenced in clauses (A), (B), (C) and (D) of the immediately preceding sentence:
(i) any representation or warranty made by any Borrower Party Loan Party, the Performance Guarantor or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Facility Transaction Document or any other information or report required to be delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect in any respect when made or deemed made;
(ii) the failure by Borrower, the Servicer any Loan Party or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(iii) any failure of Borrowerany Loan Party, any Originator or the Performance Guarantor, the Servicer or any Originator Guarantor to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Facility DocumentTransaction Document to which it is a party;
(iv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(vi) the commingling of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Advance or any other investigation, litigation or proceeding relating to any Loan Party or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Facility Termination Event described in Section 7.1(e);
(x) any failure of Borrower to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Borrower to give reasonably equivalent value to the applicable Originator under the RSCA in consideration of the transfer by it of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xi) any failure to vest and maintain vested in the Administrative Agent a valid and perfected security interest in the Collateral, free and clear of any Adverse Claim (except for Permitted Liens) other than to the extent that such failure to so vest and so maintain vested in the in the Administrative Agent a valid and perfected security interest in the Collateral is as a result of the failure of the Administrative Agent to take any action within its control;
(xii) the failure to have filed, 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 Collateral, whether on the date hereof or at any subsequent time, except (x) to the extent such failure or delay is caused by the Administrative Agent, or (y) to the extent not required under the Transaction Documents;
(xiii) any action or omission by any Loan Party which reduces or impairs the rights of the Administrative Agent with respect to any Collateral or the value of any Collateral;
(xiv) any attempt by any Person to void any Advance or the security interest in the Collateral granted hereunder, whether under statutory provision, common law or equitable action; and
(xv) the failure of any Receivable included in the calculation of the Borrowing Base as an Eligible Receivable to be an Eligible Receivable at the time so included.
Appears in 1 contract
Samples: Credit and Security Agreement (Tempur Sealy International, Inc.)
Indemnities by Borrower. Without limiting any other rights that the Administrative Agent, any the Issuing Lender, any Managing Agent, any Lender or any Liquidity Provider may have hereunder or under applicable law, Borrower hereby agrees to indemnify (and pay upon demand to) the Administrative Agent, each the Issuing Lender, each Managing Agent, each Lender and each Liquidity Provider and their respective Affiliates, successors, assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Administrative Agent, such the Issuing Lender, such Managing Agent, such Lender or such Liquidity Provider), settlement costs and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement, any other Facility Document or the transactions contemplated by any Facility Document, or any Receivable, Contract or Related Security, or the use of the proceeds of any Borrowing hereunder, or the issuance of any Letter of Credit by an the Issuing Lender, or the funding either directly or indirectly, by a Lender of a Borrowing or any Indemnified Party’s interest in the Receivables, the Contract or any Related Security excluding, however, in all of the foregoing instances:
(a) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(c) taxes imposed by the United States federal government or the jurisdiction in which such Indemnified Party’s principal executive office is located, or, in the case of a Lender, its applicable lending office is located, on or measured by the overall net or gross income of such Indemnified Party; provided, however, that nothing contained in this sentence shall limit the liability of any Borrower Party or limit the recourse of the Indemnified Parties to any Borrower Party for amounts otherwise specifically provided to be paid by such Borrower Party under the terms of this Agreement or any other Facility Document. Without limiting the generality of the foregoing indemnification, Borrower shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Borrower or the Servicer) relating to or resulting from:
(i) any representation or warranty made by any Borrower Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Facility Document or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(ii) the failure by Borrower, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(iii) any failure of Borrower, the Performance Guarantor, the Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Facility Document;
(iv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(vi) the commingling of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Facility Document, the transactions contemplated hereby or thereby, the use of the proceeds of any Borrowing, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Borrower, the Performance Guarantor, the Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby or by any other Facility Document;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Event of Termination or Incipient Event of Termination described in Section 7.01(e);
(x) any failure of Borrower to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from the related Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Borrower to give reasonably equivalent value to any Originator under the Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xi) any failure to vest and maintain vested in the Administrative Agent for the benefit of the Secured Parties, or to transfer to the Administrative Agent for the benefit of the Secured Parties a first priority perfected security interest in the Receivables, the Related Security and the Collections and the other Collateral, free and clear of any Adverse Claim (except as created by the Facility Documents);
(xii) any failure to vest and maintain vested in the Administrative Agent for the benefit of the Issuing Lender a first priority perfected security interest in the Letter of Credit Collateral, free and clear of any Adverse Claim (except as created by the Facility Documents)
(xiii) the failure to have filed, 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 Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Borrowing or at any subsequent time;
(xiv) any action or omission by any Borrower Party or any Originator which reduces or impairs the rights of the Administrative Agent or the Secured Parties with respect to any Collateral or the value of any Collateral;
(xv) any attempt by any Person to void the security interest in the Collateral or the Letter of Credit Collateral granted hereunder under statutory provisions or common law or equitable action;
(xvi) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included; or
(xvii) the failure of (a) any Deposit Account Bank to remit any amounts or items of payment held in a Deposit Account or in a Lock-Box pursuant to the instructions of the Administrative Agent given in accordance with this Agreement, the applicable Blocked Account Agreement or the other Facility Documents, whether by reason of the exercise of setoff rights or otherwise, or (b) any sub-servicer or any other third party with a contractual relationship with the Borrower for the acceptance or processing of Collections, to remit any Collections received by it to a Lock-Box or a Deposit Account.
Appears in 1 contract
Indemnities by Borrower. Without limiting any other rights that the Administrative Agent, any Issuing Lender, any Managing Agent, any Lender or any Liquidity Provider may have hereunder or under applicable law, Borrower hereby agrees to indemnify (and pay upon demand to) the Administrative Agent, each Issuing Lender, each Managing Agent, each Lender and each Liquidity Provider and their respective Affiliates, successors, assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Administrative Agent, such Issuing Lender, such Managing Agent, such Lender or such Liquidity Provider), settlement costs and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement, any other Facility Document or the transactions contemplated by any Facility Document, or any Receivable, Contract or Related Security, or the use of the proceeds of any Borrowing hereunder, or the issuance of any Letter of Credit by an Issuing Lender, or the funding either directly or indirectly, by a Lender of a Borrowing or any Indemnified Party’s interest in the Receivables, the Contract or any Related Security excluding, however, in all of the foregoing instances:
(a) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(c) taxes imposed by the United States federal government or the jurisdiction in which such Indemnified Party’s principal executive office is located, or, in the case of a Lender, its applicable lending office is located, on or measured by the overall net or gross income of such Indemnified Party; provided, however, that nothing contained in this sentence shall limit the liability of any Borrower Party or limit the recourse of the Indemnified Parties to any Borrower Party for amounts otherwise specifically provided to be paid by such Borrower Party under the terms of this Agreement or any other Facility Document. Without limiting the generality of the foregoing indemnification, Borrower shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Borrower or the Servicer) relating to or resulting from:
(i) any representation or warranty made by any Borrower Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Facility Document or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(ii) the failure by Borrower, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(iii) any failure of Borrower, the Performance Guarantor, the Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Facility Document;
(iv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(vi) the commingling of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Facility Document, the transactions contemplated hereby or thereby, the use of the proceeds of any Borrowing, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Borrower, the Performance Guarantor, the Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby or by any other Facility Document;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Event of Termination or Incipient Event of Termination described in Section 7.01(e);
(x) any failure of Borrower to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from the related Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Borrower to give reasonably equivalent value to any Originator under the Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xi) any failure to vest and maintain vested in the Administrative Agent for the benefit of the Secured Parties, or to transfer to the Administrative Agent for the benefit of the Secured Parties a first priority perfected security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Facility Documents);
(xii) the failure to have filed, 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 Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Borrowing or at any subsequent time;
(xiii) any action or omission by any Borrower Party or any Originator which reduces or impairs the rights of the Administrative Agent or the Secured Parties with respect to any Collateral or the value of any Collateral;
(xiv) any attempt by any Person to void the security interest in the Collateral granted hereunder under statutory provisions or common law or equitable action;
(xv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included; or
(xvi) the failure of (i) any Deposit Account Bank to remit any amounts or items of payment held in a Deposit Account or in a Lock-Box pursuant to the instructions of the Administrative Agent given in accordance with this Agreement, the applicable Blocked Account Agreement or the other Facility Documents, whether by reason of the exercise of setoff rights or otherwise, or (ii) any sub-servicer or any other third party with a contractual relationship with the Borrower for the acceptance or processing of Collections, to remit any Collections received by it to a Lock-Box or a Deposit Account.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Newell Rubbermaid Inc)
Indemnities by Borrower. Without limiting any other rights that the Administrative Agent, which any Issuing Lender, any Managing Agent, any Lender or any Liquidity Provider Indemnified Party may have hereunder or under applicable law, Borrower hereby agrees to indemnify (each of BofA and pay upon demand to) the Administrative Agenteach of its Affiliates, each Issuing Lender, each Managing Agent, each Lender and each Liquidity Provider of its and their respective Affiliates, successors, assigns, transferees and assigns and all of its and their officers, directors, shareholders, controlling persons, employees and agents and employees (each an “"{xe "Indemnified Party"}Indemnified Party”) "), forthwith on demand, from and against any and all damages, losses, claimsclaims (whether on account of settlements or otherwise), taxesjudgments, liabilities, costs, expenses liabilities and for all other amounts payablerelated costs and expenses, including reasonable attorneys’ ' fees (which attorneys may be employees of the Administrative Agent, such Issuing Lender, such Managing Agent, such Lender or such Liquidity Provider), settlement costs and disbursements and the allocated costs of in-house counsel, if any (all of the foregoing being collectively referred to as “called "{xe "Indemnified Amounts"}Indemnified Amounts”") awarded against or that may be incurred by any of them arising out of or as a result of this Agreement, any other Facility Document or the transactions contemplated by any Facility Document, or any Receivable, Contract or Related Security, or the use of the proceeds of any Borrowing hereunder, or the issuance of any Letter of Credit by an Issuing Lender, or the funding either directly or indirectly, by a Lender of a Borrowing or asserted against any Indemnified Party’s interest Party in the Receivables, the Contract or any Related Security excluding, however, in all of the foregoing instances:
(a) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(c) taxes imposed by the United States federal government or the jurisdiction in which such Indemnified Party’s principal executive office is located, or, in the each case of a Lender, its applicable lending office is located, on or measured by the overall net or gross income of such Indemnified Party; provided, however, that nothing contained in this sentence shall limit the liability of any Borrower Party or limit the recourse of the Indemnified Parties to any Borrower Party for amounts otherwise specifically provided to be paid by such Borrower Party under the terms of this Agreement or any other Facility Document. Without limiting the generality of the foregoing indemnification, Borrower shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Borrower or the Servicer) relating to or resulting from:
(i) any representation or warranty made by any Borrower Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Facility Document or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(ii) the failure by Borrower, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(iii) any failure of Borrower, the Performance Guarantor, the Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Facility Document;
(iv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandiseor by reason of, insurance or services that are in connection with the subject of preparation for a defense of, any investigation, litigation or proceeding (whether or not an Indemnified Party is a party thereto) arising out of, related to or in connection with, any Contract or Agreement Document, or the transactions contemplated herein or therein or the use of proceeds herefrom or therefrom; provided that no Indemnified Party shall be indemnified under this Section 8.01 with respect to (i) matters for which such Indemnified Party has been compensated pursuant to any Receivable;other provision of this Agreement or (ii) Indemnified Amounts caused by or resulting from the gross negligence or willful misconduct of such Indemnified Party as finally determined by a court of competent jurisdiction. If any action is brought against any Indemnified Party with respect to any Contract, such Indemnified Party shall promptly notify Borrower in writing of the institution of such action and Borrower shall thereupon have the right, at its option, to elect to assume the defense of such action. If Borrower so elects, it shall promptly assume the defense of such action, including the employment of counsel (reasonably satisfactory to such Indemnified Party) and payment of expenses. Such Indemnified Party shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the employment of such counsel shall have been authorized in writing by Borrower in connection with the defense of such action or (ii) Borrower shall not have properly employed counsel reasonably satisfactory to such Indemnified Party to have charge of the defense of such action, in which case such fees and expenses shall be paid by Borrower. If such Indemnified Party shall have reasonably concluded (based upon the advice of counsel) that the representation by one counsel of the Indemnified Party and Borrower creates a conflict of interest for such counsel, the reasonable fees and expenses of such counsel shall be borne by Borrower and Borrower shall not have the right to direct the defense of such action on behalf of the Indemnified Party (but shall retain the right to direct the defense of such action on behalf of Borrower). Anything in this Section 8.01 to the contrary notwithstanding, Borrower shall not be liable for the fees and expense of more than one counsel for any Indemnified Party in any jurisdiction as to any Indemnified Amounts or for any settlement of any Indemnified Amounts effected without its written consent. All Obligations of Borrower under this Section 8.01 shall survive the making and repayment of the Obligations and the termination of this Agreement. If for any reason the indemnification provided in this Section 8.01 is unavailable to an Indemnified Party or is insufficient to hold an Indemnified Party harmless, then Borrower shall contribute to such Indemnified Party the maximum amount that can be paid to such Indemnified Party as a result of such loss, claim, damage or liability.
Appears in 1 contract
Samples: Contingent Multicurrency Note Purchase Commitment Agreement (Storage Technology Corp)
