Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer and its assigns and the officers, directors, agents and employees of Buyer and its assigns (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 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however: (i) Indemnified Amounts to the extent that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence; (ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables; (iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or (iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C)), Originator shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from: (A) any representation or warranty made by or on behalf of Originator (or any officers of any such Person) in this Agreement, any other Transaction Document or any other information or report delivered by such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made; (B) the failure by 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; (C) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document; (D) any products liability, environmental, 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; (E) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceeding), 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; (F) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds; (G) 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 a Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby; (H) any Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC; (I) any failure to vest in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents); (J) 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 a Purchase or at any subsequent time; (K) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount); (L) any avoidance or attempt by Originator or any of its Affiliates to void the Purchase hereunder under statutory provisions or common law or equitable action, and (M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxes.
Appears in 4 contracts
Samples: Receivables Sale Agreement (Tennessee Gas Pipeline Co), Receivables Sale Agreement (Anr Pipeline Co), Receivables Sale Agreement (Colorado Interstate Gas Co)
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (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 such Indemnified Party) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however:
(i) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s 's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns the Indemnified Parties to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in but subject to the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))same limitations, Originator shall indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy or insolvency of the Obligor or the Obligor's financial inability to pay) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) 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 Incremental Purchase or a PurchaseReinvestment, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) 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 Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);Documents);
(Jxi) 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 a any Incremental Purchase or Reinvestment or at any subsequent time;time;
(Kxii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable; and
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, and
(M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxes.
Appears in 3 contracts
Samples: Receivables Sale Agreement (Pennsylvania Power Co), Receivables Sale Agreement (Pennsylvania Electric Co), Receivables Sale Agreement (Pennsylvania Electric Co)
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer and its assigns (including, without limitation, the Purchasers and the Agent), officers, directors, agents and employees of Buyer and its assigns (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, taxes and liabilities, costs, reasonable costs and expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of Buyer) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however:
(i) Indemnified Amounts Receivables pursuant to the extent that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without Accordingly, without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury liability 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;Contract;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services, in any such case either (i) as a result of any event, fact or circumstance that arose or existed at a time before such Receivable was purchased by Buyer, or (ii) at any time after such purchase, resulting from any action taken by Originator, or any failure to act by Originator where required, with respect to such Receivable;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) any investigation, litigation or proceeding related to or arising from (i) this Agreement or any of the other Transaction DocumentDocuments as a result of Originator’s participation therein, the transactions contemplated hereby, (ii) the use of the proceeds of a Purchasesales by Originator, (iii) the ownership of the Receivables by Originator prior to their sale to Buyer or, (iv) the ownership of the Receivables by Buyer after the purchase thereof by Buyer and resulting from any action by Originator, or any other investigation, litigation or proceeding relating failure to act by Originator where required;
(viii) any inability to litigate any claim against any Obligor in which respect of any Indemnified Party becomes involved 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, in each case as a result of circumstances that existed on or prior to the transactions contemplated hereby;date of purchase of such Receivable by Buyer;
(Hix) any Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ix) any the failure to vest in BuyerBuyer at the time of sale to Buyer a first priority, or to transfer to Buyer, legal and equitable title to, and perfected ownership of, interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);Documents and except in respect of Permitted Liens);
(J) 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 a Purchase or at any subsequent time;
(Kxi) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);unless taken in accordance with the Transaction Documents);
(Lxii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, ; and
(Mxiii) the failure by Originator or any Affiliate to pay when due any taxestaxes which are Originator’s responsibility to pay, including without limitation, GST, PST or other sales, excise or personal property taxestaxes payable in connection with the Receivables. Notwithstanding anything contained herein to the contrary, Originator shall have no obligation to indemnify any Indemnified Party from and against:
(i) 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;
(ii) Indemnified Amounts to the extent the same include losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy, lack of creditworthiness or failure to pay of or by the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the U.S. Tax Characterization.
Appears in 3 contracts
Samples: Receivables Sale Agreement, Receivables Sale Agreement (Johnsondiversey Holdings Inc), Receivables Sale Agreement (Johnsondiversey Inc)
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, the Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (each 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 Buyer or any such assign) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the ReceivablesReceivables originated by the Originator, excluding, however, in all of the foregoing cases:
(ia) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the United States, the Indemnified Party’s jurisdiction of organization (or, in the case of an individual, primary residence) or any other jurisdiction in which such Indemnified Party’s principal executive office is located, Party has established a taxable nexus other than in connection with the transactions contemplated hereby and by the Purchase Agreement on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; Characterization; provided, however, that nothing contained in this sentence shall limit the liability of the Originator or limit the recourse of Buyer or its assigns to the Originator for amounts otherwise specifically provided to be paid by the Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification andindemnification, but subject to the exclusions in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (Aa), (Bb) or and (C))c) above, the Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to the Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of the Originator (or any officers of any such Personits officers) under or in connection with this Agreement, any other Transaction Document to which the Originator is a party 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 when made or deemed made;made;
(Bii) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable originated by it, or any Contract related thereto, or the nonconformity of any such Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of the Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;such Contract;
(Ciii) any failure of the Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document to which it is a party;
(Div) any products liability, environmentalenvironmental liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services goods that are the subject of any Contract or any Receivable;Receivable originated by the Originator;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount originated by the Originator (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise goods or services related to such Receivable or the furnishing or failure to furnish such merchandise goods or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of such Receivables at any time with other funds;funds;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction DocumentDocument to which the Originator is a party, the transactions contemplated hereby, the use by the Originator of the proceeds of a Purchase, the ownership of the Receivables any purchase from it hereunder or any other investigation, litigation or proceeding relating to the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(H) any Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLChereby;
(Iviii) any inability to litigate any claim against any Obligor in respect of any such 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) (A) failure of the Originator generally to pay its debts as such debts become due or admission by the Originator in writing of its inability to pay its debts generally or any making by the Originator of a general assignment for the benefit of creditors; or (B) the institution of any proceeding by or against the Originator seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property, or (C) the taking by the Originator of any corporate action to authorize any of the actions set forth in clauses (A) or (B) above in this clause (ix);
(x) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, an exclusive perfected ownership interest in the Receivables, Receivables originated by the Originator and the associated Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);Documents);
(Jxi) 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 such Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of a Purchase sale to Buyer or at any subsequent time;time; and
(Kxii) any action or omission by the Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);
(L) any avoidance or attempt by Originator or any of its Affiliates to void the Purchase hereunder under statutory provisions or common law or equitable action, and
(M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxesReceivable.
Appears in 3 contracts
Samples: Receivables Sale Agreement (Convergys Corp), Receivables Sale Agreement (Convergys Corp), Receivables Sale Agreement (Convergys Corp)
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (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 Buyer) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however:
(i) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are solely due to the credit risk uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;or any obligor under any Related Security therefor; and
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; Excluded Taxes; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid in respect of any representations or warranties made by Originator under the terms of or in connection with this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by such Person Originator pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality);
(Div) any products liability, environmental, personal injury liability 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;Contract;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including including, without limitation but subject to the foregoing parenthetical, 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) 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 a the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) 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 Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);other than any Permitted Adverse Claim);
(Jxi) 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 a the Purchase or at any subsequent time;time;
(Kxii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable;
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action;
(xiv) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(Mxv) the failure by Originator or any Affiliate to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Originator as a result of the performance of this Agreement or the sale of an interest in the Receivables, other than Excluded Taxes.
Appears in 2 contracts
Samples: Receivables Sale Agreement (Timken Co), Receivables Sale Agreement (Timken Co)
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns and the assigns, successors officers, directors, agents agents, employees and employees of Buyer and its assigns Affiliates (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 Buyer or any such assign) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, Contracts or Related Security, excluding, however:
(ia) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the United States federal government or the jurisdiction in which such Indemnified Party’s 's principal executive office is located, on or measured by the overall net or gross income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; Party; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns the Indemnified Parties to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional AmountsAgreement or any other Facility Document. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the each Indemnified Parties Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Facility Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which thereto that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Facility Document;
(Div) any products liability, environmental, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Facility Document, the transactions contemplated herebyhereby or thereby, the use of the proceeds of a Purchaseany Purchase Price payment, the ownership of the Receivables Receivables, any lien on accounts receivable under any Springing Lien Indenture or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby or by any other Facility Document;
(Hviii) 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 Termination Event or Potential Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the ReceivablesReceivables and the Collections, and all of Originator's right, title and interest in the Related Security and associated with the CollectionsReceivables, in each case, free and clear of any Adverse Claim (except as created by the Transaction Documents);Facility Documents);
(Jxi) 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 a the Purchase or at any subsequent time;time;
(Kxii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable;
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the any Purchase hereunder under statutory provisions or common law or equitable action, ; and
(Mxiv) the failure of any Receivable included in the calculation of the Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable at the time so included.
(xv) 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 Program Agent given in accordance with this Agreement, the applicable Blocked Account Agreement or the other Facility Documents, whether by Originator reason of the exercise of setoff rights or otherwise, (ii) any sub-servicer or any Affiliate other third party with a contractual relationship with the Originator for the acceptance or processing of Collections, to pay when due remit any taxes, including sales, excise Collections received by it to a Lock-Box or personal property taxesa Deposit Account.
Appears in 2 contracts
Samples: Receivables Sale Agreement (Puget Sound Energy Inc), Receivables Sale Agreement (Puget Energy Inc /Wa)
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer (and pay upon demand to) Buyer, its assigns and the their respective assigns, officers, directors, agents and employees of Buyer and its assigns (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 Buyer or its assigns) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however, in all of the foregoing instances:
(ia) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification andindemnification, but subject to the exclusions in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (Aa), (Bb) or and (C))c) above, Originator shall indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document to which Originator is a party or any other written information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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 regulation, the violation of which shall cause the Receivables to be uncollectible or unenforceable by Originator, Buyer or its assignees in whole or in part, or any failure of Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document to which it is a party;
(Div) any products liability, environmental, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale provision of the merchandise goods, electricity, gas or services related to such Receivable or the furnishing or failure to furnish such merchandise goods, electricity, gas or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) any investigation, litigation or proceeding initiated by a party other than the Buyer or the Administrative Agent related to or arising from this Agreement or any other Transaction Document, either Servicing Agreement or any other Basic Document (as defined in either Servicing Agreement) to which Originator is a party, the transactions contemplated hereby, the use of the proceeds of a any Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby; provided that Originator shall have no obligation to indemnify any Indemnified Party under this paragraph (vii) for Indemnified Amounts to the extent a final judgement 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;(20)
(Hviii) 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 Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and a first priority perfected ownership ofinterest in, the Receivables, Receivables and the associated Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);Documents);
(Jxi) 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 a Purchase or at any subsequent time;
(K) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);
(L) any avoidance or attempt by Originator or any of its Affiliates to void the Purchase hereunder under statutory provisions or common law or equitable action, and
(M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxes.Related
Appears in 2 contracts
Samples: Intercreditor Agreement (Consumers Energy Co), Intercreditor Agreement (Consumers Energy Co)
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (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 Buyer or any such assign) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the ReceivablesReceivables originated by Originator, excluding, however:
(ia) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables originated by Originator that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; characterization for income tax purposes of the acquisition by the Purchasers of Receivable Interests under the Purchase Agreement as a loan or loans by the Purchasers to Buyer secured by, among other things, the Receivables originated by Originator, the Related Security and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification andindemnification, in the case of the following clauses (D) through (M), but subject in each case without limiting Originator’s obligations under the following to clauses (Aa), (Bb) or and (C))c) above, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of Originator) under or in connection with any such Person) in Purchase Report, this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, thereto for which Buyer has not received a Purchase Price Credit that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury or damage suitdamage, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the Originator’s use of the proceeds of a Purchasethe Purchase from it hereunder, the ownership of the Receivables originated by Originator or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) 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 Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(b);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the ReceivablesReceivables originated by Originator and the associated Collections, and all of Originator’s right, title and interest in the Related Security and the Collectionsassociated with such Receivables, in each case, free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(Jxi) 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 ReceivableReceivable originated by Originator, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of a the Purchase from Originator hereunder or at any subsequent time;time;
(Kxii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable;
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase from Originator hereunder under statutory provisions or common law or equitable action, ; and
(Mxiv) the failure of any Receivable reflected as an Eligible Receivable on any Purchase Report prepared by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxesbe an Eligible Receivable at the time acquired by Buyer.
Appears in 2 contracts
Samples: Receivables Sale Agreement (Amerisourcebergen Corp), Receivables Sale Agreement (Amerisourcebergen Corp)
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (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 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however:
(i) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s 's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(A1) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;made;
(B2) the failure by Originator 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;Contract;
(C3) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(D4) any products liability, environmental, personal injury or damage suit, 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;Receivable;
(E5) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(F6) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(G7) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated herebyhereby or thereby, the use of the proceeds of a Purchase, the ownership of the Receivables Receivables, or any other investigation, litigation or proceeding relating to Buyer or Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(H8) 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;
(9) any Termination Amortization Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(I10) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(J11) 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 a the Purchase or at any subsequent time;time;
(K12) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable; and
(L13) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, and
(M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxes.
Appears in 2 contracts
Samples: Receivables Sale Agreement (Anixter International Inc), Receivables Sale Agreement (Anixter International Inc)
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator Originator, including in its capacity as Sub-Servicer for Buyer, hereby agrees to indemnify Buyer and its assigns (including, without limitation, the Purchasers and the Agent), officers, directors, agents and employees of Buyer and its assigns (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, taxes and liabilities, costs, reasonable costs and expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of Buyer) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however:
(i) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of any other provision of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury liability 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;Contract;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) 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 a the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) 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 Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);Documents);
(J) 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 a Purchase or at any subsequent time;
(Kxi) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable;
(Lxii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, ; and
(Mxiii) any of the failure by items described in Section 10.2 of the Purchase Agreement related to the Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxesacting in its capacity as Sub-Servicer.
Appears in 2 contracts
Samples: Receivables Sale Agreement (Johnsondiversey Inc), Receivables Sale Agreement (Johnsondiversey Holdings Inc)
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (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 Buyer or any such assign) 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 Agreement, or the use of the proceeds of any purchase hereunder, or the acquisition, funding or ownership, either directly or indirectly, by Buyer (or its assigns assigns) of an interest in the Receivables, or any Receivable or any Contract or any Related Security, excluding, however:
(i) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests under the Purchase Agreement as a loan or loans by the Purchasers to Buyer secured by, among other things, the Receivables, the Related Security and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which thereto that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury or damage suitdamage, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) 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 a Purchaseany Purchase Price Payment, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) 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 Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the ReceivablesReceivables and the Collections, and all of Originator’s right, title and interest in the Related Security and associated with the CollectionsReceivables, in each case, free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(Jxi) 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 a the Purchase or at any subsequent time;time;
(Kxii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable;
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, ; and
(Mxiv) the failure by Originator or of any Affiliate Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to pay when due any taxes, including sales, excise or personal property taxesbe an Eligible Receivable at the time so included.
Appears in 2 contracts
Samples: Receivables Sale Agreement (Avnet Inc), Receivables Sale Agreement (Avnet Inc)
Indemnities by Originator. (a) Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to to, jointly and severally, indemnify (and pay upon demand to) Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (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 Buyer or any such assign) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") actually awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivablesany Covered Matter (as defined below), excluding, however:
(i) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk late, delinquent or uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy, payment behavior or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s 's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; characterization for income tax purposes of the making (either directly or indirectly) by any Lender of Loans under the Credit Agreement as a loan or loans by such Lender to Buyer secured by, among other things, the Receivables, the Related Security and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Originator or limit the recourse of Buyer or its assigns to any Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement; or.
(ivb) Indemnified Amounts relating Subject in each case to clauses (a)(i), (ii) and affecting only Additional Amounts. Without limiting (iii) above, and except to the generality of the foregoing indemnification andextent Buyer has received payments or reductions as contemplated by Section 1.4(a), in the case each of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C)), Originator shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting frombe a "Covered Matter":
(Ai) the negotiation, execution, delivery or administration of this Agreement or any other Transaction Document by Buyer or the use of proceeds of the Purchase by any Originator;
(ii) any representation or warranty made by or on behalf of an Originator (or any officers of Originator) under or in connection with any such Person) in Purchase Report, this Agreement, any other Transaction Document or any other information or report delivered by such Person an Originator pursuant hereto or thereto, thereto for which Buyer has not received a Purchase Price Credit that shall have been false or incorrect when made or deemed made;made;
(Biii) the failure by Originator any Originator, to comply with any applicable law, rule or regulation with respect to any Receivable Receivable, Related Security or Contract related thereto, or the nonconformity of any Receivable Receivable, Related Security 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;Contract or Related Security;
(Civ) any failure of any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Dv) any products liability, environmental, personal injury or property damage suit, suit or other similar claim (including, without limitation, any claim for unpaid sales, use, excise, personal property or other taxes) arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;Receivable or Related Security, or any suit or other claim arising out of or in connection with the origination or, during any time prior to the Purchase hereunder, the servicing, administration or collection of any Contract or any Receivable or Related Security or the terms of any Contract or any Receivable or Related Security, to the extent not in compliance with the Credit and Collection Policy;
(Evi) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including including, without limitation, a defense based on such Receivable Receivable, the Related Security or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvii) any failure of the Originator to provide the Servicer with all information and documentation reasonably necessary for the enforcement against any Obligor of the applicable Receivable or Related Security or of the obligations of such Obligor under the corresponding Contract;
(viii) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds or any failure of Collections to be deposited into a Lock-Box or a Collection Account as required by Section 4.1(i) hereof;
(Gix) 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 a Purchase, the Purchase hereunder or the ownership of the Receivables Receivables, or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hx) 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 or any legal action, suit or other proceeding on the grounds of sovereignty or otherwise, or as a result of the failure of the Originator to have or maintain any license or other government authorization, to be qualified to do business in any jurisdiction or to file any notice of business activities or similar report in such jurisdiction;
(xi) any Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(e);
(Ixii) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, the Related Security Receivables and the Collections, and all of any Originator's right, title and interest in the Contracts and Related Security associated with the Receivables, in each case, free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(Jxiii) 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 ReceivableReceivable or Contract, the Related Security and the Collections with respect thereto, and the proceeds of any thereof, whether at the time of a the Purchase or at any subsequent time;time;
(Kxiv) any action or omission by any Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);to the extent such action or omission is inconsistent with the agreements of the Originators contained in this Agreement;
(Lxv) any avoidance failure of the Originator to receive reasonably equivalent value and fair consideration for the Purchase hereunder as of the date of such Purchase, or any attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action;
(xvi) the failure of any Receivable reflected as an Eligible Receivable on any Purchase Report to be an Eligible Receivable at the time acquired by Buyer, or the acquisition, either directly or indirectly, by Buyer of an interest in any Ineligible Receivable, or the ownership of any such Ineligible Receivable; and
(Mxvii) the failure by Originator acquisition or ownership of any Affiliate to pay when due Receivable arising under any taxes, including sales, excise or personal property taxesTemporarily Eligible Municipal Contract.
Appears in 2 contracts
Samples: Receivables Sale Agreement (Allied Waste Industries Inc), Receivables Sale Agreement (Allied Waste Industries Inc)
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (each 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 Buyer or any such assign) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however:
(ia) Indemnified Amounts to the extent that 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests under the Purchase Agreement as a loan or loans by the Purchasers to Buyer secured by, among other things, the Receivables; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefore would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which thereto that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury or damage suit, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of allocable to the Receivables at any time with other funds;funds;
(Gvii) 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 a Purchaseany Purchase Price payment, the ownership of the Receivables and the associated Related Security, or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) 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 Termination Event described in Section 5.1(d)(iii7.1(f) with respect to Buyer or Funding LLC(g);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, Receivables and the associated Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(Jxi) 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 theretoReceivables, and the proceeds of any thereof, whether at the time of a the Purchase or at any subsequent time;time;
(Kxii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable; and
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, and
(M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxes.
Appears in 2 contracts
Samples: Receivable Sale Agreement (Ferrellgas Partners Finance Corp), Receivable Sale Agreement (Ferrellgas Partners Finance Corp)
Indemnities by Originator. Without limiting any other rights that Buyer or its assigns may have hereunder or under applicable law, Originator hereby agrees to indemnify (and pay promptly after demand to) Buyer and its assigns and the their respective assigns, successors, officers, directors, agents agents, employees and employees of Buyer and its assigns Affiliates (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, out-of-pocket costs, expenses and for all other amounts payable, including reasonable attorneys’ fees 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, Contracts or Related Security, excluding, howeverhowever in all of the foregoing instances:
(ia) 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, it being the intention of Originator to indemnify indemnification or material breach by such Indemnified Party against of the consequences express terms of its own negligence;the Transaction Documents;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; characterization for income tax purposes of the acquisition by the Administrative Agent, for the benefit of the Purchasers and the L/C Issuers, of interests in the Receivables as a loan or loans made by the Purchasers to the Buyer secured by the Receivables, the Related Security, the Collections and the Collection Accounts; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns the Indemnified Parties to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional AmountsAgreement or any other Transaction Document. Without limiting the generality of the foregoing indemnification andindemnification, but subject to the exclusions set forth in the case of the following clauses (Da) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (Bc) or (C))above, Originator shall indemnify the each Indemnified Parties Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which thereto that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated herebyhereby or thereby, the use of the proceeds of any Purchase or any draw under a PurchaseLetter of Credit, the ownership of the Receivables or any interest therein or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby or by any other Transaction Document;
(Hviii) 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 Termination Event or Potential Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ii) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, any Receivable and the Related Security Security, Collection Accounts and the CollectionsCollections with respect thereto, in each case, free and clear of any Adverse Claim (except other than as created by the Transaction Documents);Documents), or any failure of Buyer to give reasonably equivalent value to Originator hereunder in consideration of the transfer by Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action; or (ii) any failure of MPC LP to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from Marathon Canada, free and clear of any Adverse Claim (other than as created hereunder), or any failure of MPC LP to give reasonably equivalent value to Marathon Canada under the Transfer Agreement in consideration of the transfer by Marathon Canada of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(Jxi) 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 a any Purchase or at any subsequent time;time;
(Kxii) any action or omission (other than as expressly contemplated by Originator in contravention of this Agreement or any other Principal Transaction Document Document) by Originator which reduces or impairs the rights of Buyer (or any of its assigns) with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable;
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the any Purchase hereunder under statutory provisions or common law or equitable action, and;
(Mxiv) 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
(xv) any Letter of Credit issued in connection herewith or the use of the proceeds thereof by Originator the applicable beneficiary or any Affiliate to pay when due any taxesaffiliate, including salesagent, excise employee or personal property taxesassignee thereof. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT, IN WHOLE OR IN PART, CAUSED BY ANY NEGLIGENT ACT OR OMISSION OF ANY L/C ISSUER, ANY PURCHASER, THE ADMINISTRATIVE AGENT, ANY MANAGING AGENT OR THEIR RESPECTIVE AFFILIATES.
Appears in 2 contracts
Samples: Receivables Sale Agreement (Marathon Petroleum Corp), Receivables Sale Agreement (Marathon Petroleum Corp)
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer (and pay upon demand to) Buyer, its assigns and the their respective assigns, officers, directors, agents and employees of Buyer and its assigns (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 Buyer or its assigns) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however, in all of the foregoing instances:
(ia) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification andindemnification, but subject to the exclusions in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (Aa), (Bb) or and (C))c) above, Originator shall indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document to which Originator is a party or any other written information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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 regulation, the violation of which shall cause the Receivables to be uncollectible or unenforceable by Originator, Buyer or its assignees in whole or in part, or any failure of Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document to which it is a party;
(Div) any products liability, environmental, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale provision of the merchandise goods, electricity, gas or services related to such Receivable or the furnishing or failure to furnish such merchandise goods, electricity, gas or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) any investigation, litigation or proceeding initiated by a party other than the Buyer or the Administrative Agent related to or arising from this Agreement or any other Transaction Document, the Servicing Agreement or any other Basic Document (as defined in the Servicing Agreement) to which Originator is a party, the transactions contemplated hereby, the use of the proceeds of a any Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby; provided that Originator shall have no obligation to indemnify any Indemnified Party under this paragraph (vii) for Indemnified Amounts to the extent a final judgement 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;
(Hviii) 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 Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and a first priority perfected ownership ofinterest in, the Receivables, Receivables and the associated Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);Documents);
(Jxi) 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 a any Purchase or at any subsequent time;time;
(Kxii) any action or omission by Originator (other than in contravention of accordance with or as contemplated by this Agreement or any other Transaction Document Document) which reduces or impairs the rights of Buyer with respect to any Receivable and the Related Security and Collections with respect thereto or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);and the Related Security and Collections with respect thereto; and
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the any Purchase hereunder under statutory provisions or common law or equitable action, and
(M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxes.
Appears in 2 contracts
Samples: Receivables Sale Agreement (CMS Energy Corp), Receivables Sale Agreement (CMS Energy Corp)
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (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 not be employees of Buyer or any such assign) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however:
(ia) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the jurisdiction in which such Indemnified Party’s 's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; characterization for income tax purposes of the acquisition by the Purchasers of Receivable Interests under the Purchase Agreement as a loan or loans by the Purchasers to Buyer secured by, among other things, the Receivables, the Related Security and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification andindemnification, in the case of the following clauses (D) through (M), but subject in each case without limiting Originator’s obligations under the following to clauses (Aa), (Bb) or and (C))c) above, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of Originator) under or in connection with any such Person) in Purchase Report, this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, thereto for which Buyer has not received a Purchase Price Credit that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury or damage suitdamage, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) 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 a Purchasethe Purchase hereunder, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) 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 Termination Event described in Section 5.1(d)(iii5.1(d) with respect to Buyer or Funding LLC;
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the ReceivablesReceivables and the Collections, and all of Originator's right, title and interest in the Related Security and associated with the CollectionsReceivables, in each case, free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(Jxi) 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 a the Purchase or at any subsequent time;time;
(Kxii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable;
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, ; and
(Mxiv) the failure of any Receivable reflected as an Eligible Receivable on any Purchase Report to be an Eligible Receivable at the time acquired by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxesBuyer.
Appears in 2 contracts
Samples: Receivables Sale Agreement (Adc Telecommunications Inc), Receivables Sale Agreement (Adc Telecommunications Inc)
Indemnities by Originator. Without limiting any other rights that Buyer or its assigns may have hereunder or under applicable law, Originator hereby agrees to indemnify (and pay promptly after demand to) Buyer and its assigns and the their respective assigns, successors, officers, directors, agents agents, employees and employees of Buyer and its assigns Affiliates (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, out-of-pocket costs, expenses and for all other amounts payable, including reasonable attorneys’ fees 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, Contracts or Related Security, excluding, howeverhowever in all of the foregoing instances:
(ia) 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, it being the intention of Originator to indemnify indemnification or material breach by such Indemnified Party against of the consequences express terms of its own negligence;the Transaction Documents;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; characterization for income tax purposes of the acquisition by the Administrative Agent, for the benefit of the Purchasers and the L/C Issuers, of interests in the Receivables as a loan or loans made by the Purchasers to the Buyer secured by the Receivables, the Related Security, the Collections and the Collection Accounts; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns the Indemnified Parties to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional AmountsAgreement or any other Transaction Document. Without limiting the generality of the foregoing indemnification andindemnification, but subject to the exclusions set forth in the case of the following clauses (Da) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (Bc) or (C))above, Originator shall indemnify the each Indemnified Parties Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which thereto that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated herebyhereby or thereby, the use of the proceeds of any Purchase or any draw under a PurchaseLetter of Credit, the ownership of the Receivables or any interest therein or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby or by any other Transaction Document;
(Hviii) 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 Termination Event or Potential Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ii) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, any Receivable and the Related Security Security, Collection Accounts and the CollectionsCollections with respect thereto, in each case, free and clear of any Adverse Claim (except other than as created by the Transaction Documents);Documents), or any failure of Buyer to give reasonably equivalent value to Originator hereunder in consideration of the transfer by Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action; or (ii) any failure of MPC LP to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from Marathon Canada, free and clear of any Adverse Claim (other than as created hereunder), or any failure of MPC LP to give reasonably equivalent value to Marathon Canada under the Receivables Transfer Agreement (Canada) in consideration of the transfer by Marathon Canada of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action; or (iii) any failure of MPC LP to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from Marathon Supply, free and clear of any Adverse Claim (other than as created hereunder), or any failure of MPC LP to give reasonably equivalent value to Marathon Supply under
(Jxi) 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 jurisdiction, the PPSA 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 a any Purchase or at any subsequent time;time;
(Kxii) any action or omission (other than as expressly contemplated by Originator in contravention of this Agreement or any other Principal Transaction Document Document) by Originator which reduces or impairs the rights of Buyer (or any of its assigns) with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable;
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the any Purchase hereunder under statutory provisions or common law or equitable action, and;
(Mxiv) 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
(xv) any Letter of Credit issued in connection herewith or the use of the proceeds thereof by Originator the applicable beneficiary or any Affiliate to pay when due any taxesaffiliate, including salesagent, excise employee or personal property taxesassignee thereof. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT, IN WHOLE OR IN PART, CAUSED BY ANY NEGLIGENT ACT OR OMISSION OF ANY L/C ISSUER, ANY PURCHASER, THE ADMINISTRATIVE AGENT, ANY MANAGING AGENT OR THEIR RESPECTIVE AFFILIATES.
Appears in 1 contract
Samples: Receivables Sale Agreement (Marathon Petroleum Corp)
Indemnities by Originator. Without limiting any other rights that Buyer ------------------------- any such Person may have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer the Company and each of its successors, transferees and assigns and the all officers, directors, shareholders, controlling persons, employees and agents and employees of Buyer and its assigns any of the foregoing (each an “of the foregoing Persons being individually called a "First Tier Indemnified Party”) "), forthwith on ---------------------------- demand, from and against any and all damages, losses, claims, taxesjudgments, liabilities, costs, expenses liabilities and for all other amounts payablerelated costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of collectively, the foregoing being collectively referred to as “"First Tier Indemnified Amounts”") awarded ------------------------------ against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, following:
(a) the transfer by Buyer or its assigns Originator of an interest in any Pool Receivable or Related Property to any Person other than the Receivables, excluding, however:Company;
(ib) Indemnified Amounts to the extent that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part breach of the Indemnified Party seeking indemnification, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C)), Originator shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(A) any representation or warranty made by or on behalf of Originator (or any officers of any such Person) in pursuant to this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, thereto which shall have been false or incorrect in any respect when made or deemed made;made;
(Bc) the failure by Originator to comply with any applicable law, rule or regulation with respect to any Pool Receivable or Contract the related theretoContract, or the nonconformity of any Pool Receivable or the related Contract included therein with any such applicable law, rule or regulation regulation;
(d) the failure to vest and maintain vested in the Company an ownership interest in the Pool Receivables generated by Originator and Related Property free and clear of any Lien, other than a Lien arising solely as a result of an act of the Company, whether existing at the time of the transfer or contribution of such Pool Receivables or at any time thereafter;
(e) any claim resulting from the sale of the merchandise or services related to any Pool Receivable or the furnishing or failure to furnish such merchandise or services; or any failure products liability claim arising out of Originator or in connection with merchandise or services that are the subject of any Pool Receivable;
(f) any investigation, litigation or proceeding related to keep this Agreement or perform the use of proceeds of transfers hereunder or the ownership of, or in respect of, any of its obligationsPool Receivables, express Related Property or impliedContract;
(g) any tax or governmental fee or charge (other than any tax band upon or measured by net income), all interest and penalties thereon or with respect to 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 transfer, contribution or ownership of the Pool Receivables or any Contract;Related Property connected with any such Pool Receivables;
(Ch) any failure of Originator to perform its duties, covenants duties or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Agreement; and
(D) any products liability, environmental, 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;
(Ei) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligorbankruptcy) of the Obligor to the payment of any Pool Receivable other than any portion thereof constituting an Additional Amount (including including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms); excluding, however, (i) First Tier Indemnified Amounts to the extent resulting --------- ------- from gross negligence or based on such Obligor being immune from claims willful misconduct on the grounds on sovereign immunity or otherwise immune or not subject part of a First Tier Indemnified Party and (ii) any indemnification which has the effect of recourse to legal action, suit or proceeding), or any other claim resulting from the sale Originator for non-payment of the merchandise or services related Pool Receivables due to such Receivable or credit reasons (except as otherwise specifically provided in this Agreement). If for any reason the furnishing or failure indemnification provided above in this Section ------- 7.1 is unavailable to furnish such merchandise or services;
(F) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;
(G) 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 a Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any First Tier Indemnified Party becomes involved or is insufficient to hold --- such First Tier Indemnified Party harmless, then Originator shall contribute to the amount paid or payable by such First Tier Indemnified Party as a result of any of such loss, claim, damage or liability to the transactions contemplated hereby;
(H) any Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC;
(I) any failure to vest in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(J) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents maximum extent permitted 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 a Purchase or at any subsequent time;
(K) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);
(L) any avoidance or attempt by Originator or any of its Affiliates to void the Purchase hereunder under statutory provisions or common law or equitable action, and
(M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxeslaw.
Appears in 1 contract
Samples: First Tier Transfer Agreement (Ikon Office Solutions Inc)
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (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 Buyer) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however:
(i) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s 's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts relating (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to or Originator) resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator Originator, to comply with any applicable law, rule or regulation with respect to any Receivable Receiv able 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, 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;Contract;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy, or suspension of payments due to the bankruptcy of of, or a similar insolvency proceeding with respect to, the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) 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 a the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) any Termination 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 Amortization Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ix) any failure of Originator to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from Original Seller, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Originator to give reasonably equivalent value to Original Seller under the Transfer Agreement in consideration of the transfer by Original Seller 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 Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(Jxii) 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 a the Purchase or at any subsequent time;time;
(Kxiii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable; and
(Lxiv) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, and
(M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxes.
Appears in 1 contract
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns and the assigns, successors officers, directors, agents agents, employees and employees of Buyer and its assigns Affiliates (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 Buyer or any such assign) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, Contracts or Related Security, excluding, however:
(i) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States federal government or the jurisdiction in which such Indemnified Party’s 's principal executive office is located, on or measured by the overall net or gross income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests under the Purchase Agreement as a loan or loans by the Purchasers to Buyer secured by, among other things, the Receivables, the Related Security and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional AmountsAgreement or any other Transaction Document. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which thereto that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury or damage suitdamage, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction DocumentAgreement, the transactions contemplated hereby, the use of the proceeds of a Purchaseany Purchase Price payment, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) 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 Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the ReceivablesReceivables and the Collections, and all of Originator's right, title and interest in the Related Security and associated with the CollectionsReceivables, in each case, free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(Jxi) 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 a the Purchase or at any subsequent time;time;
(Kxii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable;
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, ; and
(Mxiv) the failure by Originator or of any Affiliate Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to pay when due any taxes, including sales, excise or personal property taxesbe an Eligible Receivable at the time so included.
Appears in 1 contract
Samples: Receivables Sale Agreement (Puget Sound Energy Inc)
Indemnities by Originator. Without limiting any other rights that Buyer which the Company may have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer the Company and each of its assigns and the assigns, officers, directors, employees and agents and employees of Buyer and its assigns (each an “of the foregoing Persons being individually called a "Purchase and Sale Indemnified Party”) "), forthwith on demand, from and against any and all damages, losses, claims, taxesjudgments, liabilities, costs, expenses liabilities and for all other amounts payablerelated costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively referred to as “called "Purchase and Sale Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, following:
(a) the transfer by Buyer or its assigns Originator of an interest in any Receivable or Related Security to any Person other than the Receivables, excluding, however:Company;
(ib) Indemnified Amounts to the extent that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part breach of the Indemnified Party seeking indemnification, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C)), Originator shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(A) any representation or warranty made by Originator under or on behalf of Originator (or any officers of any such Person) in connection with this Agreement, any other Transaction Document Agreement or any other information or report delivered by such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;Loan Document;
(Bc) the failure by Originator 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 or any failure of Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;regulation;
(Cd) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by Originator and Related Security free and clear of any failure Lien, other than an Lien arising solely as a result of Originator to perform its duties, covenants an act of the Company or other obligations in accordance with Permitted Liens, whether existing at the provisions time of this Agreement the purchase or contribution of such Receivables or at any other Transaction Document;time thereafter;
(D) any products liability, environmental, 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;
(Ee) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligorbankruptcy) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including including, without limitation, a defense based on such Receivable Receivables or the related Contract Contracts not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise goods or services related to any such Receivable or the furnishing of or failure to furnish such merchandise goods or services;services, except to the extent that such dispute, claim, offset or defense results solely from actions or failures to act of the Company or its assigns;
(Ff) any product liability claim arising out of or in connection with goods or services that are the commingling by or on behalf subject of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;Receivable;
(Gg) any investigationlitigation, litigation proceeding or proceeding related investigation against Originator;
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to the proviso below), all interest and penalties thereon or arising from this Agreement or any other Transaction Documentwith respect thereto, and all out-of-pocket costs and expenses, including the transactions contemplated herebyreasonable fees and expenses of counsel in defending against the same, the use which may arise by reason of the proceeds of a Purchasepurchase, the contribution or ownership of the Receivables or any Related Security connected with any such Receivables; and
(i) any failure of Originator, individually or as Servicer, to perform its duties or obligations in accordance with the provisions of this Agreement or any other investigationLoan Document; excluding, litigation however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or proceeding relating willful misconduct on the part of a Purchase and Sale Indemnified Party, (ii) any indemnification which has the effect of recourse for non-payment of the Receivables due to credit reasons to Originator (except as otherwise specifically provided under this Section 9.1) and (iii) any tax based upon or measured by net income or gross receipts. If for any reason the indemnification provided above in which any this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party becomes involved or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then Originator shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party as a result of such loss, claim, damage or liability to the maximum extent permitted under applicable law. Promptly after receipt by a Purchase and Sale Indemnified Party under this Article IX of notice of any claim or the commencement of any action arising out of or as a result of any of the transactions contemplated hereby;
paragraphs (Ha) any Termination Event described in Section 5.1(d)(iiithrough (j) with respect to Buyer or Funding LLC;
(I) any failure to vest in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership ofabove, the ReceivablesPurchase and Sale Indemnified Party shall, if a claim in respect thereof is to be made against the Related Security and Originator under this Article IX, notify the CollectionsOriginator in writing of the claim or the commencement of that action; provided, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(J) however, that the failure to notify the Originator shall not relieve it from any liability which it may have filedunder this Article IX except to the extent it has been materially prejudiced by such failure and, provided, further, that the failure to notify the Originator shall not relieve it from any liability which it may have to a Purchase and Sale Indemnified Party otherwise than under this Article IX. If any such claim or action shall be brought against a Purchase and Sale Indemnified Party, the Originator shall be entitled to participate therein and, to the extent that it wishes, to assume the defense thereof with counsel satisfactory to the Purchase and Sale Indemnified Party. After notice from the Originator to the Purchase and Sale Indemnified Party of its election to assume the defense of such claim or action, the Originator shall not be liable to the Purchase and Sale Indemnified Party under this Article IX for any delay in filing, financing statements legal or other similar instruments expenses subsequently incurred by Purchase and Sale Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. The Originator shall not (i) without the prior written consent of the relevant Purchase and Sale Indemnified Party or documents under Parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the UCC entry of any applicable jurisdiction or other applicable laws judgment with respect to any Receivablepending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the Related Security Purchase and Collections with respect theretoSale Indemnified Party or Parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each Purchase and the proceeds Sale Indemnified Party from all liability arising out of such claim, action, suit or proceeding or (ii) be liable for any thereof, whether at the time of a Purchase or at any subsequent time;
(K) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value settlement of any such Receivable action affected without its written consent (other than which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment of the plaintiff in any portion thereof constituting an Additional Amount);
(L) any avoidance or attempt by Originator or any of its Affiliates to void the Purchase hereunder under statutory provisions or common law or equitable such action, and
(M) the failure by Originator or agrees to indemnify and hold harmless any Affiliate to pay when due indemnified party from and against any taxes, including sales, excise or personal property taxesPurchase and Sale Indemnified Amounts relating thereto.
Appears in 1 contract
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (each 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 Buyer or any such assign) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the ReceivablesReceivable Interest and/or the Contributed Interest, excluding, however:
(ia) Indemnified Amounts to the extent that 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Pool Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests under the Purchase Agreement as a loan or loans by the Purchasers to Buyer secured by, among other things, the Receivable Interest and the Contributed Interest; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Pool Receivables, regardless of whether reimbursement therefore would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which thereto that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator Originator, to comply with any applicable law, rule or regulation with respect to any Pool Receivable or Contract related thereto, or the nonconformity of any Pool 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury or damage suit, 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;Pool Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Pool Receivable other than any portion thereof constituting an Additional Amount (including including, without limitation, a defense based on such Pool 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Pool Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables allocable to the Receivable Interest or the Contributed Interest at any time with other funds;funds;
(Gvii) 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 a Purchaseany Purchase Price payment, the ownership of the Receivables Receivable Interest or the Contributed Interest or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) any inability to litigate any claim against any Obligor in respect of any Pool 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 Termination Event described in Section 5.1(d)(iii7.1(f) with respect to Buyer or Funding LLC(g);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, the Related Security Receivable Interest and the Collections, Contributed Interest free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(Jxi) 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 Receivable Interest and Collections with respect theretothe Contributed Interest, and the proceeds of any thereof, whether at the time of a the Purchase or at any subsequent time;time;
(Kxii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Pool Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Pool Receivable; and
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, and
(M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxes.
Appears in 1 contract
Samples: Receivable Interest Sale Agreement (Ferrellgas Partners Finance Corp)
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (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 Buyer or any such assign) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the ReceivablesReceivables originated by Originator, excluding, however:
(ia) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables originated by Originator that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the jurisdiction in which such Indemnified Party’s 's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; Party; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification andindemnification, in the case of the following clauses (D) through (M), but subject in each case without limiting Originator’s obligations under the following to clauses (Aa), (Bb) or and (C))c) above, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of Originator) under or in connection with any such Person) in Purchase Report, this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, thereto for which Buyer has not received a Purchase Price Credit that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury or damage suitdamage, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the Originator's use of the proceeds of a Purchasethe Purchase from it hereunder, the ownership of the Receivables originated by Originator or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) 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 Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the ReceivablesReceivables originated by such Originator and the associated Collections, and all of Originator's right, title and interest in the Related Security and the Collectionsassociated with such Receivables, in each case, free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(Jxi) 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 ReceivableReceivable originated by Originator, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of a the Purchase from Originator hereunder or at any subsequent time;time;
(Kxii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable;
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase from Originator hereunder under statutory provisions or common law or equitable action, ; and
(Mxiv) the failure of any Receivable reflected as an Eligible Receivable on any Purchase Report prepared by such Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxesbe an Eligible Receivable at the time acquired by Buyer.
Appears in 1 contract
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (each an “Indemnified Party”"INDEMNIFIED PARTY") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable legal and attorneys’ ' fees (which attorneys may be employees of Buyer or any such assign) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”"INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excludingEXCLUDING, howeverHOWEVER:
(ia) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the jurisdiction in which such Indemnified Party’s 's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; providedcharacterization for income tax purposes of the acquisition by the Purchasers of Receivable Interests under the Purchase Agreement as a loan or loans by the Purchasers to Buyer secured by, howeveramong other things, the Receivables, the Related Security and the Collections; PROVIDED, HOWEVER, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification andindemnification, in the case of the following clauses (D) through (M), but subject in each case without limiting Originator’s obligations under the following to clauses (Aa), (Bb) or and (C))c) above, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of Originator) under or in connection with any such Person) in Purchase Report, this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, thereto for which Buyer has not received a Sale Price Credit that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator Originator, to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related theretothereto (including without limitation, privacy laws), 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury or damage suitdamage, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction DocumentDocument with respect to Originator, the transactions contemplated hereby, the Originator's use of the proceeds of a Purchasethe Purchase from it hereunder, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) 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 Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(e);
(I) any failure to vest in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(J) 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 a Purchase or at any subsequent time;
(K) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);
(L) any avoidance or attempt by Originator or any of its Affiliates to void the Purchase hereunder under statutory provisions or common law or equitable action, and
(M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxes.
Appears in 1 contract
Samples: Canadian Receivables Sale Agreement (Wolverine Tube Inc)
Indemnities by Originator. Without limiting any other rights that Buyer which the Company may have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer the Company and each of its assigns and the assigns, officers, directors, employees and agents and employees of Buyer and its assigns (each an “Indemnified Party”) of the foregoing Persons being individually called a "PURCHASE AND SALE INDEMNIFIED PARTY"), forthwith on demand, from and against any and all damages, losses, claims, taxesjudgments, liabilities, costs, expenses liabilities and for all other amounts payablerelated costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”called "PURCHASE AND SALE INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, following:
(a) the transfer by Buyer or its assigns Originator of an interest in any Receivable or Related Right to any Person other than the Receivables, excluding, however:Company;
(ib) Indemnified Amounts to the extent that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part breach of the Indemnified Party seeking indemnification, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C)), Originator shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(A) any representation or warranty made by Originator under or on behalf of Originator (in connection with this Agreement or any officers of any such Person) in this Agreement, any other Transaction Document Document, or any other information or report delivered by such Person Originator pursuant hereto or thereto, thereto which shall have been false or incorrect in any material respect when made or deemed made;made;
(Bc) the failure by Originator 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 or any failure of Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(C) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(D) any products liability, environmental, 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;
(E) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceeding), 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;
(F) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;
(G) 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 a Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(H) any Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLCregulation;
(Id) any the failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal the Company an ownership interest in the Receivables generated by Originator and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, Rights free and clear of any Adverse Claim, other than an Adverse Claim (except arising solely as created by a result of an act of the Transaction Documents);Company, whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(Je) the failure of Originator to have filedfile with respect to itself, or any delay by Originator 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 Receivables or purported Receivables generated by Originator or Related Security and Collections with respect thereto, and the proceeds of any thereofRights, whether at the time of a Purchase any purchase or contribution or at any subsequent time;time;
(Kf) any action dispute, claim, offset or omission defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by Originator (including, without limitation, a defense based on such Receivables or the related Contracts not being a legal, valid and binding obligation of such Obligor enforceable against it in contravention accordance with its terms), or any other claim resulting from the goods or services related to any such Receivable or the furnishing of or failure to furnish such goods or services;
(g) any product liability claim arising out of or in connection with goods or services that are the subject of any Receivable;
(h) any litigation, proceeding or investigation against Originator;
(i) any tax or governmental fee or charge (other than any tax excluded pursuant to the proviso below), 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 purchase, contribution or ownership of the Receivables or any Related Right connected with any such Receivables; and
(j) any failure of Originator, individually or as Servicer, to perform its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document Document; EXCLUDING, HOWEVER, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of a Purchase and Sale Indemnified Party, (ii) any indemnification which reduces has the effect of recourse for non-payment of the Receivables due to credit reasons to Originator (except as otherwise specifically provided under this SECTION 9.1) and (iii) any tax based upon or impairs measured by net income or gross receipts. If for any reason the rights indemnification provided above in this SECTION 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then Originator shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party as a result of Buyer such loss, claim, damage or liability to the maximum extent permitted under applicable law. Promptly after receipt by a Purchase and Sale Indemnified Party under this Article IX of notice of any claim or the commencement of any action arising out of or as a result of any of paragraphs (a) through (j) above, the Purchase and Sale Indemnified Party shall, if a claim in respect thereof is to be made against the Originator under this Article IX, notify the Originator in writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that the failure to notify the Originator shall not relieve it from any liability which it may have under this Article IX except to the extent it has been materially prejudiced by such failure and, PROVIDED, FURTHER, that the failure to notify the Originator shall not relieve it from any liability which it may have to a Purchase and Sale Indemnified Party otherwise than under this Article IX. If any such claim or action shall be brought against a Purchase and Sale Indemnified Party, the Originator shall be entitled to participate therein and, to the extent that it wishes, to assume the defense thereof with counsel satisfactory to the Purchase and Sale Indemnified Party. After notice from the Originator to the Purchase and Sale Indemnified Party of its election to assume the defense of such claim or action, the Originator shall not be liable to the Purchase and Sale Indemnified Party under this Article IX for any legal or other expenses subsequently incurred by Purchase and Sale Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. The Originator shall not (i) without the prior written consent of the relevant Purchase and Sale Indemnified Party or Parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any Receivable pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the value Purchase and Sale Indemnified Party or Parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each Purchase and Sale Indemnified Party from all liability arising out of such claim, action, suit or proceeding or (ii) be liable for any settlement of any such Receivable action affected without its written consent (other than which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment of the plaintiff in any portion thereof constituting an Additional Amount);
(L) any avoidance or attempt by Originator or any of its Affiliates to void the Purchase hereunder under statutory provisions or common law or equitable such action, and
(M) the failure by Originator or agrees to indemnify and hold harmless any Affiliate to pay when due indemnified party from and against any taxes, including sales, excise or personal property taxesPurchase and Sale Indemnified Amounts relating thereto.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Warren S D Co /Pa/)
Indemnities by Originator. Without limiting any other rights that Buyer which the Company may have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer the Company and each of its assigns and the assigns, officers, directors, employees and agents and employees of Buyer and its assigns (each an “Indemnified Party”) of the foregoing Persons being individually called a "PCA INDEMNIFIED PARTY"), forthwith on demand, from and against any and all damages, losses, claims, taxesjudgments, liabilities, costs, expenses liabilities and for all other amounts payablerelated costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”called "PURCHASE AND CONTRIBUTION INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, following:
(a) the transfer by Buyer or its assigns Originator of an interest in any Pool Receivable or Related Right to any Person other than the Receivables, excluding, however:Company;
(ib) Indemnified Amounts to the extent that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part breach of the Indemnified Party seeking indemnification, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C)), Originator shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(A) any representation or warranty made by Originator under or on behalf of Originator (in connection with this Agreement or any officers of any such Person) in this Agreement, any other Transaction Document Document, or any other information or report delivered by such Person Originator pursuant hereto or thereto, thereto which shall have been false or incorrect in any material respect when made or deemed made;made;
(Bc) the failure by Originator to comply with any applicable law, rule or regulation with respect to any Pool Receivable or Contract the related theretoContract, or the nonconformity of any Pool Receivable or the related 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;
(C) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(D) any products liability, environmental, 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;
(E) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceeding), 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;
(F) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;
(G) 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 a Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(H) any Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLCregulation;
(Id) any the failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal the Company an ownership interest in the Pool Receivables generated by Originator and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, Rights free and clear of any Adverse Claim, other than an Adverse Claim (except arising solely as created by a result of an act of the Transaction Documents);Company, whether existing at the time of the purchase or contribution of such Pool Receivables or at any time thereafter;
(Je) the failure of Originator to have filedfile with respect to itself, or any delay by Originator 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 Pool Receivables or purported Pool Receivables generated by Originator or Related Security and Collections with respect thereto, and the proceeds of any thereofRights, whether at the time of a Purchase any purchase or contribution or at any subsequent time;time;
(Kf) any action dispute, claim, offset or omission defense (other than discharge in bankruptcy) of the Obligor to the payment of any Pool Receivable or purported Pool Receivable generated by Originator (including, without limitation, a defense based on such Pool Receivables or the related Contracts not being a legal, valid and binding obligation of such Obligor enforceable against it in contravention accordance with its terms), or any other claim resulting from the goods or services related to any such Pool Receivable or the furnishing of or failure to furnish such goods or services;
(g) any product liability claim arising out of or in connection with goods or services that are the subject of any Pool Receivable;
(h) any litigation, proceeding or investigation against Originator;
(i) any tax or governmental fee or charge (other than any tax excluded pursuant to the proviso below), 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 purchase, contribution or ownership of the Pool Receivables or any Related Right connected with any such Pool Receivables; and
(j) any failure of Originator, individually or as Servicer, to perform its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document which reduces Document; EXCLUDING, HOWEVER, (i) Purchase and Contribution Indemnified Amounts to the extent resulting from gross negligence or impairs willful misconduct on the rights part of Buyer with respect to any Receivable or the value of any such Receivable a PCA Indemnified Party, (other than any portion thereof constituting an Additional Amount);
(Lii) any avoidance indemnification which has the effect of recourse for non-payment of the Pool Receivables due to credit reasons to Originator (except as otherwise specifically provided under this SECTION 9.1) and (iii) any tax based upon or attempt measured by net income or gross receipts. If for any reason the indemnification provided above in this SECTION 9.1 is unavailable to a PCA Indemnified Party or is insufficient to hold such PCA Indemnified Party harmless, then Originator shall contribute to the amount paid or any payable by such PCA Indemnified Party as a result of its Affiliates such loss, claim, damage or liability to void the Purchase hereunder maximum extent permitted under statutory provisions or common law or equitable action, and
(M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxesapplicable law.
Appears in 1 contract
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees agrees, severally and not jointly, to indemnify (and pay upon demand to) Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (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 Buyer or any such assign) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the ReceivablesReceivables of Originator, excluding, however:
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;
insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or (iii) taxes imposed by the jurisdiction in which such Indemnified Party’s 's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests under the Purchase Agreement as a loan or loans by the Purchasers to Buyer secured by, among other things, the Receivables, the Related Security and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which thereto that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury or damage suitdamage, suit or other similar claim arising out of or in connection -23- 27 with merchandise, insurance or services that are the subject of any Contract or any Receivable;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount of Originator (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) 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 a Purchaseany Purchase Price Payment of Originator, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) any inability to litigate any claim against any Obligor in respect of any Receivable of Originator 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 Termination Event described in Section 5.1(d)(iii5.1(d) with respect to Buyer or Funding LLCOriginator;
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the ReceivablesReceivables and the Collections of Originator, and all of Originator's right, title and interest in the Related Security and associated with the CollectionsReceivables of Originator, in each case, free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(Jxi) 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 ReceivableReceivable of Originator, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of a the Purchase or at any subsequent time;time;
(Kxii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which that reduces or impairs the rights of Buyer with respect to any Receivable of Originator or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable;
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, ; and
(Mxiv) the failure by of any Receivable of Originator or any Affiliate included in the calculation of the Net Receivables Balance as an Eligible Receivable to pay when due any taxes, including sales, excise or personal property taxesbe an Eligible Receivable at the time so included.
Appears in 1 contract
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable lawlaw and subject to the last sentence of this Section 6.1, Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, penalties, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of Buyer or any such assign) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them directly or indirectly arising out of or as a result of the execution, delivery, performance, non-performance, enforcement, non-enforcement of, or other condition or circumstance whatsoever with respect to, this Agreement or any of the Transaction Documents (including without limitation (i) any fees and expenses of attorneys and other advisers and (ii) any Taxes (other than Excluded Taxes): (I) which may be asserted or imposed in respect of the Receivables or the receipt of Collections or other proceeds with respect to the Receivables or any Related Security, (II) which may arise by reason of the Receivables or ownership or the sale or other disposition thereof, or any other interest in the Receivables or in any Related Security or (III) which may arise otherwise by reason of the execution, delivery, performance, non-performance, enforcement or non-enforcement of, or other condition or circumstance whatsoever with respect to the Receivables, the Related Security, this Agreement or any Transaction Document; except that, notwithstanding the foregoing parenthetical exclusion relating to Excluded Taxes, in the event that the Obligations of Originator hereunder are for any reason determined not to be treated as indebtedness of Originator for income or franchise tax purposes, Originator shall indemnify each Indemnified Party in respect of such additional amounts in respect of such Taxes as may be described in clauses (I), (II) or (III), with such amounts being calculated on an after-tax basis, as are imposed on or incurred by an Indemnified Party to the extent that such Taxes would not have been imposed or incurred (or would not have been imposed or incurred at the same time) had the obligations of the Originator hereunder or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, been treated as indebtedness for such income or franchise tax purposes, as applicable, excluding, however:
(i) however Indemnified Amounts to the extent that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification andindemnification, in the case of the following clauses (D) through (M), but subject in each case without limiting Originator’s obligations under the following to clauses (Aa), (Bb) or and (C))c) above, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of Originator) under or in connection with any such Person) in Purchase Report, this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, thereto for which Buyer has not received a Purchase Price Credit that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury or damage suitdamage, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) 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 a Purchasethe Purchase hereunder, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) 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 Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the ReceivablesReceivables and the Collections, and all of Originator’s right, title and interest in the Related Security and associated with the CollectionsReceivables, in each case, free and clear of any Adverse Claim (except other than as created by the Transaction Documents);hereunder);
(Jxi) 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 a the Purchase or at any subsequent time;time;
(Kxii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable;
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, ;
(xiv) the failure of any Receivable reflected as an Eligible Receivable on any Purchase Report to be an Eligible Receivable at the time acquired by Buyer; and
(Mxv) any breach by the Originator of any confidentiality clause in any Contract governing a Receivable except for a Receivable that, prior to the assertion of such breach, had already become a Defaulted Receivable. Notwithstanding the foregoing, (1) the failure by foregoing indemnification contained in this Section 6.1 is not intended to, and shall not, constitute a guarantee of the collectibility or payment of the Receivables conveyed hereunder; and (2) nothing in this Section 6.1 shall require the Originator to indemnify any Indemnified Party for Receivables which are not collected, not paid or any Affiliate otherwise uncollectible on account of the insolvency, bankruptcy, creditworthiness or financial inability to pay when due of the applicable Obligor. The agreements in this subsection shall survive the collection of all Receivables, the termination of this Agreement and the payment of all amounts payable hereunder. If any taxesIndemnified 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 the Originator under Section 6.1(iv), such Indemnified Party shall give prompt and timely notice of such attempt to the Originator, and the Originator 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 each 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 salesthe effect of such tax, excise deduction or personal property taxesrefund on the amount of tax measured by net income or profits which is or was payable by the Indemnified Party. If for any reason the indemnification provided above in this Section 6.1 is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then the Originator shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable law.
Appears in 1 contract
Samples: Receivables Sale Agreement (International Paper Co /New/)
Indemnities by Originator. Without limiting any other rights that Buyer may May have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (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 Buyer) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however:
(ia) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the jurisdiction in which such Indemnified Party’s 's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts (including losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by Originator or on behalf of Originator Custodian (or any officers of any such PersonOriginator, WorldMark or Custodian) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator , WorldMark or Custodian (with respect to its duties under Article XV of the Purchase Agreement or any other provision of the Purchase Agreement) to comply with any applicable law, rule 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 Rule or regulation or any failure of Originator Originator, WorldMark or Custodian (with respect to its duties under Article XV of the Purchase Agreement or any other provision of the Purchase Agreement) to keep or perform any of its their respective obligations, express or implied, with respect to any Contract;Contract;
(Ciii) any failure of Originator or Custodian to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any lawsuit or legal claim arising out of or in connection with the Resorts and Units, any defect in WorldMark's ownership of title to, or leasehold rights in, the real property used in its business, any Obligor's right to use the Resorts and Units, or any rights or services that are the subject of any Contract;
(v) any products liability, environmental, personal injury liability or damage suit, or other similar claim arising out of or in connection with merchandise, insurance rights or services that are the subject of any Contract or any Receivable;Contract;
(Evi) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise service or services rights related to such Receivable or the furnishing or failure to provide for such rights or furnish such merchandise or services;services;
(Fvii) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gviii) 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 a Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator Originator, WorldMark or Custodian in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hix) any Termination 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;
(x) any Amortization Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ixi) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, the Related Security (and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(Jxii) 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 a any Purchase or at any subsequent time;time;
(Kxiii) any action or omission by Originator in contravention of this Agreement Originator, WorldMark or any other Transaction Document Custodian which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable;
(Lxiv) any avoidance or attempt by Originator or any of its Affiliates Person to void the any Purchase hereunder under statutory provisions or common law or equitable action, ; and
(Mxv) the failure Year 2000 Problem with respect to the Originator. Any Indemnified Amounts incurred by actions of the Custodian shall be payable by the Custodian to the Buyer no later than the 30th day after a demand for payment of the Buyer is delivered to the Custodian. Any such Indemnified Amounts not paid by such date shall be immediately payable by the Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxesthe Buyer.
Appears in 1 contract
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (each 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 Buyer) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, howeverhowever in all of the foregoing instances:
(i) Indemnified Amounts to the extent that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor;
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; provided, however, that nothing contained in this sentence shall limit characterization for income tax purposes of the liability acquisition by the Purchasers of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator Purchaser Interests under the terms of this AgreementPurchase Agreement as a loan or loans by the Purchasers to Buyer secured by the Receivables, the Related Security, the Collection Accounts and the Collections; or
(iv) any claim by any Indemnified Amounts relating to and affecting only Additional Amounts. Party against another Indemnified Party Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) 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 a the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) 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 Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(Jxi) 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 a the Purchase or at any subsequent time;time;
(Kxii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer (or any of its assigns) with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable; and
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, and
(M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxes.
Appears in 1 contract
Indemnities by Originator. Without limiting any other rights that Buyer or its assigns may have hereunder or under applicable law, Originator hereby agrees to indemnify (and pay promptly after demand to) Buyer and its assigns and the their respective assigns, successors, officers, directors, agents agents, employees and employees of Buyer and its assigns Affiliates (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, out-of-pocket costs, expenses and for all other amounts payable, including reasonable attorneys’ fees 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, Contracts or Related Security, excluding, howeverhowever in all of the foregoing instances:
(ia) 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, it being the intention of Originator to indemnify indemnification or material breach by such Indemnified Party against of the consequences express terms of its own negligence;the Transaction Documents;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; characterization for income tax purposes of the acquisition by the Administrative Agent, for the benefit of the Purchasers and the L/C Issuers, of interests in the Receivables as a loan or loans made by the Purchasers to the Buyer secured by the Receivables, the Related Security, the Collections and the Collection Accounts; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns the Indemnified Parties to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional AmountsAgreement or any other Transaction Document. Without limiting the generality of the foregoing indemnification andindemnification, but subject to the exclusions set forth in the case of the following clauses (Da) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (Bc) or (C))above, Originator shall indemnify the each Indemnified Parties Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which thereto that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated herebyhereby or thereby, the use of the proceeds of any Purchase or any draw under a PurchaseLetter of Credit, the ownership of the Receivables or any interest therein or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby or by any other Transaction Document;
(Hviii) 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 Termination Event or Potential Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, any Receivable and the Related Security Security, Collection Accounts and the CollectionsCollections with respect thereto, in each case, free and clear of any Adverse Claim (except other than as created by the Transaction Documents);Documents); or any failure of Buyer to give reasonably equivalent value to Originator hereunder in consideration of the transfer by Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(Jxi) 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 a any Purchase or at any subsequent time;time;
(Kxii) any action or omission (other than as expressly contemplated by Originator in contravention of this Agreement or any other Principal Transaction Document Document) by Originator which reduces or impairs the rights of Buyer (or any of its assigns) with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable;
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the any Purchase hereunder under statutory provisions or common law or equitable action, and;
(Mxiv) 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
(xv) any Letter of Credit issued in connection herewith or the use of the proceeds thereof by Originator the applicable beneficiary or any Affiliate to pay when due any taxesaffiliate, including salesagent, excise employee or personal property taxesassignee thereof. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT, IN WHOLE OR IN PART, CAUSED BY ANY NEGLIGENT ACT OR OMISSION OF ANY L/C ISSUER, ANY PURCHASER, THE ADMINISTRATIVE AGENT, ANY MANAGING AGENT OR THEIR RESPECTIVE AFFILIATES.
Appears in 1 contract
Samples: Receivables Sale Agreement (Marathon Petroleum Corp)
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer and its assigns (including, without limitation, JWPR Corporation, the Purchasers and the Agent), officers, directors, agents and employees of Buyer and its assigns (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, taxes and liabilities, costs, reasonable costs and expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of Buyer) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however:
(i) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of any other provision of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury liability 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;Contract;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) 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 a the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) any Termination 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 Amortization Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);Documents);
(J) 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 a Purchase or at any subsequent time;
(Kxi) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable; and
(Lxii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, and
(M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxes.
Appears in 1 contract
Samples: Receivables Sale Agreement (Johnsondiversey Holdings Inc)
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (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 pursuant to an invoice in reasonable detail 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however:
(ia) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor;
(iiic) taxes imposed by the any jurisdiction in which such Indemnified Party’s Party is organized, its principal executive office is locatedlocated or it does business, on or measured by the overall net income of such Indemnified Party Party, other than any taxes on or measured by net income as a result of such Indemnified Party's having executed, delivered or performed its obligations, or received payment under or enforced, this Agreement or any of the other Transaction Documents; or
(d) taxes imposed on any Committed Purchaser (and any Eligible Assignee thereof) that is not incorporated under the laws of the United States of America, any state thereof or the District of Columbia, if and to the extent that such Committed Purchaser or Eligible Assignee shall not have furnished to Originator, at the computation time or times prescribed by applicable law, such properly completed and executed documentation reasonably requested by Originator as will permit payments under this Agreement to be made without deduction or withholding, including, without limitation, United States Internal Revenue Service Form W-9, W-8BEN or W-8ECI, as applicable, certifying that such Committed Purchaser or Eligible Assignee is entitled to receive payments under this Agreement without deduction or withholding of such taxes is consistent with the Intended Characterization; any United States federal income tax; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification andindemnification, in the case of the following clauses (D) through (M), but subject in each case without limiting Originator’s obligations under the following to clauses (Aa), (Bb) or and (C))c) above, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of Originator) under or in connection with any such Person) in Purchase Report, this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, thereto for which Buyer has not received a Purchase Price Credit that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury or damage suitdamage, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) any failure of a Collection Bank to comply with the terms of the applicable Collection Account Agreement;
(viii) 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 a Purchasethe Purchase hereunder, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hix) any Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLCother than a Voluntary Termination;
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the ReceivablesReceivables and the Collections, and all of Originator's right, title and interest in the Related Security and associated with the CollectionsReceivables, in each case, free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(Jxi) the failure by the Originator 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 a the Purchase or at any subsequent time;time;
(Kxii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable; and
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, and
(M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxes.
Appears in 1 contract
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns and the officers, directors, agents and employees of Buyer and its assigns (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 Buyer or any such assign) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the ReceivablesReceivables (including, without limitation, any loss resulting from Originator's failure to pay any sales tax relating to any Receivable), excluding, however:
(ia) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the jurisdiction in which such Indemnified Party’s 's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; characterization for income tax purposes of the acquisition (either directly or indirectly) by Blue Ridge of Receivable Interests under the Credit Agreement as a loan or loans by Blue Ridge to Buyer secured by, among other things, the Receivables, the Related Security and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification andindemnification, in the case of the following clauses (D) through (M), but subject in each case without limiting Originator’s obligations under the following to clauses (Aa), (Bb) or and (C))c) above, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of Originator) under or in connection with any such Person) in Purchase Report, this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, thereto for which Buyer has not received a Purchase Price Credit that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury or damage suitdamage, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale delivery of the merchandise or services electricity related to such Receivable or the furnishing or failure to furnish such merchandise or services;electricity;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) 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 a Purchasethe Purchase hereunder, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(H) any Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLChereby;
(Iviii) 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) the exercise by the PUC of its sequestration powers under the Competition Act in respect of Collections;
(x) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the ReceivablesReceivables and the Collections, and all of Originator's right, title and interest in the Related Security and associated with the CollectionsReceivables, in each case, free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(Jxi) 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 a the Purchase or at any subsequent time;time;
(Kxii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable;
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, ; and
(Mxiv) the failure of any Receivable reflected as an Eligible Receivable on any Purchase Report to be an Eligible Receivable at the time acquired by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxesBuyer.
Appears in 1 contract
Samples: Receivables Sale Agreement (PPL Electric Utilities Corp)
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (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 Buyer or any such assign) 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 Agreement, or the use of the proceeds of any purchase hereunder, or the acquisition, funding or ownership, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, or any Receivable or any Contract or any Related Security, excluding, however:
(i) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s 's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests under the Purchase Agreement as a loan or loans by the Purchasers to Buyer secured by, among other things, the Receivables, the Related Security and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator any Originating Entity (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person any Originating Entity pursuant hereto or thereto, which thereto that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator any Originating Entity 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 any Originating Entity to keep or perform any of its obligations, express or implied, with respect to any Contract;Contract;
(Ciii) any failure of Originator any Originating Entity to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury or damage suitdamage, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) 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 a Purchaseany Purchase Price Payment, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator any Originating Entity in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) 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 Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the ReceivablesReceivables and the Collections, and all of Originator's right, title and interest in the Related Security and associated with the CollectionsReceivables, in each case, free and clear of any Adverse Claim (except as created Claim, including any such failure occurring by reason of any failure by Originator to acquire and maintain the Transaction Documents);same from the Subsidiary Originator;
(Jxi) 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 a the Purchase or at any subsequent time;time;
(Kxii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document Originating Entity which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable;
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, ; and
(Mxiv) the failure by Originator or of any Affiliate Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to pay when due any taxes, including sales, excise or personal property taxesbe an Eligible Receivable at the time so included.
Appears in 1 contract
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (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 Buyer or any such assign) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however:
(ia) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the United States, the Indemnified Party=s jurisdiction of organization (or, in the case of an individual, primary residence) or any other jurisdiction in which such Indemnified Party’s principal executive office is locatedParty has established a taxable nexus other than in connection with the transactions contemplated hereby and by this Agreement, in any case on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by Performance Guarantor or on behalf of Originator (or any officers of any such PersonPerformance Guarantor or Originator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which thereto that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator Originator, to comply with any applicable law, rule or regulation with respect to any Receivable or Contract contract related thereto, or the nonconformity of any Receivable or Contract 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;such contract;
(Ciii) any failure of Performance Guarantor or Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document to which they are parties;
(Div) any products liability, environmental, personal injury or damage suitdamage, suit or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract contract related to any Receivable or any Receivable;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including including, without limitation, a defense based on such Receivable or the related Contract contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) 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 a Purchaseany Purchase Price payment, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) 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 Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, the Related Security Receivables and the Collections, and all of Originator's right, title and interest in all Related Security associated with the Receivables (whether or not such Related Security is covered by Article 9 of the UCC) and any Shared Security, in each case, free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(Jxi) 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 (whether or not such Related Security is covered by Article 9 of the UCC), any Shared Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of a the Purchase or at any subsequent time;time;
(Kxii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable;
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, ; and
(Mxiv) the failure by Originator or of any Affiliate Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to pay when due any taxes, including sales, excise or personal property taxesbe an Eligible Receivable at the time so included.
Appears in 1 contract
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, the Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (each 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 Buyer or any such assign) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the ReceivablesReceivables originated by the Originator, excluding, however, in all of the foregoing cases:
(ia) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the United States, the Indemnified Party’s jurisdiction of organization (or, in the case of an individual, primary residence) or any other jurisdiction in which such Indemnified Party’s principal executive office is located, Party has established a taxable nexus other than in connection with the transactions contemplated hereby and by the Purchase Agreement on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; Characterization; provided, however, that nothing contained in this sentence shall limit the liability of the Originator or limit the recourse of Buyer or its assigns to the Originator for amounts otherwise specifically provided to be paid by the Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification andindemnification, but subject to the exclusions in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (Aa), (Bb) or and (C))c) above, the Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to the Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of the Originator (or any officers of any such Personits officers) under or in connection with this Agreement, any other Transaction Document to which the Originator is a party or any any. other information or report required to be delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable originated by it, or any Contract related thereto, or the nonconformity of any such Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of the Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;such Contract;
(Ciii) any failure of the Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document to which it is a party;
(Div) any products liability, environmentalenvironmental liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services goods that are the subject of any Contract or any Receivable;Receivable originated by the Originator;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount originated by the Originator (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise goods or services related to such Receivable or the furnishing or failure to furnish such merchandise goods or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of such Receivables at any time with other funds;funds;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction DocumentDocument to which the Originator is a party, the transactions contemplated hereby, the use by the Originator of the proceeds of a Purchase, the ownership of the Receivables any purchase from it hereunder or any other investigation, litigation or proceeding relating to the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(H) any Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLChereby;
(Iviii) any inability to litigate any claim against any Obligor in respect of any such 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) (A) failure of the Originator generally to pay its debts as such debts become due or admission by the Originator in writing of its inability to pay its debts generally or any making by the Originator of a general assignment for the benefit of creditors; or (B) the institution of any proceeding by or against the Originator seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property, or (C) the taking by the Originator of any corporate action to authorize any of the actions set forth in clauses (A) or (B) above in this clause (ix);
(x) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, an exclusive perfected ownership interest in the Receivables, Receivables originated by the Originator and the associated Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);Documents);
(Jxi) 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 such Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of a Purchase sale to Buyer or at any subsequent time;time; and
(Kxii) any action or omission by the Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);
(L) any avoidance or attempt by Originator or any of its Affiliates to void the Purchase hereunder under statutory provisions or common law or equitable action, and
(M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxesReceivable.
Appears in 1 contract
Indemnities by Originator. Without limiting any other rights ------------------------- that Buyer any such Person may have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer the Company and each of its successors, transferees and assigns and the all officers, directors, shareholders, controlling persons, employees and agents and employees of Buyer and its assigns any of the foregoing (each an “of the foregoing Persons being individually called a "First Tier Indemnified Party”) "), forthwith on ---------------------------- demand, from and against any and all damages, losses, claims, taxesjudgments, liabilities, costs, expenses liabilities and for all other amounts payablerelated costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of collectively, the foregoing being collectively referred to as “"First Tier Indemnified Amounts”") awarded ------------------------------ against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, following:
(a) the transfer by Buyer or its assigns Originator of an interest in any Pool Receivable or Related Property to any Person other than the Receivables, excluding, however:Company;
(ib) Indemnified Amounts to the extent that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part breach of the Indemnified Party seeking indemnification, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C)), Originator shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(A) any representation or warranty made by or on behalf of Originator (or any officers of any such Person) in pursuant to this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, thereto which shall have been false or incorrect in any respect when made or deemed made;made;
(Bc) the failure by Originator to comply with any applicable law, rule or regulation with respect to any Pool Receivable or Contract the related theretoContract, or the nonconformity of any Pool Receivable or the related Contract included therein with any such applicable law, rule or regulation regulation;
(d) the failure to vest and maintain vested in the Company an ownership interest in the Pool Receivables generated by Originator and Related Property free and clear of any Lien, other than a Lien arising solely as a result of an act of the Company, whether existing at the time of the transfer or contribution of such Pool Receivables or at any time thereafter;
(e) any claim resulting from the sale of the merchandise or services related to any Pool Receivable or the furnishing or failure to furnish such merchandise or services; or any failure products liability claim arising out of Originator or in connection with merchandise or services that are the subject of any Pool Receivable;
(f) any investigation, litigation or proceeding related to keep this Agreement or perform the use of proceeds of transfers hereunder or the ownership of, or in respect of, any of its obligationsPool Receivables, express Related Property or impliedContract;
(g) any tax or governmental fee or charge (other than any tax band upon or measured by net income), all interest and penalties thereon or with respect to 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 transfer, contribution or ownership of the Pool Receivables or any Contract;Related Property connected with any such Pool Receivables;
(Ch) any failure of Originator to perform its duties, covenants duties or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Agreement; and
(D) any products liability, environmental, 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;
(Ei) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligorbankruptcy) of the Obligor to the payment of any Pool Receivable other than any portion thereof constituting an Additional Amount (including including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms); excluding, however, (i) First Tier Indemnified Amounts to the extent resulting --------- ------- from gross negligence or based on such Obligor being immune from claims willful misconduct on the grounds on sovereign immunity or otherwise immune or not subject part of a First Tier Indemnified Party and (ii) any indemnification which has the effect of recourse to legal action, suit or proceeding), or any other claim resulting from the sale Originator for non-payment of the merchandise or services related Pool Receivables due to such Receivable or credit reasons (except as otherwise specifically provided in this Agreement). If for any reason the furnishing or failure indemnification provided above in this Section ------- 7.1 is unavailable to furnish such merchandise or services;
(F) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;
(G) 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 a Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any First Tier Indemnified Party becomes involved or is insufficient to hold --- such First Tier Indemnified Party harmless, then Originator shall contribute to the amount paid or payable by such First Tier Indemnified Party as a result of any of such loss, claim, damage or liability to the transactions contemplated hereby;
(H) any Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC;
(I) any failure to vest in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(J) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents maximum extent permitted 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 a Purchase or at any subsequent time;
(K) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);
(L) any avoidance or attempt by Originator or any of its Affiliates to void the Purchase hereunder under statutory provisions or common law or equitable action, and
(M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxeslaw.
Appears in 1 contract
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (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 Buyer or any such assign) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however:
(i) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s 's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests under the Purchase Agreement as a loan or loans by the Purchasers to Buyer secured by, among other things, the Receivables, the Related Security and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which thereto that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury or damage suitdamage, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) 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 a Purchaseany Purchase Price Payment, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) 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 sover- eignty or otherwise from any legal action, suit or proceeding;
(ix) any Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1 (d);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the ReceivablesReceivables and the Collections, and all of Originator's right, title and interest in the Related Security and associated with the CollectionsReceivables, in each case, free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(Jxi) 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 a the Purchase or at any subsequent time;time;
(Kxii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable;
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, ; and
(Mxiv) the failure by Originator or of any Affiliate Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to pay when due any taxes, including sales, excise or personal property taxesbe an Eligible Receivable at the time so included.
Appears in 1 contract
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (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 Buyer) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Qualified Receivables, excluding, however:
(i) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(ii) Indemnified Amounts to the extent the same constitutes recourse for or otherwise includes losses in respect of Qualified Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse insolvency, bankruptcy, lack of creditworthiness, or other failure (without cause or justification), or inability to Originator for uncollectible Receivables;perform its obligations on the part of the related Obligor; or
(iii) (A) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is locatedjurisdiction of organization, operation or management and control, on or measured by the overall net income or revenues of such Indemnified Party to the extent that the amount of or computation of such taxes is consistent with the Intended Characterization; Characterization, (B) any withholding tax imposed on the payments to any Indemnified Party to the extent such taxes that the amount of or computation of such taxes is consistent with the Intended Characterization, and (C) any tax that would not have been imposed but for the delay or failure by such Indemnified Party (following a written request by the Originator, except that this Agreement shall constitute an initial written request by the Originator) in providing to the Seller U.S. IRS Form X-0XXX, X-0XXX, X-0XXX or W-8EXP (whichever is applicable) that is required to be provided by such Indemnified Party to avoid or reduce such taxes; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for in respect of any amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification andindemnification, but subject to the limitations in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (Ai), (Bii) or and (C))iii) above, Originator shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator Originator, to comply with any applicable law, rule or regulation with respect to any Qualified Receivable or Contract related thereto, or the nonconformity of any Qualified 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury liability 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;Qualified Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Qualified Receivable other than any portion thereof constituting an Additional Amount (including including, without limitation, a defense based on such Qualified 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Qualified Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Qualified Receivables at any time with other funds;funds;
(Gvii) 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 a the Purchase, the ownership of the Qualified Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) any inability to litigate any claim against any Obligor in respect of any Qualified 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 Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.01(e);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Qualified Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(Jxi) 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 Qualified Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of a the Purchase or at any subsequent time;time;
(Kxii) any action or improperly taken, any omission by Originator in contravention of this Agreement any action required to be taken, or any other Transaction Document action elected to be taken by Originator which reduces or impairs the rights of the Buyer (or any of its assigns) with respect to any Qualified Receivable or the value of any such Receivable Qualified Receivable;
(xiii) any attempt by any Person (other than any portion thereof constituting an Additional Amount);
(L) any avoidance or attempt by Originator the Arranger, the Agent or any of its Affiliates Purchaser) to void the Purchase hereunder under statutory provisions or common law or equitable action, ; and
(Mxiv) the failure by of the Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxesprovide the original Receivable File for each Qualified Receivable to the Servicer.
Appears in 1 contract
Samples: Receivables Sale Agreement (Gehl Co)
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer and its assigns (including, without limitation, the Purchasers and the Agent), officers, directors, agents and employees of Buyer and its assigns (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, taxes and liabilities, costs, reasonable costs and expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of Buyer) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however:
(i) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of any other provision of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;made;
(Biv) the failure by Originator 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;Contract;
(Cv) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Dvi) any products liability, environmental, personal injury liability 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;Contract;
(Evii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fviii) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gix) 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 a the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hx) any Termination 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;
(xi) any Amortization Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ixii) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);Documents);
(J) 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 a Purchase or at any subsequent time;
(Kxiii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable; and
(Lxiv) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, and
(M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxes.
Appears in 1 contract
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (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 Buyer) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however:
(i) Indemnified Amounts to the extent that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification, provided, that it being is the intention of Originator to indemnify such Indemnified Party against the consequences of its their own negligence;negligence;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s 's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction 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;made;
(Bii) the failure by 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) 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 a Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) any Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC6.1(d);
(Iix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);Documents);
(Jx) 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 a Purchase or at any subsequent time;time;
(Kxi) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable; and
(Lxii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, and
(M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxes.
Appears in 1 contract
Indemnities by Originator. Without limiting any other rights ------------------------- that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (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 Buyer or any such assign) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however:
(i) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s 's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests under the Purchase Agreement as a loan or loans by the Purchasers to Buyer secured by, among other things, the Receivables, the Related Security and the Collections; provided, however, that nothing contained in this sentence shall limit the -------- ------- liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification andindemnification, subject to the limitations set forth in the case of the following clauses (Di) through and (M), in each case without limiting Originator’s obligations under the following clauses (A), (Biii) or (C))above, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which thereto that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury or damage suitdamage, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) 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 a Purchaseany Purchase Price payment, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) 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 Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC;5.1(d); ---------------
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the ReceivablesReceivables and the Collections, and all of Originator's right, title and interest in the Related Security and associated with the CollectionsReceivables, in each case, free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(Jxi) 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 a the Purchase or at any subsequent time;time;
(Kxii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable;
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, ;
(xiv) the Year 2000 Problem; and
(Mxv) the failure by Originator or of any Affiliate Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to pay when due any taxes, including sales, excise or personal property taxesbe an Eligible Receivable at the time so included.
Appears in 1 contract
Samples: Receivables Sale Agreement (Graybar Electric Co Inc)
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (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 Buyer) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however:
(i) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such taxes (or franchise taxes paid in lieu thereof) imposed on an Indemnified Party to that are not in excess of the extent amount that would be owed if the computation of such taxes is consistent with transactions described in the Purchase Agreement are given the Intended Characterization; Characterization for tax purposes; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid in respect of any representations or warranties made by Originator under the terms of or in connection with this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury liability 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;Contract;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) 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 a the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) 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 Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(Jxi) 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 a the Purchase or at any subsequent time;time;
(Kxii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable;
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, ; and
(Mxiv) any failure of Originator to acquire and maintain legal and equitable title to, and ownership of any inventory, the failure by Originator sale or disposition of which purportedly gave rise to any Receivable, or any Affiliate related assets from Original Seller, free and clear of any Adverse Claim other than Permitted Adverse Claims; or any failure of Originator to pay when due give reasonably equivalent value to Original Seller under the Inventory Agreement in consideration of the transfer by Original Seller of any taxesReceivable, including sales, excise or personal property taxesany attempt by any Person to void such transfer under statutory provisions or common law or equitable action.
Appears in 1 contract
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (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 Buyer or any such assign) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however:
(i) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s 's principal executive office is located, and any jurisdiction in which such Indemnified Party is doing business (except to the extent that any such tax is imposed by such jurisdiction based upon this Agreement or any other Transaction Document), on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests under the Purchase Agreement as a loan or loans by the Purchasers to Buyer secured by, among other things, the Receivables, the Related Security and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers officer of Originator) or any Original Seller (or any officer of any such PersonOriginal Seller) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator or any Original Seller pursuant hereto or thereto, which thereto that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator or any Original Seller, 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 or any Original Seller to keep or perform any of its obligations, express or implied, with respect to any Contract;Contract;
(Ciii) any failure of Originator or any Original Seller to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury or damage suitdamage, 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;Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gvii) 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 a Purchaseany Purchase Price Payment, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator or any Original Seller in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) 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 Termination Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ix) any failure of Originator 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 Original Seller thereof, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Originator to give reasonably equivalent value to the Original Seller thereof under the Transfer Agreement in consideration of the transfer by such Original Seller of any such 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 Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the ReceivablesReceivables and the Collections, and all of Originator's right, title and interest in the Related Security and associated with the CollectionsReceivables, in each case, free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(Jxii) 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 a the Purchase or at any subsequent time;time;
(Kxiii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which Original Seller that reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable;
(Lxiv) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, ; and
(Mxv) the failure by Originator or of any Affiliate Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to pay when due any taxes, including sales, excise or personal property taxesbe an Eligible Receivable at the time so included.
Appears in 1 contract
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer and its assigns (including, without limitation, the Purchasers and the Agent), officers, directors, agents and employees of Buyer and its assigns (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, taxes and liabilities, costs, reasonable costs and expenses and for all other amounts payable, Table of Contents including reasonable attorneys’ fees (which attorneys may be employees of Buyer) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however:
(i) 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of any other provision of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;made;
(Biv) the failure by Originator 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 Table of Contents of Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;Contract;
(Cv) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Dvi) any products liability, environmental, personal injury liability 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;Contract;
(Evii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fviii) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gix) 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 a the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hx) any Termination 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;
(xi) any Amortization Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ixii) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, free and clear Table of Contents of any Adverse Claim (except as created by the Transaction Documents);Documents);
(J) 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 a Purchase or at any subsequent time;
(Kxiii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Receivable; and
(Lxiv) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, and
(M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxes.
Appears in 1 contract
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer and its assigns (including, without limitation, the Purchasers and the Agent), officers, directors, agents and employees of Buyer and its assigns (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, taxes and liabilities, costs, reasonable costs and expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of Buyer) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the Receivables, excluding, however:
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts Table of Contents resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of any other provision of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;made;
(Biv) the failure by Originator 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;Contract;
(Cv) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document; Table of Contents
(Dvi) any products liability, environmental, personal injury liability 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;Contract;
(Evii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount (including 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fviii) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;funds;
(Gix) 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 a the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hx) any Termination 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;
(xi) any Amortization Event described in Section 5.1(d)(iii) with respect to Buyer or Funding LLC5.1(d);
(Ixii) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);Documents);
(J) 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 a Purchase or at any subsequent time;
(Kxiii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);
(L) any avoidance or attempt by Originator or any of its Affiliates to void the Purchase hereunder under statutory provisions or common law or equitable action, Receivable; and
(M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxes.
Appears in 1 contract
Indemnities by Originator. Without limiting any other rights that Buyer any ------------------------- such Person may have hereunder or under applicable law, Originator hereby agrees to indemnify Buyer the Company and each of its successors, and assigns and the all officers, directors, employees and agents and employees of Buyer and its assigns any of the foregoing (each an “of the foregoing Persons being individually called a "Receivables Transfer Indemnified Party”) "), forthwith on demand, from and against -------------------------------------- any and all damages, losses, claims, taxesjudgments, liabilities, costs, expenses liabilities and for all other amounts payablerelated costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of collectively, the foregoing being collectively referred to as “"Receivables Transfer Indemnified Amounts”") awarded against ---------------------------------------- or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, following:
(a) the transfer by Buyer or its assigns Originator of an interest in any Receivable or Related Property to any Person other than the Receivables, excluding, however:Company;
(ib) Indemnified Amounts to the extent that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part breach of the Indemnified Party seeking indemnification, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are solely due to the credit risk of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C)), Originator shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(A) any representation or warranty made by or on behalf of Originator (or any officers of any such Person) in pursuant to this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, thereto which shall have been false or incorrect in any material respect when made or deemed made;made;
(Bc) the failure by Originator 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 or any failure of Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;regulation;
(Cd) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by Originator and Related Property free and clear of any failure Lien, other than any Lien arising solely as a result of Originator to perform its dutiesan act of the Company, covenants whether existing at the time of the purchase or other obligations in accordance with the provisions contribution of this Agreement such Receivables or at any other Transaction Document;time thereafter;
(D) any products liability, environmental, 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;
(Ee) any dispute, claim, offset or defense of any Obligor (other than its discharge in bankruptcy of the Obligorbankruptcy) of the Obligor to the payment of any Receivable other than any portion thereof constituting an Additional Amount sold and/or contributed hereunder (including a defense based on such Receivable or the related Contract therefor not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms but excluding discounts to, or based any Collections Originator is deemed to have received on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingReceivable thereof), or any other claim resulting from the sale of the merchandise or services related to such any Receivable or the furnishing or failure to furnish such merchandise or services;services; or any products liability claim arising out of or in connection with merchandise or services that are the subject of any Receivable;
(F) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables at any time with other funds;
(Gf) 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 a Purchasepurchases hereunder or the ownership of, or in respect of, any Receivables, Related Property or Contract;
(g) any tax or governmental fee or charge (other than any tax based 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 purchase, contribution or ownership of the Receivables or any other investigation, litigation or proceeding relating to Originator in which Related Property connected with any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;such Receivables;
(Hh) any Termination Event described failure of Originator to perform its duties or obligations in Section 5.1(d)(iii) accordance with the provisions of this Agreement, any other Transaction Document or any Contract related to a Receivable, including the commingling of Collections with respect to Buyer the Receivables by Originator (whether in its capacity as Originator or Funding LLC;Servicer) at any time with the funds of any other Person; excluding, however, (i) Receivables Transfer Indemnified Amounts to the extent --------- ------- resulting from gross negligence or willful misconduct on the part of a Receivables Transfer Indemnified Party and (ii) any indemnification which has the effect of recourse to Originator for non-payment of the Receivables due to credit reasons (except as otherwise specifically provided in this Agreement).
(Ia) any failure by Originator to vest in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership cause the filing of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(J) 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 any other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereofReceivable sold and/or contributed hereunder, whether at the time of a Purchase any such transfer or at any subsequent time;time;
(Kb) any action or omission claim brought by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (Person other than a Receivables Transfer Indemnified Party arising from any portion thereof constituting an Additional Amount);
(L) any avoidance or attempt activity by Originator or any of its Affiliates in servicing, administering or collecting any Receivables; If for any reason the indemnification provided above in this Section 7.1 is ----------- unavailable to void a Receivables Transfer Indemnified Party or is insufficient to hold such Receivables Transfer Indemnified Party harmless, then Originator shall contribute to the Purchase hereunder amount paid or payable by such Receivables Transfer Indemnified Party as a result of such loss, claim, damage or liability to the maximum extent permitted under statutory provisions or common law or equitable actionapplicable law. NO RECEIVABLES TRANSFER INDEMNIFIED PARTY SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, and
(M) the failure by Originator or any Affiliate to pay when due any taxesANY SUCCESSOR, including salesASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, excise or personal property taxesFOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF ANY TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER.
Appears in 1 contract
Indemnities by Originator. Without limiting any other rights that Buyer may have hereunder or under applicable law, Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns and the assigns, officers, directors, agents and employees of Buyer and its assigns (each 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 Buyer or any such assign) 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 or the acquisition, either directly or indirectly, by Buyer or its assigns of an interest in the ReceivablesReceivable Interest and/or the Contributed Interest, excluding, however:
(ia) Indemnified Amounts to the extent that 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, it being the intention of Originator to indemnify such Indemnified Party against the consequences of its own negligence;;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Pool Receivables that are solely due to the credit risk uncollectible on account of the Obligor and for which reimbursement would constitute recourse to Originator for uncollectible Receivables;insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the jurisdiction in which such Indemnified Party’s 's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests under the Purchase Agreement as a loan or loans by the Purchasers to Buyer secured by, among other things, the Receivable Interest and the Contributed Interest; provided, however, that nothing contained in this sentence shall limit the liability of Originator or limit the recourse of Buyer or its assigns to Originator for amounts otherwise specifically provided to be paid by Originator under the terms of this Agreement; or
(iv) Indemnified Amounts relating to and affecting only Additional Amounts. Without limiting the generality of the foregoing indemnification and, in the case of the following clauses (D) through (M), in each case without limiting Originator’s obligations under the following clauses (A), (B) or (C))indemnification, Originator shall indemnify the Indemnified Parties Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Pool Receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(Ai) any representation or warranty made by or on behalf of Originator (or any officers of any such PersonOriginator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by such Person Originator pursuant hereto or thereto, which thereto that shall have been false or incorrect when made or deemed made;made;
(Bii) the failure by Originator Originator, to comply with any applicable law, rule or regulation with respect to any Pool Receivable or Contract related thereto, or the nonconformity of any Pool 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;Contract;
(Ciii) any failure of Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;Document;
(Div) any products liability, environmental, personal injury or damage suit, 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;Pool Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Pool Receivable other than any portion thereof constituting an Additional Amount (including including, without limitation, a defense based on such Pool 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 based on such Obligor being immune from claims on the grounds on sovereign immunity or otherwise immune or not subject to legal action, suit or proceedingterms), or any other claim resulting from the sale of the merchandise or services service related to such Pool Receivable or the furnishing or failure to furnish such merchandise or services;services;
(Fvi) the commingling by or on behalf of Originator or any of its Affiliates of Collections of Receivables allocable to the Receivable Interest or the Contributed Interest at any time with other funds;funds;
(Gvii) 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 a Purchaseany Purchase Price payment, the ownership of the Receivables Receivable Interest or the Contributed Interest or any other investigation, litigation or proceeding relating to Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;hereby;
(Hviii) any inability to litigate any claim against any Obligor in respect of any Pool 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 Termination Event described in Section 5.1(d)(iii7.1(f) with respect to Buyer or Funding LLC(g);
(Ix) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables, the Related Security Receivable Interest and the Collections, Contributed Interest free and clear of any Adverse Claim (except as created by the Transaction Documents);Claim;
(Jxi) 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 Receivable Interest and Collections with respect theretothe Contributed Interest, and the proceeds of any thereof, whether at the time of a the Purchase or at any subsequent time;time;
(Kxii) any action or omission by Originator in contravention of this Agreement or any other Transaction Document which reduces or impairs the rights of Buyer with respect to any Pool Receivable or the value of any such Receivable (other than any portion thereof constituting an Additional Amount);Pool Receivable; and
(Lxiii) any avoidance or attempt by Originator or any of its Affiliates Person to void the Purchase hereunder under statutory provisions or common law or equitable action, and
(M) the failure by Originator or any Affiliate to pay when due any taxes, including sales, excise or personal property taxes.
Appears in 1 contract
Samples: Receivable Interest Sale Agreement (Ferrellgas Partners Finance Corp)
