Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify Buyer and its assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of 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 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification; (ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or (iii) taxes imposed by the United States or 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 such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from: (A) any representation or warranty made by such Originator (or any officers of any such Originator) 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; (B) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract; (C) any failure of such 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, personal liability or damage suit, or 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 an Obligor) of an Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services; (F) the commingling 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 the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby; (H) 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; (I) any Amortization Event described in Section 5.1(d); (J) 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; (K) 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 the Purchase or at any subsequent time; (L) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and (M) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action.
Appears in 2 contracts
Samples: Omnibus Amendment (Insight Enterprises Inc), Receivables Sale Agreement (Insight Enterprises Inc)
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of 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 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the United States States, the Indemnified Party’s jurisdiction of organization (or in the case of an individual, primary resident) 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 transaction contemplated hereby, 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 Characterizationcharacterization for income tax purposes of the acquisition by Market Street or the LC Bank of Receivables under the Purchase Agreement as a loan or loans by Market Street or the LC Bank 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 such any Originator or limit the recourse of Buyer to such any Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such but subject in each case to clauses (a), (b) and (c) above, an Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with any Purchase Report, this Agreement, any other Transaction Document or any other information or report delivered by any 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;
(Bii) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(Div) any products liability, personal liability 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;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(Fvi) the commingling of Collections of Receivables at any time with other 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 the PurchasePurchase hereunder, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated 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;
(Iix) any Amortization Termination Event described in Section 5.1(d);
(Jx) 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 such Originator’s right, title and interest in the Related Security and associated with the CollectionsReceivables, in each case, free and clear of any Adverse ClaimClaim except for Adverse Claims in favor of the Buyer and its assigns;
(Kxi) 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 the Purchase or at any subsequent time;
(Lxii) any action or omission by such Originator which reduces or impairs the rights of Buyer (or its assigns) with respect to any Receivable or the value of any such Receivable; and;
(Mxiii) any attempt by any Person to void any the Purchase hereunder under statutory provisions or common law or equitable action; and
(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.
Appears in 2 contracts
Samples: Receivables Sale Agreement (Arch Chemicals Inc), Receivables Sale Agreement (Arch Chemicals Inc)
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator Originator, with respect to itself, hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (each each, an “Originator Indemnified Party”) from and against any and all damages, losses, claims, taxesCovered Taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of BuyerBuyer or any such assign) and disbursements (all of the foregoing being collectively referred to as “Originator Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result any of this Agreement or the acquisition, either directly or indirectly, by Buyer of an interest in the Receivables, excluding, howeverfollowing:
(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;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States or 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 such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(A) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with its Purchase and Contribution Report, this Agreement, any other Transaction Document or any other information or report delivered by any or on behalf of such Person Originator pursuant hereto or thereto, thereto for which Buyer has not received a Purchase Price Credit in accordance with this Agreement that shall have been false or incorrect when made or deemed made;
(Bii) the failure by such Originator 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction DocumentDocument to which such Originator is a party;
(Div) any products liability, personal liability injury or damage suitdamage, suit or other similar claim arising out of or in connection with merchandisegoods, insurance or services that are the subject of any Contract or any ReceivableReceivable of such Originator;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorthe Obligor or failure to pay due to financial inability) of an the Obligor to the payment of any Receivable of such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(Fvi) the commingling of Collections of Receivables of such Originator at any time with other funds;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction DocumentDocument to which such Originator is a party, the transactions contemplated hereby, the such Originator’s use of the proceeds of the Purchaseany Purchase from it hereunder, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Originator Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(Hviii) any inability to litigate any claim against any Obligor in respect of any Receivable of such 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;
(I) any Amortization Event described in Section 5.1(d);
(Jix) any failure of such Originator to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the ReceivablesReceivables of such Originator and the associated Collections, and all of such 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;
(Kx) 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 such Originator, the Related Security and Collections with respect theretothereto in accordance with provisions hereof, and the proceeds of any thereof, whether at the time of the any Purchase from such Originator hereunder or at any subsequent time;
(Lxi) any action or omission by Purchase from such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and
(M) any attempt hereunder shall be voided by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action.; or
(xii) the failure of any Eligible Receivable of such Originator reflected as an Eligible Receivable on any Purchase and Contribution Report prepared by such Originator to be an Eligible Receivable at the time acquired by Buyer; and/or
Appears in 2 contracts
Samples: Receivables Contribution and Sale Agreement (Jarden Corp), Receivables Contribution and Sale Agreement (Jarden Corp)
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator Originator, jointly and severally, hereby agrees to indemnify Buyer and its assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of 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 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States or States, by the jurisdiction in which such Indemnified Party’s 's principal executive office is located, or by any other jurisdiction in the United States where such Indemnified Party has established a taxable nexus other than in connection with the transactions contemplated by this 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, but not including any such taxes resulting from the adoption after the date hereof of any law or any amendment or change in the interpretation of any existing or future law that subjects such Indemnified Party to taxes that would not be imposed by any law or the interpretation thereof existing on the date hereof (except for changes in the rate of such taxes); provided, however, that nothing contained in this sentence shall limit the liability of such Originator Originators or limit the recourse of Buyer to such Originator Originators for amounts otherwise specifically provided to be paid by such Originator Originators under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such each Originator shall shall, jointly and severally, indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by any such Person Originator pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(Bii) the failure by such Originator Originator, to comply with any applicable law, rule or regulation with respect to any Receivable Receivable, Contract or Contract Invoice related thereto, or the nonconformity of any Receivable Receivable, Contract or Contract Invoice included therein with any such applicable law, rule or regulation or any failure of such Originator to keep or perform any of its obligations, express or implied, with respect to any ContractContract or Invoice;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(Div) any products liability, personal liability or damage suit, or similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract Contract, Invoice or any Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Invoice or Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(Fvi) the commingling of Collections of Receivables at any time with other 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 the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated 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;
(Iix) any Amortization Termination Event described in Section 5.1(d6.1(d);
(Jx) 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;
(Kxi) 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 or the failure to stamp each Contract constituting "chattel paper" within the meaning of Section 9-105 of the UCC with a notation describing the assignments to Buyer with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of the Purchase or at any subsequent time;
(Lxii) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable;
(xiii) the operations of Jabil Mexico and the enforcement of the Agent's and the Purchaser's rights under the Estoppel Letter; and
(Mxiv) any attempt by any Person to void any the Purchase hereunder under statutory provisions or common law or equitable action.
Appears in 2 contracts
Samples: Annual Report, Receivables Sale Agreement (Jabil Circuit Inc)
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (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 BuyerBuyer 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 of an interest in the ReceivablesReceivables originated by such 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the United States States, the Indemnified Party’s jurisdiction of organization (or, in the case of an individual, primary residence) or the 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; provided, however, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such but subject to the exclusions in clauses (a), (b) and (c) above, each Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivablesReceivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originatorits officers) under or in connection with this Agreement, any other Transaction Document to which such 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;
(Bii) the failure by such 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 such any Originator to keep or perform any of its obligations, express or implied, with respect to any such Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction DocumentDocument to which it is a party;
(Div) any products liability, personal liability 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 ReceivableReceivable originated by such Originator;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable originated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise goods or service services related to such Receivable or the furnishing or failure to furnish such merchandise goods or services;
(Fvi) the commingling of Collections of such Receivables at any time with other funds;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction DocumentDocument to which such Originator is a party, the transactions contemplated hereby, the use by such Originator of the proceeds of the Purchase, the ownership of the Receivables any purchase from it hereunder or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(Hviii) 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;
(Iix) (A) failure of such Originator generally to pay its debts as such debts become due or admission by such Originator in writing of its inability to pay its debts generally or any Amortization Event described making by such Originator of a general assignment for the benefit of creditors; or (B) the institution of any proceeding by or against such 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 such Originator of any corporate action to authorize any of the actions set forth in Section 5.1(dclauses (A) or (B) above in this clause (ix);
(Jx) 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 such Originator and the associated Related Security and the Collections, free and clear of any Adverse ClaimClaim (except as created by the Transaction Documents);
(Kxi) 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 the Purchase sale to Buyer or at any subsequent time;; and
(Lxii) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and
(M) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action.
Appears in 2 contracts
Samples: Receivables Sale Agreement (RPM International Inc/De/), Receivables Sale Agreement (RPM International Inc/De/)
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (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 attorneys’ ' fees (which attorneys may be employees of Buyer) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”"INDEMNIFIED AMOUNTS") awarded against or incurred by any of them to the extent arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by Buyer of an interest in the ReceivablesReceivables originated by such Originator, excludingEXCLUDING, howeverHOWEVER:
(ia) 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;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables originated by such Originator that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or;
(iiic) taxes imposed by the United States or 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 CharacterizationParty; providedor
(d) amounts for which Buyer has actually received a Purchase Price Credit as required by Section 1.3; PROVIDED, howeverHOWEVER, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such but subject in each case to clauses (a), (b), (c) and (d) above, each Originator shall indemnify (without duplication) Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made or deemed made by such Originator (or any officers of any Performance Guarantor or such Originator) under or in connection with any Purchase Report, this Agreement, any other Transaction Document or any other information or report delivered by any Performance Guarantor or 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;
(Bii) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(Ciii) any failure of Performance Guarantor or such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction DocumentDocument to which it is a party;
(Div) any products liability, personal liability 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;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable (including, without limitation, 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 any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(Fvi) the commingling of Collections of Receivables at any time with other funds;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated herebyTransactions, the such Originator's use of the proceeds of the PurchasePurchase from it hereunder, the ownership of the Receivables originated by such Originator or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated herebyTransactions;
(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;
(Iix) any Amortization Termination Event described in Section 5.1(dSECTION 6.1(e);
(J) 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;
(K) 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 the Purchase or at any subsequent time;
(L) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and
(M) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action.
Appears in 2 contracts
Samples: Receivables Sale Agreement (Spherion Corp), Receivables Sale Agreement (Spherion Corp)
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator Originator, jointly and severally, hereby agrees to indemnify Buyer and its assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of 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 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States or States, by the jurisdiction in which such Indemnified Party’s 's principal executive office is located, or by any other jurisdiction in the United States where such Indemnified Party has established a taxable nexus other than in connection with the transactions contemplated by this 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, but not including any such taxes resulting from the adoption after the date hereof of any law or any amendment or change in the interpretation of any existing or future law that subjects such Indemnified Party to taxes that would not be imposed by any law or the interpretation thereof existing on the date hereof (except for changes in the rate of such taxes); provided, however, that nothing contained in this sentence shall limit the liability of such Originator Originators or limit the recourse of Buyer to such Originator Originators for amounts otherwise specifically provided to be paid by such Originator Originators under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such each Originator shall shall, jointly and severally, indemnify Buyer the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by any such Person Originator pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(Bii) the failure by such Originator Originator, to comply with any applicable law, rule or regulation with respect to any Receivable Receivable, Contract or Contract Invoice related thereto, or the nonconformity of any Receivable Receivable, Contract or Contract Invoice included therein with any such applicable law, rule or regulation or any failure of such Originator to keep or perform any of its obligations, express or implied, with respect to any ContractContract or Invoice;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(Div) any products liability, personal liability or damage suit, or similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract Contract, Invoice or any Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Invoice or Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(Fvi) the commingling of Collections of Receivables at any time with other 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 the a Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated 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;
(Iix) any Amortization Termination Event described in Section 5.1(d6.1(d);
(Jx) 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;
(Kxi) 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 the Purchase or at any subsequent timelaws;
(Lxii) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable;
(xiii) the operations of Jabil Mexico, Jabil Chihuahua or Jabil Reynosa and the enforcement of the Agent's and the Purchaser's rights under any Estoppel Letter; and
(Mxiv) any attempt by any Person to void any the Purchase hereunder under statutory provisions or common law or equitable action.
Appears in 1 contract
Indemnities by Originators. Without limiting any other rights that Buyer which the Company may have hereunder or under applicable law, each Originator hereby agrees to indemnify Buyer the Company and each of its assigns, officers, directors, employees and agents and employees (each an “of the foregoing Persons being individually called a "Sale Indemnified Party”) "), 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 and documented attorneys’ ' fees (which attorneys may be employees of Buyer) and disbursements (all of the foregoing being collectively referred to as “called "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 such Originator of an interest in any Transferred Receivable or Related Right to any Person other than 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnificationCompany;
(iib) Indemnified Amounts to without duplication of amounts paid as Deemed Collections, the extent the same includes losses in respect breach of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States or 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 such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(A) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with this Agreement, Agreement or any other Transaction Document Document, or any other information or report delivered by any such Person Originator pursuant hereto or thereto, thereto which shall have been false or incorrect in any material respect when made or deemed made;; -24-
(Bc) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contractregulation;
(C) any failure of such 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, personal liability or damage suit, or 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 an Obligor) of an Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(Fd) the commingling 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 the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(H) 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;
(I) any Amortization Event described in Section 5.1(d);
(J) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal the Company an ownership interest in the Transferred Receivables 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 arising solely as a result of an act of the Company, the Purchasers or the Administrative Agent, whether existing at the time of the purchase of such Transferred Receivables or at any time thereafter;
(Ke) the failure of such Originator to have filedfile with respect to itself, 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 thereofTransferred Receivables or purported Transferred Receivables generated by such Originator, whether at the time of the Purchase any purchase or at any subsequent time;
(Lf) without duplication of amounts paid as Deemed Collections, any action dispute, claim, offset or omission defense (other than discharge in bankruptcy) of the Obligor to the payment of any Transferred Receivable or purported Transferred Receivable generated by such Originator which reduces (including, without limitation, a defense based on such Receivables or impairs the rights related Contracts not being a legal, valid and binding obligation of Buyer such Obligor enforceable against it in accordance with respect its terms), or any other claim resulting from the services or merchandise related to any such Transferred Receivable or the value furnishing of or failure to furnish such services or merchandise;
(g) any product liability claim arising out of or in connection with services or merchandise that are the subject of any Transferred Receivable generated by such ReceivableOriginator; and
(Mh) any attempt tax or governmental fee or charge (but not including franchise taxes imposed with respect to net income or taxes upon or measured by net income), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable and documented fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Transferred Receivables generated by such Originator or any Person Related Right connected with any such Transferred Receivables; -25- excluding, however, (i) Sale Indemnified Amounts to void the extent resulting from gross negligence or willful misconduct on the part of such Sale Indemnified Party, and (ii) any Purchase hereunder indemnification which has the effect of recourse to such Originator for non-payment of the Transferred Receivables due to credit problems of the Obligors. If for any reason the indemnification provided above in this Section 8.1 is unavailable to a Sale Indemnified Party or is insufficient to hold such Sale Indemnified Party harmless, then such Originator shall contribute to the amount paid or payable by such Sale Indemnified Party to the maximum extent permitted under statutory provisions or common law or equitable actionapplicable law.
Appears in 1 contract
Indemnities by Originators. (a) Without limiting any other rights that the Buyer or the Agent (as the Buyer’s assignee) may have hereunder or under applicable law, and except to the extent of matters addressed in accordance with Section 4.5, each Originator hereby agrees to indemnify Buyer the Buyer, the Agent (as the Buyer’s assignee) and its assignseach Lender (as the principals for whom the Agent is acting as agent), and each of their respective officers, directors, employees and agents and employees (each of the foregoing Persons being individually called an “RPSA Indemnified Party”), forthwith on demand by the Borrower (in the case of the Buyer and its officers, directors, employees and agents) or the Agent (as to each other RPSA Indemnified Party), from and against any and all damages, claims, losses, claims, taxesjudgments, liabilities, costs, penalties and related 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”fees) awarded against or incurred by any of them arising out of of, relating to or as a result of this Agreement or the acquisition, either directly or indirectly, by Buyer of an interest in the Receivables, excluding, howeverconnection with:
(i) Indemnified Amounts the transfer by such Originator of any interest in any Receivable sold or otherwise conveyed (or purported to be sold or otherwise conveyed) by such Originator hereunder (other than 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 indemnificationtransfer thereof hereunder);
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvencyany representation, bankruptcy warranty or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States statement made or 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 such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(A) any representation or warranty deemed made by such Originator (or any officers of any such Originatorits respective officers) 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, Agreement which shall have been false untrue or incorrect when made or deemed made;
(Biii) the failure by such Originator to comply with the terms of any Basic Document to which such Originator is a party or with any applicable law, rule or regulation law with respect to any Receivable sold or Contract related thereto, otherwise conveyed (or purported to be sold or otherwise conveyed) by such Originator hereunder or the nonconformity related Contract; or the failure of any Receivable sold or Contract included therein with otherwise conveyed (or purported to be sold or otherwise conveyed) by such Originator hereunder (or the related Contract) to conform to any such applicable law;
(iv) the lack of an enforceable ownership interest, rule or regulation a first priority perfected lien, in the Receivables (and all Related Security) sold or otherwise conveyed (or purported to be sold or otherwise conveyed) by such Originator hereunder against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim (other than Permitted Liens);
(v) the failure to have filed, or any failure delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of such Originator to keep any applicable jurisdiction or perform any of its obligations, express or implied, other applicable laws with respect to any ContractReceivable sold or otherwise conveyed (or purported to be sold or otherwise conveyed) by such Originator hereunder;
(C) any failure of such 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, personal liability or damage suit, or similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(Evi) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an the Obligor to the payment of any Receivable sold or otherwise conveyed (including, without limitation, or purported to be sold or otherwise conveyed) by such Originator hereunder (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 such Obligor in accordance with its terms), ) or any other claim resulting from the sale of the merchandise or service related relating to collection activities with respect to such Receivable or the furnishing or failure to furnish such merchandise or servicesReceivable;
(Fvii) any failure of such Originator (A) to perform any its duties or obligations in accordance with the provisions hereof and of each other Basic Document to which such Originator is a party and related to Receivables sold or otherwise conveyed (or purported to be sold or otherwise conveyed) by such Originator hereunder or (B) to timely and fully comply with the Credit and Collection Policies and Procedures in regard to each such Receivable;
(viii) any product liability, environmental or other suit or claim arising out of or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Receivable sold or otherwise conveyed (or purported to be sold or otherwise conveyed) by such Originator hereunder;
(ix) if (but only to the extent) otherwise permitted under the RLSA, the commingling by or on behalf of such Originator of Collections of Receivables sold or otherwise conveyed (or purported to be sold or otherwise conveyed) by such Originator hereunder at any time with other funds;
(Gx) any investigation, litigation or proceeding (actual or threatened) by or on behalf of or with respect to such Originator and related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating Basic Document to which such Originator in which any Indemnified Party becomes involved as is a result of any of the transactions contemplated hereby;
(H) any inability to litigate any claim against any Obligor party or 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 sold or otherwise from conveyed (or purported to be sold or otherwise conveyed) by such Originator hereunder (or any legal action, suit or proceeding;
(I) any Amortization Event described in Section 5.1(dRelated Rights);
(Jxi) 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 setoff by any Adverse Claim;
Obligor (K) 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 Affiliate thereof) with respect to any ReceivableReceivable sold or otherwise conveyed (or purported to be sold or otherwise conveyed) by such Originator hereunder;
(xii) any claim brought by any Person other than an RPSA Indemnified Party arising from any activity by such Originator;
(xiii) the failure by such Originator to pay when due any taxes, the Related Security including sales, excise or personal property taxes; or
(xiv) any tax or governmental fee or charge, all interest and Collections penalties thereon or with respect thereto, and the proceeds of all reasonable out-of-pocket costs and expenses, including reasonable attorneys’ fees, in defending against all or any thereof, whether at the time part of the Purchase foregoing, which are required to be paid by reason of the purchase or at any subsequent time;
ownership of the Receivables sold or otherwise conveyed (Lor purported to be sold or otherwise conveyed) any action or omission by such Originator which reduces hereunder (or impairs any Related Rights); provided that such indemnity shall not be available to any RPSA Indemnified Party to the rights extent that such losses, claims, damages, liabilities or related expenses: (x) are determined by a court of Buyer competent jurisdiction in a final judgment to have resulted from the gross negligence or willful misconduct of (i) such RPSA Indemnified Party, (ii) the Agent (but only in the case of any RPSA Indemnified Party claiming through the Agent), or (iii) any Lender (but only in the case of any RPSA Indemnified Party claiming through such Lender); or (y) constitute recourse with respect to any a Receivable by reason of the bankruptcy or insolvency, lack of creditworthiness or other financial inability to pay of the value of any such Receivable; andrelated Obligor.
(Mb) Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in clauses (ii), (iii) and (vii) of subsection (a) above, any attempt representation, warranty or covenant qualified by any Person the occurrence or non-occurrence of a material adverse effect (or similar concepts of materiality) shall be deemed to void any Purchase hereunder under statutory provisions or common law or equitable actionbe not so qualified.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Indemnities by Originators. Without limiting any other rights that Buyer which any Affected Party may have hereunder or under applicable lawlaw (including, without limitation, the right to recover damages for breach of contract), each Originator hereby agrees to indemnify Buyer and its assigns, officers, directors, agents and employees (each an the “Indemnified PartyParties”) ), from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses liabilities and for all other amounts payablerelated costs and expenses, including reasonable attorneys’ fees (which attorneys may be employees of Buyer) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) ), awarded against or incurred by any of them such Indemnified Party to the extent relating to or arising out of from or as a result of this Agreement or the acquisition, either directly or indirectly, acquisition by Buyer 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States or 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 such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid originated by such Originator under the terms of this AgreementOriginator. Without limiting the generality of the foregoing indemnification, such each Originator shall indemnify Buyer the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting fromfrom any of the following:
(Ai) the transfer by such Originator of an interest in any Receivable other than an Eligible Receivable;
(ii) reliance on any representation or warranty made or deemed made by such Originator (under this Agreement or any officers of any such Originator) 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, to which it is a party which shall have been false or incorrect in any respect when made or deemed made;
(Biii) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Receivable Receivable, the related Contract, or Contract related theretothe Related Security, or the nonconformity of any Receivable Receivable, the related Contract or Contract included therein the Related Security with any such applicable law, rule or regulation or any failure of such Originator to keep or perform any of its obligations, express or implied, with respect to any Contractregulation;
(Civ) any failure of such Originator Adverse Claim attaching to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement any Receivable or any other Transaction DocumentRelated Security or Collections with respect thereto, whether existing at the time that such Receivable initially arose or at any time thereafter, excluding any Adverse Claim arising under the Purchase Agreement;
(Dv) any products liability, liability claim or personal liability injury or property damage suit, suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise, insurance the goods or services that the sale or provision of which gave rise to or are the subject of any Contract Receivable or any ReceivableContract;
(Evi) the failure to vest and maintain vested in the Buyer (such that Buyer can further assign without any restriction imposed by such Originator or by reason of any residual interest held by such Originator), a first priority perfected ownership interest in the Receivables, together with all Collections and Related Security, free and clear of any Lien except a Lien in favor of any Affected Party, whether existing at the time such Receivable arose or at any time thereafter;
(vii) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the applicable UCC or other applicable laws naming such Originator as “Debtor” with respect to any Receivable or any Related Security or Collections related thereto;
(viii) any dispute, claim, offset or defense (other than discharge in as a result of the bankruptcy or insolvency of an the related Obligor) of an Obligor to the payment of any Receivable originated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise goods or service services related to such Receivable or the furnishing or failure to furnish such merchandise goods or servicesservices (other than as a result of the bankruptcy or insolvency of the related Obligor);
(Fix) the commingling of Collections with any other funds of Receivables at such Originator or any time with Affiliate of such Originator other fundsthan as permitted pursuant to the Facility Documents;
(Gx) any investigation, litigation or proceeding related to this Agreement or arising from the use of proceeds of purchases made pursuant to this Agreement or any other Transaction Document, the transactions contemplated hereby, the use Document delivered hereunder or in respect of any of the proceeds Receivables, Related Security and Collections related hereto excluding any collection costs of the Purchase, Buyer or its assigns where the ownership Obligor is financially unable to pay;
(xi) any claim brought by any Person arising from any activity by such Originator or an Affiliate of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which servicing, administering or collecting any Receivable; or
(xii) the sale by such Originator of any Receivable in violation of any applicable law, rule or regulation;
(xiii) provided, that no Originator shall be required to indemnify any Indemnified Party becomes involved to the extent of any amounts (w) resulting from the gross negligence or willful misconduct of such Indemnified Party, or (x) constituting recourse for the lack of creditworthiness of an Obligor or the failure of an Obligor to pay a Receivable due to bankruptcy, insolvency or the financial inability of such Obligor to pay such Receivable, or (y) constituting net income taxes that are imposed by the United States or franchise taxes or net income taxes that are imposed on such Indemnified Party by the jurisdiction under the laws of which such Indemnified Party is organized or in which it is otherwise doing business or any political subdivision thereof, arising out of or as a result of any of the transactions contemplated hereby;
(H) any inability to litigate any claim against any Obligor this Agreement or 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;
(I) any Amortization Event described in Section 5.1(d);
(J) any failure to vest and maintain vested in BuyerContract, or to transfer to Buyer, legal and equitable title to, and ownership of, (z) which other provisions of this Agreement expressly provide are not payable by the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim;
(K) 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 the Purchase or at any subsequent time;
(L) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and
(M) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable actionOriginators hereunder.
Appears in 1 contract
Indemnities by Originators. (a) Without limiting any other rights that Buyer (or its assigns) may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents agents, employees and employees affiliates (each each, an “Originator Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses losses and for all other amounts payable, liabilities (including reasonable attorneys’ fees (which attorneys may be employees of BuyerAttorney Costs) and disbursements (all of the foregoing being collectively referred to as “Originator 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 of an interest in the Receivables, Contracts, or Related Security, excluding, however, in all of the foregoing instances:
(i) Originator Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Originator Indemnified Amounts resulted from bad faith, gross negligence or willful misconduct on the part of the Originator Indemnified Party seeking indemnification;
(ii) Originator Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States federal government or the jurisdiction in which such Originator Indemnified Party’s principal executive office is located, or, in the case of an assign that is a Purchaser, its applicable lending office is located, on or measured by the overall net or gross income of such Originator Indemnified Party to the extent that the computation of such taxes is consistent with the Intended CharacterizationParty; provided, however, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of or being limited by the foregoing indemnification, each Originator shall pay on demand to each Originator Indemnified Party any and all amounts necessary to indemnify such Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:from any of the following (but excluding Originator Indemnified Amounts and taxes described in clauses (i), (ii) and (iii) above):
(Ai) any Pool Receivable which the Seller or the Servicer includes as an Eligible Receivable as part of the Net Receivables Balance but which is not an Eligible Receivable at such time;
(ii) any representation or warranty made by such any Originator (or any officers of any such Originator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by or on behalf of any such Person Originator pursuant hereto or thereto, thereto for which Buyer has not received a Purchase Price Credit in accordance with this Agreement that shall have been false or incorrect when made or deemed made;
(Biii) the failure by such Originator any Originator, to comply with any applicable law, rule or regulation Applicable Law with respect to any Receivable or Contract related thereto, or the nonconformity failure of any Pool Receivable or the related Contract included therein with to conform to any such Applicable Law;
(iv) the failure to vest in the Buyer a first priority perfected ownership interest in all or any portion of the Receivables, in each case free and clear of any Adverse Claim;
(v) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable lawjurisdiction or other Applicable Laws with respect to any Pool Receivable, rule whether at the time of any Investment or regulation or at any subsequent time;
(vi) any failure of such any Originator to keep or perform any of its obligations, express duties or implied, with respect to any Contract;
(C) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(vii) any products liability, environmental or other claim arising out of or in connection with any Pool Receivable or other merchandise, goods or services which are the subject of or related to any Pool Receivable;
(viii) the commingling of Collections of Pool Receivables at any time with other funds;
(ix) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or the use of proceeds of any Investments or in respect of any Pool Receivable or any related Contract;
(x) any failure of any Originator to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(Dxi) any products liability, personal liability or damage suit, or similar claim arising out of or in connection setoff with merchandise, insurance or services that are the subject of respect to any Contract or any Pool Receivable;
(Exii) any claim brought by any Person other than an Originator Indemnified Party arising from any activity by any Originator or any Affiliate of any Originator in servicing, administering or collecting any Pool Receivable;
(xiii) the failure by any Originator to pay when due any taxes, including, without limitation, sales, excise or personal property taxes;
(xiv) any failure of a Collection Account Bank to comply with the terms of the applicable Account Control Agreement, the termination by a Collection Account Bank of any Account Control Agreement or any amounts (including in respect of any indemnity) payable by the Administrative Agent to a Collection Account Bank under any Account Control Agreement;
(xv) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Pool Receivable (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 any other claim resulting from the sale of goods or the merchandise or service rendering of services related to such Pool Receivable or the furnishing or failure to furnish any such merchandise goods or servicesservices or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(F) the commingling of Collections of Receivables at any time with other funds;
(Gxvi) any investigation, litigation or proceeding related action taken by the Administrative Agent as attorney-in-fact for any Originator pursuant to or arising from this Agreement or any other Transaction Document, ;
(xvii) the transactions contemplated hereby, failure or delay to provide any Obligor with an invoice or other evidence of indebtedness; or
(xviii) the use of the proceeds of the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(H) 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;
(I) any Amortization Event described in Section 5.1(d);
(J) 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;
(K) 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 Investment. Any indemnification or contribution under this Section shall survive the time termination of the Purchase or at any subsequent time;
(L) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and
(M) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable actionthis Agreement.
Appears in 1 contract
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify the Buyer and its assigns, respective officers, directors, agents agents, employees, assigns (including the Administrative Agent and employees each Secured Party), controlling Persons or Affiliates of any of the foregoing (each each, an “Indemnified Party”) may have hereunder, under any other Transaction Document or under applicable Law, the Originators, jointly and severally, agree to indemnify and keep indemnified each Indemnified Party from and against any and all damages, losses, claims, taxesliabilities, liabilitiesdeficiencies, costs, expenses disbursements and for all other amounts payableexpenses, including reasonable attorneysinterest, penalties, amounts paid in settlement and lawyers’ fees (which attorneys may be employees of Buyer) and disbursements expenses (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any Indemnified Party (including in connection with or relating to any investigation by an Official Body, litigation or lawsuit (actual or threatened) or order, consent, decree, judgment, claim or other action of them whatever sort (including the preparation of any defense with respect thereto regardless of whether such Indemnified Party is a party thereto)), in each case, arising out of or as a result of resulting from this Agreement or the acquisition, either directly or indirectly, by Buyer of an interest in the Receivablesany transaction contemplated hereby, excluding, however:
however (ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts are finally judicially determined to have resulted from the bad faith, gross negligence negligence, or willful misconduct on the part of the such Indemnified Party seeking indemnification;
Party, and (iib) Indemnified Amounts to the extent the same includes losses recourse (except as otherwise specifically provided in respect of this Agreement or any other Transaction Document) for Acquired Receivables that are uncollectible not collected or not collectable on account of the insolvency, bankruptcy or lack of creditworthiness of financial inability to pay off the related Obligor; or
(iii) taxes imposed by the United States or the jurisdiction Obligors in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income respect of such Indemnified Party Acquired Receivables and (c) Taxes, excluding those Taxes owed 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 such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this AgreementBorrower. Without limiting the generality of the foregoing indemnification, such Originator but subject to the exclusions set forth in clauses (a) and (b), above, the Originators jointly and severally shall indemnify Buyer each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) reliance on any representation or warranty made by such any Originator (or any officers of any such OriginatorPerson) 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;
(Bii) the failure by such any Originator to comply with any term, provision or covenant contained in a Transaction Document or any agreement executed in connection with a Transaction Document or 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contractregulation;
(Ciii) any failure of such an Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(Div) any products liabilitylibel, personal liability 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;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable (including, without limitation, (x) 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), (y) any defense or dispute relating to whether, as between an Advertising Agency and the related Advertising Agency Clients, which Person or Persons are obligated to make payment on a Receivable (whether before or after an Advertising Agency Client remits payment to the related Advertising Agency), and (z) or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(Fvi) the commingling of Collections of Receivables at any time with other 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 the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such an Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated 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;
(Iix) any Amortization Originator Termination Event described in Section 5.1(d7.01 (Originator Termination Events);
(Jx) any failure of any Transferee or its assigns 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 applicable Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of the Borrower to give reasonably equivalent value to the applicable Originator under the Receivables Purchase Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xi) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, the Buyer legal and equitable title to, and ownership of, and a first priority perfected ownership interest or any failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Receivables, the Related Security Security, the Collections and the CollectionsCollection Accounts, in each case free and clear of any Adverse ClaimClaim (except as created by the Transaction Documents);
(Kxii) 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 the any Purchase or at any subsequent time;
(Lxiii) the failure by an Originator to be duly qualified to do business, to be in good standing or to have filed appropriate fictitious or assumed name registration documents in any jurisdiction where its ownership of property or the conduct of business requires such qualification;
(xiv) the failure of an Originator to pay when due any Taxes or charges imposed on such party;
(xv) any action or omission by such an Originator which reduces or impairs the rights of Buyer the Parent, the Buyer, the Administrative Agent, the Funding Agents or the Lenders with respect to any Receivable or the value of any such Receivable; and;
(Mxvi) any attempt by any Person to void any Purchase hereunder Purchase, Contribution of Receivables to the Parent or the Buyer or any Loan or any other transaction contemplated by the Transaction Documents under statutory provisions or common law or equitable action; and
(xvii) the failure of any Receivable included in the calculation of the Net Receivables Balance by an Originator in its capacity as a Servicer Party or otherwise as an Eligible Receivable to be an Eligible Receivable at the time so included.
Appears in 1 contract
Indemnities by Originators. Without limiting any other rights --------------------------- that the Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) the Buyer and its assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of Buyer) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against and actually paid or actually incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by the Buyer of an any interest in the ReceivablesReceivables originated by such 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables originated by such Originator that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the United States or the jurisdiction in which such Indemnified Party’s 's principal executive office is located, on or measured by the overall net income or gross receipts of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended CharacterizationParty; provided, however, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of the Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such Originator shall indemnify Buyer for Indemnified Amounts but subject in each case to clauses (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(A) any representation or warranty made by such Originator (or any officers of any such Originator) 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;
(B) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(C) any failure of such 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, personal liability or damage suit, or 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 an Obligor) of an Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its termsa), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(F) the commingling 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 the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(H) 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;
(I) any Amortization Event described in Section 5.1(d);
(J) 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;
(K) 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 the Purchase or at any subsequent time;
(L) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and
(M) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action.,
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Mohawk Industries Inc)
Indemnities by Originators. Without limiting any other rights that the Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) the Buyer and its assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of Buyer) and disbursements actually incurred (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against and actually paid or actually incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by the Buyer of an any interest in the ReceivablesReceivables originated by such 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same arise out of or as a result of claims of one or more Indemnified Parties against another Indemnified Party;
(c) Indemnified Amounts to the extent the same includes losses in respect of Receivables originated by such Originator that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiid) taxes imposed by the United States or the jurisdiction in which such Indemnified Party’s 's principal executive office is located, on or measured by the overall net income or gross receipts of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended CharacterizationParty; provided, however, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of the Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such but subject in each case to clauses (a), (b) and (c) above, each Originator shall indemnify the Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with any Purchase Report, this Agreement, any other Transaction Document to which such Originator is a party or any other information or report delivered by any such Person Originator pursuant hereto or thereto, thereto for which the Buyer has not received a Purchase Price Credit that shall have been false or incorrect when made or deemed made;
(Bii) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(Div) any products liability, personal liability injury or damage suitdamage, suit or other similar claim arising out of or in connection with merchandise, insurance goods or services that are the subject of any Contract or any Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise goods or service related to such Receivable or the furnishing or failure to furnish such merchandise goods or services;
(Fvi) the commingling of any Collections of Receivables at any time with other fundsreceived, directly or indirectly by an Originator (or its agent) which are not promptly remitted to Buyer;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the such Originator's use of the proceeds of the PurchasePurchase from it hereunder, the ownership of the Receivables originated by such Originator or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(Hviii) any inability to litigate any claim against any Obligor in respect of any Receivable reflected in any Purchase Report as being an Eligible 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;
(Iix) any Amortization Termination Event described in Section 5.1(d);
(Jx) any failure to vest and maintain vested in the Buyer, or to transfer to the Buyer, legal ownership of the Receivables originated by such Originator and equitable title topurported to be conveyed to the Buyer hereunder, and ownership oftogether with the associated Related Security, the Receivables, the Related Security and the Collectionsin each case, free and clear of any Adverse Claim;
(Kxi) 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 the applicable laws with of Canadawith respect to any Receivable, Receivable originated by such Originator and the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of the Purchase from such Originator hereunder or at any subsequent time;
(Lxii) any action or omission by such Originator which reduces or impairs the rights of the Buyer with respect to any Receivable or reduces the value of any such ReceivableReceivable (for any reason other than the application of Collections thereto or charge-off of any Receivable as uncollectible) unless the Buyer has received a Purchase Price Credit therefor; and
(Mxiii) the failure of any attempt by any Person to void Receivable reflected as an Eligible Receivable on any Purchase hereunder under statutory provisions or common law or equitable actionReport prepared by such Originator to be an Eligible Receivable at the time acquired by the Buyer.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Mohawk Industries Inc)
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator Originator, with respect to itself, hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (each each, an “Originator Indemnified Party”) from and against any and all damages, losses, claims, taxesCovered Taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of BuyerBuyer or any such assign) and disbursements (all of the foregoing being collectively referred to as “Originator Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result any of this Agreement or the acquisition, either directly or indirectly, by Buyer of an interest in the Receivables, excluding, howeverfollowing:
(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;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States or 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 such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(A) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with its Purchase and Contribution Report, this Agreement, any other Transaction Document or any other information or report delivered by any or on behalf of such Person Originator pursuant hereto or thereto, thereto for which Buyer has not received a Purchase Price Credit in accordance with this Agreement that shall have been false or incorrect when made or deemed made;
(Bii) the failure by such Originator 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction DocumentDocument to which such Originator is a party;
(Div) any products liability, personal liability injury or damage suitdamage, suit or other similar claim arising out of or in connection with merchandisegoods, insurance or services that are the subject of any Contract or any ReceivableReceivable of such Originator;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorthe Obligor or failure to pay due to financial inability) of an the Obligor to the payment of any Receivable of such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(Fvi) the commingling of Collections of Receivables of such Originator at any time with other funds;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction DocumentDocument to which such Originator is a party, the transactions contemplated hereby, the such Originator’s use of the proceeds of the Purchaseany Purchase from it hereunder, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Originator Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(Hviii) any inability to litigate any claim against any Obligor in respect of any Receivable of such 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;
(I) any Amortization Event described in Section 5.1(d);
(Jix) any failure of such Originator to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the ReceivablesReceivables of such Originator and the associated Collections, and all of such 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;
(Kx) 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 such Originator, the Related Security and Collections with respect theretothereto in accordance with provisions hereof, and the proceeds of any thereof, whether at the time of the any Purchase from such Originator hereunder or at any subsequent time;
(Lxi) any action or omission by Purchase from such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and
(M) any attempt hereunder shall be voided by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action.; or
(xii) the failure of any Eligible Receivable of such Originator reflected as an Eligible Receivable on any Purchase and Contribution Report prepared by such Originator to be an Eligible Receivable at the time acquired by Buyer; and/or excluding, however, (a) Originator Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that Originator Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Originator Indemnified Party seeking
Appears in 1 contract
Samples: Receivables Contribution and Sale Agreement (Jarden Corp)
Indemnities by Originators. (a) Without limiting any other rights that the Buyer or the Agent (as the Buyer’s assignee) may have hereunder or under applicable law, and except to the extent of matters addressed in accordance with Section 4.5, each Originator hereby agrees to indemnify Buyer the Buyer, the Agent (as the Buyer’s assignee) and its assignseach Lender (as the principals for whom the Agent is acting as agent), and each of their respective officers, directors, employees and agents and employees (each of the foregoing Persons being individually called an “RPSA Indemnified Party”), forthwith on demand by the Borrower (in the case of the Buyer and its officers, directors, employees and agents) or the Agent (as to each other RPSA Indemnified Party), from and against any and all damages, claims, losses, claims, taxesjudgments, liabilities, costs, penalties and related 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”fees) awarded against or incurred by any of them arising out of of, relating to or as a result of this Agreement or the acquisition, either directly or indirectly, by Buyer of an interest in the Receivables, excluding, howeverconnection with:
(i) Indemnified Amounts the transfer by such Originator of any interest in any Receivable sold (or purported to be sold) by such Originator hereunder (other than 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 indemnificationtransfer thereof hereunder);
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvencyany representation, bankruptcy warranty or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States statement made or 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 such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(A) any representation or warranty deemed made by such Originator (or any officers of any such Originatorits respective officers) 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, Agreement which shall have been false untrue or incorrect when made or deemed made;
(Biii) the failure by such Originator to comply with the terms of any Basic Document to which such Originator is a party or with any applicable law, rule or regulation law with respect to any Receivable sold (or Contract related thereto, purported to be sold) by such Originator hereunder or the nonconformity related Contract; or the failure of any Receivable sold (or Contract included therein with purported to be sold) by such Originator hereunder (or the related Contract) to conform to any such applicable law;
(iv) the lack of an enforceable ownership interest in the Receivables (and all Related Security) sold (or purported to be sold) by such Originator hereunder against all Persons (including any Insolvency Official), rule or regulation in either case, free and clear of any Adverse Claim (other than Permitted Liens);
(v) the failure to have filed, or any failure delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of such Originator to keep any applicable jurisdiction or perform any of its obligations, express or implied, other applicable laws with respect to any ContractReceivable sold (or purported to be sold) by such Originator hereunder;
(C) any failure of such 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, personal liability or damage suit, or similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(Evi) any dispute, claim, offset or defense defence (other than discharge in bankruptcy of an ObligorInsolvency Proceeding) of an the Obligor to the payment of any Receivable sold (including, without limitation, or purported to be sold) by such Originator hereunder (including a defense defence based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it such Obligor in accordance with its terms), ) or any other claim resulting from the sale of the merchandise or service related relating to collection activities with respect to such Receivable or the furnishing or failure to furnish such merchandise or servicesReceivable;
(Fvii) any failure of such Originator (A) to perform any its duties or obligations in accordance with the provisions hereof and of each other Basic Document to which such Originator is a party and related to Receivables sold (or purported to be sold) by such Originator hereunder or (B) to timely and fully comply with the Credit and Collection Policies and Procedures in regard to each such Receivable;
(viii) any product liability, environmental or other suit or claim arising out of or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Receivable sold (or purported to be sold) by such Originator hereunder;
(ix) except if (but only to the extent) otherwise permitted under the RLSA, the commingling by or on behalf of such Originator of Collections of Receivables sold (or purported to be sold) by such Originator hereunder at any time with other funds;
(Gx) any investigation, litigation or proceeding (actual or threatened) by or on behalf of or with respect to such Originator and related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating Basic Document to which such Originator in which any Indemnified Party becomes involved as is a result of any of the transactions contemplated hereby;
(H) any inability to litigate any claim against any Obligor party or in respect of any Receivable as a result of sold (or purported to be sold) by such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty Originator hereunder (or otherwise from any legal action, suit or proceeding;
(I) any Amortization Event described in Section 5.1(dRelated Rights);
(Jxi) 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 set-off by any Adverse Claim;
Obligor (K) 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 Affiliate thereof) with respect to any ReceivableReceivable sold (or purported to be sold) by such Originator hereunder;
(xii) any claim brought by any Person other than an RPSA Indemnified Party arising from any activity by such Originator;
(xiii) the failure by such Originator to pay when due any Taxes, the Related Security including sales, excise or personal property taxes; or
(xiv) any tax or governmental fee or charge, all interest and Collections penalties thereon or with respect thereto, and the proceeds of all reasonable out-of-pocket costs and expenses, including reasonable attorneys’ fees, in defending against all or any thereof, whether at the time part of the Purchase foregoing, which are required to be paid by reason of the purchase or at any subsequent time;
ownership of the Receivables sold (Lor purported to be sold) any action or omission by such Originator which reduces hereunder (or impairs any Related Rights); provided that such indemnity shall not be available to any RPSA Indemnified Party to the rights extent that such losses, claims, damages, liabilities or related expenses: (x) are determined by a court of Buyer competent jurisdiction in a final judgment to have resulted from the gross negligence or wilful misconduct of (i) such RPSA Indemnified Party, (ii) the Agent (but only in the case of any RPSA Indemnified Party claiming through the Agent), or (iii) any Lender (but only in the case of any RPSA Indemnified Party claiming through such Lender); or (y) constitute recourse with respect to any a Receivable by reason of the bankruptcy or insolvency, lack of creditworthiness or other financial inability to pay of the value of any such Receivable; andrelated Obligor.
(Mb) Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in clauses (ii), (iii) and (vii) of Subsection (a) above, any attempt representation, warranty or covenant qualified by any Person the occurrence or non-occurrence of a material adverse effect (or similar concepts of materiality) shall be deemed to void any Purchase hereunder under statutory provisions or common law or equitable actionbe not so qualified.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Indemnities by Originators. (a) Without limiting any other rights that the Buyer may have hereunder or under applicable lawApplicable Law, each Originator Originator, jointly and severally, hereby agrees to indemnify Buyer and the Buyer, each of its assigns, officers, directors, agents employees, agents, employees and employees respective assigns, the Administrative Agent and each Lender (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, claims, losses, claims, taxesjudgments, liabilities, costs, penalties and related 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”Attorney Costs) awarded against or incurred by any of them arising out of of, relating to or as a result of this Agreement or the acquisition, either directly or indirectly, by Buyer of an interest in the Receivables, excluding, howeverconnection with:
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from bad faithany representation, gross negligence warranty or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy statement made or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States or 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 such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(A) any representation or warranty deemed made by such Originator (or any officers of any such Originatorits respective officers) under or in connection with this Agreement, any of the other Transaction Document Documents or any other information or report delivered by any or on behalf of such Person Originator pursuant hereto or thereto, which shall have been false untrue or incorrect when made or deemed made;
(Bii) the transfer by such Originator of any interest in any Pool Receivable or Related Right other than the transfer of any Pool Receivable and Related Security to the Buyer pursuant to this Agreement and the grant of a security interest to the Buyer pursuant to this Agreement;
(iii) the failure by such Originator to comply with the terms of any applicable law, rule Transaction Document or regulation with any Applicable Law with respect to any Pool Receivable or the related Contract; or the failure of any Pool Receivable or the related Contract related theretoto conform to any such Applicable Law;
(iv) the lack of an enforceable ownership interest, or a first priority perfected lien, in the nonconformity Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Receivable or Contract included therein with any such applicable lawAdverse Claim;
(v) the failure to have filed, rule or regulation or any failure delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of such Originator to keep any applicable jurisdiction or perform any of its obligations, express or implied, other Applicable Laws with respect to any ContractPool Receivable or the Related Rights;
(Cvi) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable originated by such Originator);
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable in the Receivables Pool (including a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the property, products or services to such Receivable or the furnishing or failure to furnish such property, products or services;
(viii) any failure of such Originator to perform any its duties, covenants duties or other obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(ix) the commingling of Collections of Pool Receivables at any time with other funds;
(x) any setoff with respect to any Pool Receivable;
(xi) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction DocumentDocument or in respect of any Pool Receivable or any Related Rights;
(Dxii) any products liability, personal liability or damage suit, or similar claim brought by any Person other than a Purchase and Sale Indemnified Party arising out of or in connection with merchandise, insurance or services that are the subject of from any Contract activity by such Originator or any Affiliate of such Originator in servicing, administering or collecting any Pool Receivable;
(Exiii) the failure by such Originator to pay when due any taxes, including, without limitation, sales, excise or personal property taxes;
(xiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Pool Receivable (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 any other claim resulting from the sale of goods or the merchandise or service rendering of services related to such Pool Receivable or the furnishing or failure to furnish any such merchandise goods or servicesservices or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(Fxv) any product liability claim arising out of or in connection with goods or services that are the commingling subject of Collections of Receivables at any time with other fundsReceivable generated by such Originator;
(Gxvi) any investigationtax or governmental fee or charge, litigation all interest and penalties thereon or proceeding related with respect thereto, and all reasonable out-of-pocket costs and expenses, including without limitation reasonable Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or arising from ownership of the Receivables generated by such Originator or any Related Rights connected with any such Receivables; or
(xvii) any failure of such Originator to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document; provided that such indemnity shall not be available to any Purchase and Sale Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final judgment to have resulted from the transactions contemplated hereby, the use gross negligence or willful misconduct of a Purchase and Sale Indemnified Party or (y) constitute recourse with respect to a Pool Receivable by reason of the proceeds bankruptcy or insolvency, or the financial or credit condition or financial default, of the Purchaserelated Obligor.
(b) Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in clauses (i), (iii), (viii) and (xvii) of this Article IX, any representation, warranty or covenant qualified by the ownership occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be deemed to be not so qualified.
(c) If for any reason the Receivables or foregoing indemnification is unavailable to any other investigation, litigation or proceeding relating to such Originator in which any Purchase and Sale Indemnified Party becomes involved as a result of any of or insufficient to hold it harmless, then the transactions contemplated hereby;
(H) any inability Originators, jointly and severally, shall contribute to litigate any claim against any Obligor in respect of any Receivable the amount paid or payable by such Purchase and Sale Indemnified Party as a result of such Obligor being immune from civil loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of such Originator and commercial law and suit its Affiliates on the grounds one hand and such Purchase and Sale Indemnified Party on the other hand in the matters contemplated by this Agreement as well as the relative fault of sovereignty or otherwise from any legal action, suit or proceeding;
(I) any Amortization Event described in Section 5.1(d);
(J) any failure to vest such Originator and maintain vested in Buyer, or to transfer to Buyer, legal its Affiliates and equitable title to, such Purchase and ownership of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim;
(K) 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 Sale Indemnified Party with respect to such loss, claim, damage or liability and any Receivableother relevant equitable considerations. The reimbursement, indemnity and contribution obligations of such Originator under this Section shall be in addition to any liability which such Originator may otherwise have, shall extend upon the Related Security same terms and Collections with respect theretoconditions to Purchase and Sale Indemnified Party, and shall be binding upon and inure to the proceeds benefit of any thereofsuccessors, whether at the time assigns, heirs and personal representatives of such Originator and the Purchase or at any subsequent time;and Sale Indemnified Parties.
(Ld) any action Any indemnification or omission by such Originator which reduces or impairs contribution under this Section shall survive the rights termination of Buyer with respect to any Receivable or the value of any such Receivable; and
(M) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable actionthis Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Quintiles Transnational Holdings Inc.)
Indemnities by Originators. (a) Without limiting any other rights that the Buyer may have hereunder or under applicable lawApplicable Law, each Originator hereby agrees to indemnify Buyer and the Buyer, each of its assigns, officers, directors, agents employees, agents, employees and employees respective assigns, the Administrative Agent, each Credit Party and each Affected Person (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, claims, losses, claims, taxesjudgments, liabilities, costs, penalties and related 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”Attorney Costs) awarded against or incurred by any of them arising out of of, relating to or as a result of this Agreement or the acquisition, either directly or indirectly, by Buyer of an interest in the Receivables, excluding, howeverconnection with:
(i) Indemnified Amounts the transfer by such Originator of any interest in any Pool Receivable originated by such Originator or Related Right other than the transfer of any such Pool Receivable and Related Security to the extent a final judgment Buyer pursuant to this Agreement and the grant of a court of competent jurisdiction holds that such Indemnified Amounts resulted from bad faith, gross negligence or willful misconduct on security interest to the part of the Indemnified Party seeking indemnification;Buyer pursuant to this Agreement
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvencyany representation, bankruptcy warranty or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States statement made or 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 such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(A) any representation or warranty deemed made by such Originator (or any officers of any such Originatorits respective officers) under or in connection with this Agreement, any of the other Transaction Document Documents, any Information Package, any Interim Report or any other information or report delivered by any or on behalf of such Person Originator pursuant hereto or thereto, which shall have been false untrue or incorrect when made or deemed made;
(Biii) the failure by such Originator to comply with the terms of any applicable law, rule Transaction Document or regulation with any Applicable Law with respect to any Pool Receivable originated by such Originator or the related Contract; or the failure of any Pool Receivable originated by such Originator or the related Contract related theretoto conform to any such Applicable Law;
(iv) the lack of an enforceable ownership interest, or a first priority perfected lien, in the nonconformity Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Receivable or Contract included therein with any such applicable lawAdverse Claim;
(v) the failure to have filed, rule or regulation or any failure delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of such Originator to keep any applicable jurisdiction or perform any of its obligations, express or implied, other Applicable Laws with respect to any ContractPool Receivable originated by such Originator or the Related Rights;
(Cvi) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Pool Receivable originated by such Originator (including 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 any other claim resulting from or relating to collection activities with respect to such Pool Receivable;
(vii) any failure of such Originator to perform any its duties, covenants duties or other obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables originated by such Originator or to timely and fully comply with the Credit and Collection Policy in regard to each such Pool Receivable;
(viii) any product liability environmental or other suit or claim arising out of or in connection with any Pool Receivable or other merchandise, goods or services which are the subject of or related to any Receivable generated by such Originator;
(ix) the commingling by or on behalf of such Originator of Collections of Pool Receivables at any time with other funds;
(x) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or in respect of any Pool Receivable originated by such Originator or any Related Rights;
(xi) any failure of such Originator to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(Dxii) any products liabilitysetoff with respect to any Pool Receivable originated by such Originator;
(xiii) any claim brought by any Person other than a Purchase and Sale Indemnified Party arising from any activity by such Originator in servicing, personal liability administering or damage suit, or similar claim arising out of or in connection with merchandise, insurance or services that are the subject of collecting any Contract or any Pool Receivable;
(Exiv) the failure by such Originator to pay when due any taxes, including, without limitation, sales, excise or personal property taxes;
(xv) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Pool Receivable originated by such Originator (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 any other claim resulting from the sale of goods or the merchandise or service rendering of services related to such Pool Receivable or the furnishing or failure to furnish any such merchandise goods or services;services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness; or
(F) the commingling of Collections of Receivables at any time with other funds;
(Gxvi) any investigationtax or governmental fee or charge, litigation all interest and penalties thereon or proceeding related with respect thereto, and all reasonable out-of-pocket costs and expenses, including without limitation Attorney Costs in defending against the same, which are required to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use be paid by reason of the proceeds of the Purchase, the purchase or ownership of the Receivables generated by such Originator or any other investigation, litigation or proceeding relating Related Rights connected with any such Receivables. provided that such indemnity shall not be available to such Originator in which any Purchase and Sale Indemnified Party becomes involved as to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a result court of any competent jurisdiction in a final judgment to have resulted from the gross negligence or willful misconduct of the transactions contemplated hereby;Administrative Agent, a Credit Party or any Affected Person or (y) constitute recourse with respect to a Pool Receivable by reason of the bankruptcy or insolvency, bankruptcy, lack of creditworthiness or other financial inability to pay of the related Obligor.
(Hb) Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in clauses (ii), (iii), (vii) and (xi) of this Article IX, any inability representation, warranty or covenant qualified by the occurrence or non- occurrence of a material adverse effect or similar concepts of materiality shall be deemed to litigate be not so qualified.
(c) If for any claim against reason the foregoing indemnification is unavailable to any Obligor in respect of any Receivable Purchase and Sale Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party as a result of such Obligor being immune from civil loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of such Originator and commercial law and suit its Affiliates (excluding the Buyer) on the grounds one hand and such Purchase and Sale Indemnified Party on the other hand in the matters contemplated by this Agreement as well as the relative fault of sovereignty or otherwise from any legal action, suit or proceeding;
such Originator and its Affiliates (Iexcluding the Buyer) any Amortization Event described in Section 5.1(d);
(J) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal such Purchase and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim;
(K) 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 Sale Indemnified Party with respect to such loss, claim, damage or liability and any Receivableother relevant equitable considerations. The reimbursement, indemnity and contribution obligations of such Originator under this Section shall be in addition to any liability which such Originator may otherwise have, shall extend upon the Related Security same terms and Collections with respect theretoconditions to Purchase and Sale Indemnified Party, and shall be binding upon and inure to the proceeds benefit of any thereofsuccessors, whether at the time assigns, heirs and personal representatives of such Originator and the Purchase or at any subsequent time;and Sale Indemnified Parties.
(Ld) any action Any indemnification or omission by such Originator which reduces or impairs contribution under this Section shall survive the rights termination of Buyer with respect to any Receivable or the value of any such Receivable; and
(M) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable actionthis Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of BuyerBuyer 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 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the United States or the any 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 Characterizationcharacterization for income tax purposes of the acquisition, either directly or indirectly, by the Lender, any Committed Bank or any Liquidity Bank of an interest in the Receivables under the Credit Agreement; provided, however, that nothing contained in this sentence shall limit the liability of such any Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such but subject in each case to clauses (a), (b) and (c) above, each Originator shall indemnify Buyer for Indemnified Amounts (includingin excess of any Purchase Price Credit received by the Buyer with respect thereto, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with any Purchase Report, this Agreement, any other Transaction Document or any other information or report delivered by any 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;
(Bii) the failure by such 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 related thereto included therein with any such applicable law, rule or regulation or any failure of such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(Div) any products liability, personal liability 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;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(Fvi) the commingling of Collections of Receivables at any time with other 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 the PurchasePurchase hereunder, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated 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;
(Iix) any Amortization Termination Event described in Section 5.1(d);
(Jx) 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;
(Kxi) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents with respect to such Originator or Borrower 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 the Purchase or at any subsequent time;
(Lxii) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and;
(Mxiii) any attempt by any Person to void any the Purchase hereunder under statutory provisions or common law or equitable action; and
(xiv) the failure of any Receivable reflected as an Eligible Receivable in any Purchase Report to be an Eligible Receivable on the date of such Purchase Report.
Appears in 1 contract
Samples: Receivables Sale Agreement (Louisiana Pacific Corp)
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator Originator, jointly and severally, hereby agrees to indemnify Buyer and its assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of 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 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States or States, by the jurisdiction in which such Indemnified Party’s principal executive office is located, or by any other jurisdiction where such Indemnified Party has established a taxable nexus other than in connection with the transactions contemplated by this 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, but not including any such taxes resulting from the adoption after the date hereof of any law or any amendment or change in the interpretation of any existing or future law that subjects such Indemnified Party to taxes that would not be imposed by any law or the interpretation thereof existing on the date hereof (except for changes in the rate of such taxes); provided, however, that nothing contained in this sentence shall limit the liability of such Originator Originators or limit the recourse of Buyer to such Originator Originators for amounts otherwise specifically provided to be paid by such Originator Originators under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such each Originator shall shall, jointly and severally, indemnify Buyer the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by any such Person Originator pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(Bii) the failure by such Originator Originator, to comply with any applicable law, rule or regulation with respect to any Receivable Receivable, Contract or Contract Invoice related thereto, or the nonconformity of any Receivable Receivable, Contract or Contract Invoice included therein with any such applicable law, rule or regulation or any failure of such Originator to keep or perform any of its obligations, express or implied, with respect to any ContractContract or Invoice;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(Div) any products liability, personal liability or damage suit, or similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract Contract, Invoice or any Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy or similar proceeding of an the Obligor) of an the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Invoice or Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms, other than as a result of bankruptcy or other similar proceeding), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(Fvi) the commingling of Collections of Receivables at any time with other 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 the a Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated 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;
(Iix) any Amortization Termination Event described in Section 5.1(d6.1(d);
(Jx) 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;
(Kxi) 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 the Purchase or at any subsequent timelaws;
(Lxii) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and
(Mxiii) any attempt by any Person to void any the Purchase (or contribution) hereunder under statutory provisions or common law or equitable action.
Appears in 1 contract
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of BuyerBuyer 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 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the United States or 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 Characterizationcharacterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests under the Receivables 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 such any Originator or limit the recourse of Buyer to such Originator the Originators for amounts otherwise specifically provided to be paid by such Originator the Originators under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such each Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(A1) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by any such Person Originator pursuant hereto or thereto, which thereto that shall have been false or incorrect when made or deemed made;
(B2) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(C3) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(D4) any products liability, personal liability 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;
(E5) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(F6) the commingling of Collections of Receivables at any time with other funds;
(G7) 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 the Purchaseany Purchase Price payment, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(H) 8) 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;
(I9) any Amortization Termination Event described in Section 5.1(d);
(J10) 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 such 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;
(K11) 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 the initial Purchase or at any subsequent time;
(L12) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; andor
(M13) any attempt by any Person (other than the Purchaser) to void any Purchase (whether made hereunder or under the Prior Sale Agreement) under statutory provisions or common law or equitable action.
Appears in 1 contract
Samples: Receivables Sale Agreement (American Commercial Lines LLC)
Indemnities by Originators. (a) Without limiting any other rights that the Buyer may have hereunder or under applicable lawApplicable Law, each Originator hereby agrees to indemnify Buyer and the Buyer, each of its assigns, officers, directors, agents employees, agents, employees and employees respective assigns, the Administrative Agent, each Credit Party and each Affected Person (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, claims, losses, claims, taxesjudgments, liabilities, costs, penalties and related 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”Attorney Costs) awarded against or incurred by any of them arising out of of, relating to or as a result of this Agreement or the acquisition, either directly or indirectly, by Buyer of an interest in the Receivables, excluding, howeverconnection with:
(i) Indemnified Amounts the transfer by such Originator of any interest in any Pool Receivable originated by such Originator or Related Right other than the transfer of any such Pool Receivable and Related Security to the extent Buyer pursuant to this Agreement and the grant of an hypothec and a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from bad faith, gross negligence or willful misconduct on security interest to the part of the Indemnified Party seeking indemnification;Buyer pursuant to this Agreement
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvencyany representation, bankruptcy warranty or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States statement made or 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 such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(A) any representation or warranty deemed made by such Originator (or any officers of any such Originatorits respective officers) under or in connection with this Agreement, any of the other Transaction Document Documents, any Information Package, any Interim Report or any other information or report delivered by any or on behalf of such Person Originator pursuant hereto or thereto, which shall have been false untrue or incorrect when made or deemed made;
(Biii) the failure by such Originator to comply with the terms of any applicable law, rule Transaction Document or regulation with any Applicable Law with respect to any Pool Receivable originated by such Originator or the related Contract; or the failure of any Pool Receivable originated by such Originator or the related Contract related theretoto conform to any such Applicable Law;
(iv) the lack of an enforceable first priority perfected ownership interest, in the Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(v) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements, assignments or other similar instruments or documents under the nonconformity PPSA of any Receivable applicable jurisdiction or Contract included therein with any such applicable law, rule or regulation or any failure of such Originator to keep or perform any of its obligations, express or implied, other Applicable Laws with respect to any ContractPool Receivable originated by such Originator or the Related Rights;
(Cvi) any dispute, claim, offset, right of compensation or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Pool Receivable originated by such Originator (including 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 any other claim resulting from or relating to collection activities with respect to such Pool Receivable;
(vii) any failure of such Originator to perform any its duties, covenants duties or other obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables originated by such Originator or to timely and fully comply with the Credit and Collection Policy in regard to each such Pool Receivable;
(viii) any product liability environmental or other suit or claim arising out of or in connection with any Pool Receivable or other merchandise, goods or services which are the subject of or related to any Receivable generated by such Originator;
(ix) the commingling by or on behalf of such Originator of Collections of Pool Receivables at any time with other funds;
(x) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or in respect of any Pool Receivable originated by such Originator or any Related Rights;
(xi) any failure of such Originator to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(Dxii) any products liabilitysetoff or exercise of a right of compensation with respect to any Pool Receivable originated by such Originator;
(xiii) any claim brought by any Person other than a Purchase and Sale Indemnified Party arising from any activity by such Originator in servicing, personal liability administering or damage suit, or similar claim arising out of or in connection with merchandise, insurance or services that are the subject of collecting any Contract or any Pool Receivable;
(Exiv) the failure by such Originator to pay when due any taxes, including, without limitation, Sales Taxes, excise or personal property taxes;
(xv) any dispute, claim, offset offset, right of compensation or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Pool Receivable originated by such Originator (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 any other claim resulting from the sale of goods or the merchandise or service rendering of services related to such Pool Receivable or the furnishing or failure to furnish any such merchandise goods or services;services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness; or
(F) the commingling of Collections of Receivables at any time with other funds;
(Gxvi) any investigationtax or governmental fee or charge, litigation all interest and penalties thereon or proceeding related with respect thereto, and all reasonable out-of-pocket costs and expenses, including without limitation Attorney Costs in defending against the same, which are required to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use be paid by reason of the proceeds of the Purchase, the purchase or ownership of the Receivables generated by such Originator or any other investigation, litigation or proceeding relating Related Rights connected with any such Receivables. provided that such indemnity shall not be available to such Originator in which any Purchase and Sale Indemnified Party becomes involved as to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a result court of any competent jurisdiction in a final judgment to have resulted from the gross or intentional fault of the transactions contemplated hereby;Administrative Agent, a Credit Party or any Affected Person or (y) constitute recourse with respect to a Pool Receivable by reason of the bankruptcy or insolvency, bankruptcy, lack of creditworthiness or other financial inability to pay of the related Obligor.
(Hb) Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in clauses (ii), (iii), (vii) and (xi) of this ARTICLE IX, any inability representation, warranty or covenant qualified by the occurrence or non- occurrence of a material adverse effect or similar concepts of materiality shall be deemed to litigate be not so qualified.
(c) If for any claim against reason the foregoing indemnification is unavailable to any Obligor in respect of any Receivable Purchase and Sale Indemnified Party or insufficient to hold it harmless, then the Originators, solidarily (jointly and severally) shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party as a result of such Obligor being immune from civil loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of such Originator and commercial law and suit its Affiliates (excluding the Buyer) on the grounds one hand and such Purchase and Sale Indemnified Party on the other hand in the matters contemplated by this Agreement as well as the relative fault of sovereignty or otherwise from any legal action, suit or proceeding;
such Originator and its Affiliates (Iexcluding the Buyer) any Amortization Event described in Section 5.1(d);
(J) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal such Purchase and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim;
(K) 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 Sale Indemnified Party with respect to such loss, claim, damage or liability and any Receivableother relevant equitable considerations. The reimbursement, indemnity and contribution obligations of such Originator under this Section shall be in addition to any liability which such Originator may otherwise have, shall extend upon the Related Security same terms and Collections with respect theretoconditions to Purchase and Sale Indemnified Party, and shall be binding upon and inure to the proceeds benefit of any thereofsuccessors, whether at the time assigns, heirs and personal representatives of such Originator and the Purchase or at any subsequent time;and Sale Indemnified Parties.
(Ld) any action Any indemnification or omission by such Originator which reduces or impairs contribution under this Section shall survive the rights termination of Buyer with respect to any Receivable or the value of any such Receivable; and
(M) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable actionthis Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (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 BuyerBuyer 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 of an interest in the ReceivablesReceivables originated by such 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the United States States, the Indemnified Party’s jurisdiction of organization (or, in the case of an individual, primary residence) or the 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; provided, however, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such but subject to the exclusions in clauses (a), (b) and (c) above, each Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivablesReceivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originatorits officers) under or in connection with this Agreement, any other Transaction Document to which such Originator is a party or any other information or report 765800784 14448925 20 4871-5521-5052, v.3 required to be delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(Bii) the failure by such 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 such any Originator to keep or perform any of its obligations, express or implied, with respect to any such Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction DocumentDocument to which it is a party;
(Div) any products liability, personal liability 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 ReceivableReceivable originated by such Originator;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable originated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise goods or service services related to such Receivable or the furnishing or failure to furnish such merchandise goods or services;
(Fvi) the commingling of Collections of such Receivables at any time with other fundsfunds (including Subject Collections);
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction DocumentDocument to which such Originator is a party, the transactions contemplated hereby, the use by such Originator of the proceeds of the Purchase, the ownership of the Receivables any purchase from it hereunder or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(Hviii) 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;
(IA) failure of such Originator generally to pay its debts as such debts become due or admission by such Originator in writing of its inability to pay its debts generally or any Amortization Event described making by such Originator of a general assignment for the benefit of creditors; or (B) the institution of any proceeding by or against such 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 765800784 14448925 21 4871-5521-5052, v.3 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 such Originator of any corporate action to authorize any of the actions set forth in Section 5.1(dclauses (A) or (B) above in this clause (ix);
(Jx) 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 such Originator and the associated Related Security and the Collections, free and clear of any Adverse ClaimClaim (except as created by the Transaction Documents);
(Kxi) 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 the Purchase sale to Buyer or at any subsequent time;; and
(Lxii) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and
(M) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action.
Appears in 1 contract
Samples: Receivables Sale Agreement (RPM International Inc/De/)
Indemnities by Originators. (a) Without limiting any other rights that the Buyer may have hereunder or under applicable lawApplicable Law, each Originator hereby agrees to indemnify Buyer and the Buyer, each of its assigns, officers, directors, agents employees, agents, employees and employees respective assigns, the Administrative Agent, each Credit Party and each Affected Person (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, claims, losses, claims, taxesjudgments, liabilities, costs, penalties and related 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”Attorney Costs) awarded against or incurred by any of them arising out of of, relating to or as a result of this Agreement or the acquisition, either directly or indirectly, by Buyer of an interest in the Receivables, excluding, howeverconnection with:
(i) Indemnified Amounts the transfer by such Originator of any interest in any Pool Receivable originated by such Originator or Related Right other than the transfer of any such Pool Receivable and Related Security to the extent a final judgment Buyer pursuant to this Agreement and the grant of a court of competent jurisdiction holds that such Indemnified Amounts resulted from bad faith, gross negligence or willful misconduct on security interest to the part of the Indemnified Party seeking indemnification;Buyer pursuant to this Agreement
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvencyany representation, bankruptcy warranty or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States statement made or 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 such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(A) any representation or warranty deemed made by such Originator (or any officers of any such Originatorits respective officers) under or in connection with this Agreement, any of the other UK Transaction Document Documents or the Transaction Documents, any Information Package, any Interim Report or any other information or report delivered by any or on behalf of such Person Originator pursuant hereto or thereto, which shall have been false untrue or incorrect when made or deemed made;
(Biii) the failure by such Originator to comply with the terms of any applicable law, rule UK Transaction Document to which it is party or regulation with any Applicable Law with respect to any Pool Receivable originated by such Originator or the related Contract; or the failure of any Pool Receivable originated by such Originator or the related Contract to conform to any such Applicable Law;
(iv) the lack of an enforceable ownership interest in the Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Pool Receivable originated by such Originator (including a defense based on such Pool Receivable or the related Contract related theretonot being a legal, or the nonconformity valid and binding obligation of any Receivable or Contract included therein such Obligor enforceable against it in accordance with any such applicable law, rule or regulation its terms) or any failure of such Originator other claim resulting from or relating to keep or perform any of its obligations, express or implied, collection activities with respect to any Contractsuch Pool Receivable;
(Cvi) any failure of such Originator to perform any its duties, covenants duties or other obligations in accordance with the provisions hereof and of this Agreement each other UK Transaction Document related to Pool Receivables originated by such Originator or any other Transaction Documentto timely and fully comply with the Credit and Collection Policy in regard to each such Pool Receivable;
(Dvii) any products liability, personal product liability environmental or damage suit, other suit or similar claim arising out of or in connection with any Pool Receivable or other merchandise, insurance goods or services that which are the subject of or related to any Contract Receivable generated by such Originator;
(viii) the commingling by or on behalf of such Originator of Collections of Pool Receivables at any time with other funds;
(ix) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other UK Transaction Document or the Transaction Documents or in respect of any Pool Receivable originated by such Originator or any Related Rights;
(x) any failure of such Originator to comply with its covenants, obligations and agreements contained in this Agreement or any other UK Transaction Document to which it is party;
(xi) any setoff with respect to any Pool Receivable originated by such Originator;
(xii) any claim brought by any Person other than a Purchase and Sale Indemnified Party arising from any activity by such Originator in servicing, administering or collecting any Pool Receivable;
(Exiii) the failure by such Originator to pay when due any taxes, including, without limitation, sales, excise or personal property taxes;
(xiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Pool Receivable originated by such Originator (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 any other claim resulting from the sale of goods or the merchandise or service rendering of services related to such Pool Receivable or the furnishing or failure to furnish any such merchandise goods or services;
(F) the commingling 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 the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(H) 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;
(I) any Amortization Event described in Section 5.1(d);
(J) 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;
(K) the failure to have filed, or any delay in filing, financing statements services or other similar instruments claim or documents under defense not arising from the UCC financial inability of any applicable jurisdiction Obligor to pay undisputed indebtedness; or
(xv) any tax or other applicable laws with respect to any Receivablegovernmental fee or charge, the Related Security all interest and Collections penalties thereon or with respect thereto, and all reasonable out-of-pocket costs and expenses, including without limitation Attorney Costs in defending against the proceeds of any thereofsame, whether at the time which are required to be paid by reason of the Purchase purchase or at any subsequent time;
(L) any action or omission ownership of the Receivables generated by such Originator which reduces or impairs any Related Rights connected with any such Receivables. provided that such indemnity shall not be available to any Purchase and Sale Indemnified Party to the rights extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of Buyer competent jurisdiction in a final judgment to have resulted from the gross negligence or wilful default of the Administrative Agent, a Credit Party or any Affected Person or (y) constitute recourse with respect to any a Pool Receivable by reason of the bankruptcy or insolvency, bankruptcy, lack of creditworthiness or other financial inability to pay of the value of any such Receivable; andrelated Obligor.
(Mb) Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in clauses (ii), (iii), (vii) and (xi) of this Article IX, any attempt representation, warranty or covenant qualified by any Person the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be deemed to void any Purchase hereunder under statutory provisions or common law or equitable actionbe not so qualified.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Indemnities by Originators. Without limiting any other rights that Buyer Transferee may have hereunder or under applicable lawany Requirement of Law, each Originator hereby agrees to indemnify Buyer (and pay upon demand to) Transferee and its assigns, assigns and their respective officers, directors, agents and employees (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) fees, disbursements and disbursements other charges (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 of an interest matters set forth in the Receivablesclauses (i) through (xv) below, excluding, however:
(ia) Indemnified Amounts to the extent a final final, non-appealable judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted primarily from bad faith, gross negligence or willful misconduct on the part of the any Indemnified Party seeking indemnificationor any of its affiliates or any of the officers, directors, employees, controlling persons or members of any of the foregoing;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Transferred Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the United States or 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, imposed by the United States, the Indemnified Party’s jurisdiction of organization or the jurisdiction in which its principal office is located (or in the case of an individual, primary residence), or any political subdivision of any thereof, or any other jurisdiction with which such Indemnified Party to the extent that the computation of such taxes is consistent has (other than in connection with the Intended Characterizationtransactions contemplated hereby) a present or former connection; provided, however, that nothing contained in this sentence shall limit the liability of such any Originator or limit the recourse of Buyer Transferee to such any Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnificationSubject in each case to clauses (a), such (b) and (c) above, an Originator shall indemnify Buyer Transferee and its assigns for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with any Transfer Report, this Agreement, any other Transaction Document or any other information or report delivered by any such Person Originator pursuant hereto or thereto, which thereto that shall have been false or incorrect when made or deemed mademade (unless, in the case of any such representation or warranty made in respect of a Transferred Receivable, Transferee has received a Transfer Consideration Indemnification Payment in respect of clause (b) of Section 2.04 hereof with respect thereto);
(Bii) the failure by such Originator to comply with any applicable law, rule or regulation Requirement of Law with respect to any Transferred Receivable originated by such Originator or Contract related thereto, or the nonconformity of any such Transferred Receivable or related Contract included therein with any such applicable law, rule or regulation Requirement of Law or any failure of such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction DocumentAgreement;
(Div) any products liability, personal liability 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 ReceivableTransferred Receivable originated by such Originator;
(Ev) any dispute, claim, offset or defense (other than a discharge in bankruptcy of an the related Obligor) of an the Obligor to the payment of any Transferred Receivable originated by such Originator (including, without limitation, a defense based on such Transferred Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service services related to such Transferred Receivable or the furnishing or failure to furnish such merchandise or services;
(Fvi) the commingling of Collections of Transferred Receivables at any time with other funds;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Loan Document, the transactions contemplated hereby, the use of the proceeds of the Purchasetransfers hereunder, the ownership of the Transferred Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(Hviii) any inability to litigate any claim against any Obligor in respect of any Transferred Receivable originated by such 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;
(Iix) any Amortization Termination Event described in Section 5.1(d)7.01(f) (g) or (h) with respect to such Originator;
(Jx) any failure to vest and maintain vested in BuyerTransferee, or to transfer to BuyerTransferee, legal and equitable title to, and ownership of, the ReceivablesTransferred Receivables originated by such Originator and the related Collections, and all of such Originator’s right, title and interest in the Related Security associated with such Transferred Receivable and the CollectionsCollections thereof, in each case, free and clear of any Adverse ClaimLien except for Liens in favor of Transferee and its assigns;
(Kxi) 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 ReceivableTransferred Receivable originated by such Originator, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of the Purchase transfer or at any subsequent time;
(Lxii) any action or omission by such Originator which reduces or impairs the rights of Buyer Transferee (or its assigns) with respect to any Transferred Receivable originated by such Originator or the value of any such Transferred Receivable; and;
(Mxiii) any attempt by any Person to void any Purchase sale or contribution hereunder under statutory provisions or common law or equitable action;
(xiv) the failure of the information specified in any Transfer Report regarding a Transferred Receivable to have been accurate in all material respects as of the date of its transfer to Transferee; and
(xv) the failure of such Originator duly and punctually to pay and perform its indemnity or reimbursement obligations to providers of surety bonds guaranteeing the payment by such Originator of U.S. Customs duties.
Appears in 1 contract
Samples: Receivables Transfer Agreement (Basic Energy Services Inc)
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of BuyerBuyer 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 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States or 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; provided, however, that nothing contained in this sentence shall limit the liability of such any Originator or limit the recourse of Buyer to such any Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such Originator shall indemnify Buyer each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such OriginatorOriginator of Performance Guarantor) relating to or resulting from:
(A) any representation or warranty made by such Originator (or any officers of any such Originator) 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;
(B) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(C) any failure of such 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, personal liability 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;
(E) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligor) of an Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(F) the commingling 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 the any Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(H) 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;
(I) any Amortization Termination Event described in Section 5.1(d);
(J) 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;
(K) in the case of Xxxxxxxxx, any failure of Xxxxxxxxx to acquire and maintain legal and equitable title to, and ownership of any Receivable transferred to it under the Sale and Assignment and the Related Security and Collections with respect thereto from LPAC Corp., free and clear of any Adverse Claim (other than as created hereunder); or any failure of Xxxxxxxxx to give reasonably equivalent value to LPAC Corp. under the Sale and Assignment in consideration of the transfer by LPAC Corp. of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(L) 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 the any Purchase or at any subsequent time;
(LM) any action or omission by such Originator which reduces or impairs the rights of Buyer or its assigns with respect to any Receivable or the value of any such Receivable; and
(MN) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action.
Appears in 1 contract
Samples: Receivables Sale Agreement (Lennox International Inc)
Indemnities by Originators. (a) Without limiting any -------------------------- other rights that Buyer may have hereunder or under applicable law, each Originator Originator, jointly and severally, hereby agrees to indemnify Buyer Buyer, the Collateral Agent, each Managing Agent and its each Purchaser, as Buyer's assignees, and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, ----------------- taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of 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 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States or 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 Characterizationany Excluded Taxes; provided, however, that nothing contained in this sentence shall limit the --------- -------- liability of such any Originator or limit the recourse of Buyer to such any Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such each Originator shall shall, jointly and severally, indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by any such Person Originator pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(Bii) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(Div) any products liability, personal liability or damage suit, or similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any ReceivableContract;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(Fvi) the commingling of Collections of Receivables at any time with other 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 the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated 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;
(Iix) any Amortization Event described in Section 5.1(d); --------------
(x) [Reserved];
(Jxi) 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;
(Kxii) 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 the Purchase or at any subsequent time;
(Lxiii) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and
(Mxiv) any attempt by any Person (other than a Purchaser) to void any the Purchase hereunder under statutory provisions or common law or equitable action.
(b) Notwithstanding anything to the contrary in this Agreement, solely for the purposes of determining Indemnified Amounts owing under this Section 6.1, any representation, warranty or covenant qualified by materiality ----------- or the occurrence of a Material Adverse Effect shall not be so qualified.
Appears in 1 contract
Indemnities by Originators. Without limiting any other -------------------------- rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxesOther Taxes, Indemnified Taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of BuyerBuyer 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 of an interest in the ReceivablesReceivables originated by such 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables originated by such Originator that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the United States or 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 CharacterizationExcluded Taxes; provided, however, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such but subject in each case to clauses (a), (b) and (c) above, each Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with any Purchase Report, this Agreement, any other Transaction Document or any other information or report delivered by any 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;
(Bii) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(Div) any products liability, personal liability 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;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(Fvi) the commingling of Collections of Receivables at any time with other funds;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the such Originator's use of the proceeds of the PurchasePurchase from it hereunder, the ownership of the Receivables originated by such Originator or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated 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;
(Iix) any Amortization Event described in Section 5.1(d)of Bankruptcy with respect to any Originator;
(Jx) 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 such 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;
(Kxi) 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 such Originator, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of the Purchase from such Originator hereunder or at any subsequent time;
(Lxii) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and;
(Mxiii) any attempt by any Person to void any the Purchase from such Originator hereunder under statutory provisions or common law or equitable action; and
(xiv) the failure of any Receivable reflected as an Eligible Receivable on any Purchase Report prepared by such Originator to be an Eligible Receivable at the time acquired by Buyer.
Appears in 1 contract
Indemnities by Originators. (a) Without limiting any other rights that the Buyer or the Agent (as the Buyer’s assignee) may have hereunder or under applicable law, and except to the extent of matters addressed in accordance with Section 4.5, each Originator hereby agrees to indemnify Buyer the Buyer, the Agent (as the Buyer’s assignee) and its assignseach Lender (as the principals for whom the Agent is acting as agent), and each of their respective officers, directors, employees and agents and employees (each of the foregoing Persons being individually called an “RPSA Indemnified Party”), forthwith on demand by the Borrower (in the case of the Buyer and its officers, directors, employees and agents) or the Agent (as to each other RPSA Indemnified Party), from and against any and all damages, claims, losses, claims, taxesjudgments, liabilities, costs, penalties and related 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”fees) awarded against or incurred by any of them arising out of of, relating to or as a result of this Agreement or the acquisition, either directly or indirectly, by Buyer of an interest in the Receivables, excluding, howeverconnection with:
(i) Indemnified Amounts the transfer by such Originator of any interest in any Receivable sold or otherwise conveyed (or purported to be sold or otherwise conveyed) by such Originator hereunder (other than 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 indemnificationtransfer thereof hereunder);
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvencyany representation, bankruptcy warranty or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States statement made or 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 such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(A) any representation or warranty deemed made by such Originator (or any officers of any such Originatorits respective officers) 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, Agreement which shall have been false untrue or incorrect when made or deemed made;
(Biii) the failure by such Originator to comply with the terms of any Basic Document to which such Originator is a party or with any applicable law, rule or regulation law with respect to any Receivable sold or Contract related thereto, otherwise conveyed (or purported to be sold or otherwise conveyed) by such Originator hereunder or the nonconformity related Contract; or the failure of any Receivable sold or Contract included therein with otherwise conveyed (or purported to be sold or otherwise conveyed) by such Originator hereunder (or the related Contract) to conform to any such applicable law;
(iv) the lack of an enforceable ownership interest, rule or regulation a first priority perfected lien, in the Receivables (and all Related Security) sold or otherwise conveyed (or purported to be sold or otherwise conveyed) by such Originator hereunder against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim (other than Permitted Liens);
(v) the failure to have filed, or any failure delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of such Originator to keep any applicable jurisdiction or perform any of its obligations, express or implied, other applicable laws with respect to any ContractReceivable sold or otherwise conveyed (or purported to be sold or otherwise conveyed) by such Originator hereunder;
(C) any failure of such 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, personal liability or damage suit, or similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(Evi) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an the Obligor to the payment of any Receivable sold or otherwise conveyed (including, without limitation, or purported to be sold or otherwise conveyed) by such Originator hereunder (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 such Obligor in accordance with its terms), ) or any other claim resulting from the sale of the merchandise or service related relating to collection activities with respect to such Receivable or the furnishing or failure to furnish such merchandise or servicesReceivable;
(Fvii) any failure of such Originator (A) to perform any its duties or obligations in accordance with the provisions hereof and of each other Basic Document to which such Originator is a party and related to Receivables sold or otherwise conveyed (or purported to be sold or otherwise conveyed) by such Originator hereunder or (B) to timely and fully comply with the Credit and Collection Policies and Procedures in regard to each such Receivable;
(viii) any product liability, environmental or other suit or claim arising out of or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Receivable sold or otherwise conveyed (or purported to be sold or otherwise conveyed) by such Originator hereunder;
(ix) except if (but only to the extent) otherwise permitted under the RLSA, the commingling by or on behalf of such Originator of Collections of Receivables sold or otherwise conveyed (or purported to be sold or otherwise conveyed) by such Originator hereunder at any time with other funds;
(Gx) any investigation, litigation or proceeding (actual or threatened) by or on behalf of or with respect to such Originator and related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating Basic Document to which such Originator in which any Indemnified Party becomes involved as is a result of any of the transactions contemplated hereby;
(H) any inability to litigate any claim against any Obligor party or 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 sold or otherwise from conveyed (or purported to be sold or otherwise conveyed) by such Originator hereunder (or any legal action, suit or proceeding;
(I) any Amortization Event described in Section 5.1(dRelated Rights);
(Jxi) 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 set-off by any Adverse Claim;
Obligor (K) 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 Affiliate thereof) with respect to any ReceivableReceivable sold or otherwise conveyed (or purported to be sold or otherwise conveyed) by such Originator hereunder;
(xii) any claim brought by any Person other than an RPSA Indemnified Party arising from any activity by such Originator;
(xiii) the failure by such Originator to pay when due any taxes, the Related Security including sales, excise or personal property taxes; or
(xiv) any tax or governmental fee or charge, all interest and Collections penalties thereon or with respect thereto, and the proceeds of all reasonable out-of-pocket costs and expenses, including reasonable attorneys’ fees, in defending against all or any thereof, whether at the time part of the Purchase foregoing, which are required to be paid by reason of the purchase or at any subsequent time;
ownership of the Receivables sold or otherwise conveyed (Lor purported to be sold or otherwise conveyed) any action or omission by such Originator which reduces hereunder (or impairs any Related Rights); provided that such indemnity shall not be available to any RPSA Indemnified Party to the rights extent that such losses, claims, damages, liabilities or related expenses: (x) are determined by a court of Buyer competent jurisdiction in a final judgment to have resulted from the gross negligence or willful misconduct of (i) such RPSA Indemnified Party, (ii) the Agent (but only in the case of any RPSA Indemnified Party claiming through the Agent), or (iii) any Lender (but only in the case of any RPSA Indemnified Party claiming through such Lender); or (y) constitute recourse with respect to any a Receivable by reason of the bankruptcy or insolvency, lack of creditworthiness or other financial inability to pay of the value of any such Receivable; andrelated Obligor.
(Mb) Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in clauses (ii), (iii) and (vii) of Subsection (a) above, any attempt representation, warranty or covenant qualified by any Person the occurrence or non-occurrence of a material adverse effect (or similar concepts of materiality) shall be deemed to void any Purchase hereunder under statutory provisions or common law or equitable actionbe not so qualified.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of 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 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the United States States, the Indemnified Party’s jurisdiction of organization (or in the case of an individual, primary resident) 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 transaction contemplated hereby, 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 Characterizationcharacterization for income tax purposes of the acquisition by TPF of Receivable Interests under the Purchase Agreement as a loan or loans by TPF 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 such any Originator or limit the recourse of Buyer to such any Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such but subject in each case to clauses (a), (b) and (c) above, an Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with any Purchase Report, this Agreement, any other Transaction Document or any other information or report delivered by any 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;
(Bii) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(Div) any products liability, personal liability 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;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(Fvi) the commingling of Collections of Receivables at any time with other 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 the PurchasePurchase hereunder, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated 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;
(Iix) any Amortization Termination Event described in Section 5.1(d);
(Jx) 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 such Originator’s right, title and interest in the Related Security and associated with the CollectionsReceivables, in each case, free and clear of any Adverse ClaimClaim except for Adverse Claims in favor of the Buyer and its assigns;
(Kxi) 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 the Purchase or at any subsequent time;
(Lxii) any action or omission by such Originator which reduces or impairs the rights of Buyer (or its assigns) with respect to any Receivable or the value of any such Receivable; and;
(Mxiii) any attempt by any Person to void any the Purchase hereunder under statutory provisions or common law or equitable action; and
(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.
Appears in 1 contract
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (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 and actual attorneys’ ' fees (which attorneys may be employees of BuyerBuyer 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 of an interest in the ReceivablesReceivables originated by such Originator, excludingEXCLUDING, howeverHOWEVER:
(ia) 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 indemnificationindemnification provided that such Originator shall not be obligated to indemnify any Indemnified Party under this Section 6.1 in connection with any claim under any cause of action by or against such Indemnified Person with respect to which such Originator is an adverse party and such Originator is the prevailing party with respect to such claim under such cause of action;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables originated by such Originator that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the United States or 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 CharacterizationParty; providedPROVIDED, howeverHOWEVER, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such but subject in each case to clauses (a), (b) and (c) above, each Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with any Purchase Report, this Agreement, any other Transaction Document or any other information or report delivered by any 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;
(Bii) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(Div) any products liability, personal liability 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;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
; (Fvi) the commingling 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 the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(H) 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;
(I) any Amortization Event described in Section 5.1(d);
(J) 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;
(K) 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 the Purchase or at any subsequent time;
(L) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and
(M) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action.
Appears in 1 contract
Indemnities by Originators. (a) Without limiting any other rights that Buyer which Catalog Seller may have hereunder or under applicable law, each Parent Originator hereby agrees to indemnify Buyer Catalog Seller and each of its successors, transferees, participants and assigns, each of their Affiliates, and all officers, directors, shareholders, controlling persons, employees and agents and employees of any of the foregoing (each an “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 (which attorneys may be employees of Buyer) and disbursements (all of the foregoing being collectively referred to as “"Purchase and Sale Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of relating to this Agreement, the Stock Purchase Agreement or the acquisitiontransactions contemplated thereby, either directly or indirectly, by Buyer the ownership or funding of an interest in the Receivablesany Receivable and Related Rights, excluding, however:, all Excluded Amounts.
(ib) Without limiting any other rights which Catalog Seller may have hereunder or under applicable law, each Sub-Originator hereby agrees to indemnify each Purchase and Sale Indemnified Party, forthwith upon demand, from and against any and all Purchase and Sale Indemnified Amounts to the extent a final judgment awarded against or incurred by any 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;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States or the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income them arising out of such Indemnified Party Sub-Originator's failure to the extent that the computation perform its obligations under this Agreement or such Sub-Originator's breach of such taxes is consistent with the Intended Characterization; providedrepresentation or warranty under this Agreement, excluding, however, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(A) any representation or warranty made by such Originator (or any officers of any such Originator) 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;
(B) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(C) any failure of such 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, personal liability or damage suit, or 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 an Obligor) of an Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(F) the commingling 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 the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(H) 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;
(I) any Amortization Event described in Section 5.1(d);
(J) 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;
(K) 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 the Purchase or at any subsequent time;
(L) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and
(M) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable actionall Excluded Amounts.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Charming Shoppes Inc)
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (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 attorneys’ ' fees (which attorneys may be employees of BuyerBuyer 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 relating to the acquisitionTransaction Documents, either directly or indirectlyEXCLUDING, by Buyer of an interest in the Receivables, excluding, howeverHOWEVER:
(ia) 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 indemnificationindemnification or any member of its Group;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables originated by such Originator that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or;
(iiic) taxes imposed on Buyer by the United States or the jurisdiction in which such Indemnified Party’s Buyer's principal executive office is located, on or measured by the overall net income of such Buyer; and
(d) Indemnified Party Amounts that arise from or are attributable to taxes imposed on any of Buyer's assigns or their officers, directors, agents or employees to the extent that the computation of Buyer is not obligated to provide indemnity for such taxes is consistent with to such Indemnified Party (including by paying additional amounts to such Indemnified Party) under the Intended Characterizationterms of any Transaction Document other than this Agreement; providedPROVIDED, howeverHOWEVER, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such but subject in each case to clauses (a), (b) and (c) above, each Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with any Purchase Report, this Agreement, any other Transaction Document or any other information or report delivered by any 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;
(Bii) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(Div) any products liability, personal liability 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;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services; PROVIDED THAT this clause (v) shall not be construed to require indemnity for the uncollectibility of any Receivable for credit-related reasons relating to any Obligor;
(Fvi) the commingling of Collections of Receivables at any time with other funds[reserved];
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the such Originator's use of the proceeds of the PurchasePurchase from it hereunder, the ownership of the Receivables originated by such Originator or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated 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;
(Iix) any Amortization Termination Event described in Section 5.1(d5.1(e) or (k);
(Jx) 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 such 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;
(Kxi) 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 such Originator, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of the Purchase from such Originator hereunder or at any subsequent time;
(Lxii) except as otherwise permitted under the Transaction Documents, any action or omission by such Originator in contravention of the Transaction Documents which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and;
(Mxiii) any attempt by any Person to void any the Purchase from such Originator hereunder under statutory provisions or common law or equitable action; and
(xiv) the failure of any Receivable reflected as an Eligible Receivable on any Purchase Report prepared by such Originator to be an Eligible Receivable at the time acquired by Buyer.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Fisher Scientific International Inc)
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (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 BuyerBuyer 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 of an interest in the ReceivablesReceivables originated by such Originator, excluding, however:, in all of the foregoing cases: 765800784 14448925 20 4871-5521-5052, v.3
(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;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States States, the Indemnified Party’s jurisdiction of organization (or, in the case of an individual, primary residence) or the 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; provided, however, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such but subject to the exclusions in clauses (a), (b) and (c) above, each Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivablesReceivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(A1) any representation or warranty made by such Originator (or any officers of any such Originatorits officers) under or in connection with this Agreement, any other Transaction Document to which such 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;
(B2) the failure by such 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 such any Originator to keep or perform any of its obligations, express or implied, with respect to any such Contract;
(C3) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction DocumentDocument to which it is a party;
(D4) any products liability, personal liability 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 ReceivableReceivable originated by such Originator;
(E5) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable originated by such Originator (including, without limitation, a defense based on 765800784 14448925 21 4871-5521-5052, v.3 such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise goods or service services related to such Receivable or the furnishing or failure to furnish such merchandise goods or services;
(F6) the commingling of Collections of such Receivables at any time with other fundsfunds (including Subject Collections);
(G7) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction DocumentDocument to which such Originator is a party, the transactions contemplated hereby, the use by such Originator of the proceeds of the Purchase, the ownership of the Receivables any purchase from it hereunder or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(H) 8) 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;
(IA) failure of such Originator generally to pay its debts as such debts become due or admission by such Originator in writing of its inability to pay its debts generally or any Amortization Event described making by such Originator of a general assignment for the benefit of creditors; or (B) the institution of any proceeding by or against such 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 such Originator of any corporate action to authorize any of the actions set forth in Section 5.1(dclauses (A) or (B) above in this clause (ix);
(J10) 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 such Originator and the associated Related Security and the Collections, free and clear of any Adverse ClaimClaim (except as created by the Transaction Documents);
(K11) 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 the Purchase sale to Buyer or at any subsequent time;; and 765800784 14448925 22 4871-5521-5052, v.3
(L12) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and
(M) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action.
Appears in 1 contract
Samples: Receivables Purchase Agreement (RPM International Inc/De/)
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (each an “Indemnified Party”"ORIGINATOR INDEMNIFIED PARTY") from and against any and all damages, losses, claims, taxesCovered Taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of BuyerBuyer or any such assign) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”"ORIGINATOR INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or as a result any of this Agreement or the acquisition, either directly or indirectly, by Buyer of an interest in the Receivables, excluding, howeverfollowing:
(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;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States or 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 such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(A) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with any Purchase Report, this Agreement, any other Transaction Document to which such Originator is a party or any other information or report delivered by any 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;
(Bii) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction DocumentDocument to which such Originator is a party;
(Div) any products liability, personal liability 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 to which such Originator is a party or any ReceivableReceivable originated by such Originator;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorthe Obligor or failure to pay due to financial inability) of an the Obligor to the payment of any Receivable originated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(Fvi) the commingling of Collections of Receivables originated by such Originator at any time with other funds;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction DocumentDocument to which such Originator is a party, the transactions contemplated hereby, the such Originator's use of the proceeds of the Purchaseany Purchase from it hereunder, the ownership of the Receivables originated by such Originator or any other investigation, litigation or proceeding relating to such Originator in which any Originator Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(Hviii) any inability to litigate any claim against any Obligor in respect of any Receivable originated by such 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;
(I) any Amortization Event described in Section 5.1(d);
(Jix) 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;
(K) 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 the Purchase or at any subsequent time;
(L) any action or omission Receivables originated by such Originator which reduces or impairs and the rights associated Collections, and all of Buyer with respect to any Receivable or the value of any such Receivable; Originator's right, title and
(M) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action.
Appears in 1 contract
Samples: Receivables Sale and Contribution Agreement (Choicepoint Inc)
Indemnities by Originators. Without limiting any other rights that the Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) the Buyer and its assigns, officers, directors, agents and employees (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 actually incurred (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against and actually paid or actually incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by the Buyer of an any interest in the ReceivablesReceivables originated by such 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same arise out of or as a result of claims of one or more Indemnified Parties against another Indemnified Party;
(c) Indemnified Amounts to the extent the same includes losses in respect of Receivables originated by such Originator that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiid) taxes imposed by the United States or the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income or gross receipts of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended CharacterizationParty; provided, however, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of the Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such but subject in each case to clauses (a) through (d) above, each Originator shall indemnify the Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with any Purchase Report, this Agreement, any other Transaction Document to which such Originator is a party or any other information or report delivered by any such Person Originator pursuant hereto or thereto, thereto for which the Buyer has not received a Purchase Price Credit that shall have been false or incorrect when made or deemed made;
(Bii) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;; Table of Contents
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(Div) any products liability, personal liability injury or damage suitdamage, suit or other similar claim arising out of or in connection with merchandise, insurance goods or services that are the subject of any Contract or any ReceivableReceivable relating to such Originator;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable sold by such Originator to Buyer hereunder (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise goods or service related to such Receivable or the furnishing or failure to furnish such merchandise goods or services;
(Fvi) the commingling of any Collections of Receivables at any time with other fundsreceived, directly or indirectly by an Originator (or its agent) which are not promptly remitted to Buyer;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the such Originator’s use of the proceeds of the PurchasePurchase from it hereunder, the ownership of the Receivables originated by such Originator or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(Hviii) any inability to litigate any claim against any Obligor in respect of any Receivable sold by such Originator to Buyer hereunder reflected in any Purchase Report as being an Eligible 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;
(Iix) any Amortization Termination Event described in Section 5.1(d5.1(e);
(Jx) any failure to vest and maintain vested in the Buyer, or to transfer to the Buyer, legal ownership of the Receivables originated by such Originator and equitable title topurported to be conveyed to the Buyer hereunder, and ownership oftogether with the associated Related Security, the Receivables, the Related Security and the Collectionsin each case, free and clear of any Adverse Claim;
(Kxi) 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 the applicable laws of Canada with respect to any Receivable, Receivable originated by such Table of Contents Originator and the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of the Purchase from such Originator hereunder or at any subsequent time, in each case to the extent required to do so pursuant to this Agreement;
(Lxii) any action or omission by such Originator which reduces or impairs the rights of the Buyer with respect to any Receivable sold by Originator to Buyer hereunder or reduces the value of any such ReceivableReceivable (for any reason other than the application of Collections thereto or charge-off of any Receivable as uncollectible) unless the Buyer has received a Purchase Price Credit therefor; and
(Mxiii) the failure of any attempt Receivable sold by any Person Originator to void Buyer hereunder reflected as an Eligible Receivable on any Purchase hereunder under statutory provisions or common law or equitable actionReport prepared by such Originator to be an Eligible Receivable at the time acquired by the Buyer.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Mohawk Industries Inc)
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of 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 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the United States States, the Indemnified Party's jurisdiction of organization (or in the case of an individual, primary resident) 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 transaction contemplated hereby, 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 Characterizationcharacterization 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 such any Originator or limit the recourse of Buyer to such any Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such but subject in each case to clauses (a), (b) and (c) above, an Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with any Purchase Report, this Agreement, any other Transaction Document or any other information or report delivered by any 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;
(Bii) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(Div) any products liability, personal liability 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;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(Fvi) the commingling of Collections of Receivables at any time with other 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 the PurchasePurchase hereunder, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated 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;
(Iix) any Amortization Termination Event described in Section 5.1(d);
(Jx) 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 such Originator's right, title and interest in the Related Security and associated with the CollectionsReceivables, in each case, free and clear of any Adverse ClaimClaim (except as created by the Transaction Documents);
(Kxi) 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 the Purchase or at any subsequent time;
(Lxii) any action or omission by such Originator which reduces or impairs the rights of Buyer (or its assigns) with respect to any Receivable or the value of any such Receivable; and;
(Mxiii) any attempt by any Person to void any the Purchase hereunder under statutory provisions or common law or equitable action; and
(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.
Appears in 1 contract
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator of the Originators, jointly and severally, hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (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 BuyerBuyer 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 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the United States or 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 Characterizationcharacterization 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 such Originator the Originators or limit the recourse of Buyer to such Originator the Originators for amounts otherwise specifically provided to be paid by such either Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such Originator the Originators, jointly and severally, shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivablesReceivables, regardless of whether reimbursement therefor therefore would constitute recourse to such Originatorthe Originators) relating to or resulting from:
(Ai) any representation or warranty made by such an Originator (or any officers of any such Originator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by any such Person an Originator pursuant hereto or thereto, which thereto that shall have been false or incorrect when made or deemed made;
(Bii) the failure by such Originator an 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 such an Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(Ciii) any failure of such an Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(Div) any products liability, personal liability 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;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(Fvi) the commingling of Collections of allocable to the Receivables at any time with other 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 the Purchaseany Purchase Price payment, the ownership of the Receivables and the associated Related Security, or any other investigation, litigation or proceeding relating to such an Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated 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;
(Iix) any Amortization Termination Event described in Section 5.1(d7.1(f) or (g);
(Jx) 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;
(Kxi) 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 the Purchase or at any subsequent time;
(Lxii) any action or omission by such an Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and
(Mxiii) any attempt by any Person to void any the Purchase hereunder under statutory provisions or common law or equitable action.
Appears in 1 contract
Samples: Receivable Sale Agreement (Ferrellgas Partners Finance Corp)
Indemnities by Originators. Without limiting any other rights that the Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) the Buyer and its assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of Buyer) and disbursements actually incurred (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against and actually paid or actually incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by the Buyer of an any interest in the ReceivablesReceivables originated by such 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same arise out of or as a result of claims of one or more Indemnified Parties against another Indemnified Party;
(c) Indemnified Amounts to the extent the same includes losses in respect of Receivables originated by such Originator that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiid) taxes imposed by the United States or the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income or gross receipts of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended CharacterizationParty; provided, however, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of the Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such but subject in each case to clauses (a), (b) and (c) above, each Originator shall indemnify the Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with any Purchase Report, this Agreement, any other Transaction Document to which such Originator is a party or any other information or report delivered by any such Person Originator pursuant hereto or thereto, thereto for which the Buyer has not received a Purchase Price Credit that shall have been false or incorrect when made or deemed made;
(Bii) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(Div) any products liability, personal liability injury or damage suitdamage, suit or other similar claim arising out of or in connection with merchandise, insurance goods or services that are the subject of any Contract or any Receivable;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise goods or service related to such Receivable or the furnishing or failure to furnish such merchandise goods or services;
(Fvi) the commingling of any Collections of Receivables at any time with other fundsreceived, directly or indirectly by an Originator (or its agent) which are not promptly remitted to Buyer;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the such Originator’s use of the proceeds of the PurchasePurchase from it hereunder, the ownership of the Receivables originated by such Originator or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(Hviii) any inability to litigate any claim against any Obligor in respect of any Receivable reflected in any Purchase Report as being an Eligible 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;
(Iix) any Amortization Termination Event described in Section 5.1(d);
(Jx) any failure to vest and maintain vested in the Buyer, or to transfer to the Buyer, legal ownership of the Receivables originated by such Originator and equitable title topurported to be conveyed to the Buyer hereunder, and ownership oftogether with the associated Related Security, the Receivables, the Related Security and the Collectionsin each case, free and clear of any Adverse Claim;
(Kxi) 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 the applicable laws of Canada with respect to any Receivable, Receivable originated by such Originator and the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of the Purchase from such Originator hereunder or at any subsequent time;
(Lxii) any action or omission by such Originator which reduces or impairs the rights of the Buyer with respect to any Receivable or reduces the value of any such ReceivableReceivable (for any reason other than the application of Collections thereto or charge-off of any Receivable as uncollectible) unless the Buyer has received a Purchase Price Credit therefor; and
(Mxiii) the failure of any attempt by any Person to void Receivable reflected as an Eligible Receivable on any Purchase hereunder under statutory provisions or common law or equitable actionReport prepared by such Originator to be an Eligible Receivable at the time acquired by the Buyer.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Mohawk Industries Inc)
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify Buyer and its assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of 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 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States or 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; provided, however, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(A) any representation or warranty made by such Originator (or any officers of any such Originator) 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;
(B) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(C) any failure of such 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, personal liability or damage suit, or 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 an Obligor) of an Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(F) the commingling 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 the Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(H) 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;
(I) any Amortization Event described in Section 5.1(d);
(J) 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;
(K) 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 the Purchase or at any subsequent time;
(L) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and
(M) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action.
Appears in 1 contract
Samples: Receivables Sale Agreement (Insight Enterprises Inc)
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (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 BuyerBuyer 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 of an interest in the ReceivablesReceivables originated by such 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the United States States, the Indemnified Party’s jurisdiction of organization (or, in the case of an individual, primary residence) or the 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; provided, however, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such but subject to the exclusions in clauses (a), (b) and (c) above, each Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivablesReceivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originatorits officers) under or in connection with this Agreement, any other Transaction Document to which such Originator is a party 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;
(Bii) the failure by such 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 such any Originator to keep or perform any of its obligations, express or implied, with respect to any such Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction DocumentDocument to which it is a party;
(Div) any products liability, personal liability 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 ReceivableReceivable originated by such Originator;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable originated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise goods or service services related to such Receivable or the furnishing or failure to furnish such merchandise goods or services;
(Fvi) the commingling of Collections of such Receivables at any time with other funds;
(Gvii) any investigation, litigation or proceeding related to or arising from (A) this Agreement or any other Transaction DocumentDocument to which such Originator is a party, (B) the transactions contemplated hereby, (C) the use by such Originator of the proceeds of the Purchase, the ownership of the Receivables any purchase from it hereunder or (D) any other investigation, litigation or proceeding relating to such Originator Originator, in each case in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(Hviii) 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;
(Iix) (A) failure of such Originator generally to pay its debts as such debts become due or admission by such Originator in writing of its inability to pay its debts generally or any Amortization Event described making by such Originator of a general assignment for the benefit of creditors; or (B) the institution of any proceeding by or against such 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 such Originator of any action to authorize any of the actions set forth in Section 5.1(dclauses (A) or (B) above in this clause (ix);
(Jx) any failure to vest and maintain vested in BuyerBuyer or its assigns, or to transfer to Buyer, legal and equitable title to, and ownership of, a first priority perfected ownership interest in the Receivables, Receivables originated by such Originator and the associated Related Security and the Collections, free and clear of any Adverse Claim;Claim (except as created by the Transaction Documents); and
(Kxi) 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 the Purchase sale to Buyer or at any subsequent time;
(L) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and
(M) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action.
Appears in 1 contract
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (each 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 attorneys’ ' fees (which attorneys may be employees of BuyerBuyer 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 of an interest in the ReceivablesReceivables originated by such 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the United States States, the Indemnified Party's jurisdiction of organization (or, in the case of an individual, primary residence) or the 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; providedPROVIDED, howeverHOWEVER, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such but subject to the exclusions in clauses (a), (b) and (c) above, each Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivablesReceivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originatorits officers) under or in connection with this Agreement, any other Transaction Document to which such 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;
(Bii) the failure by such 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 such any Originator to keep or perform any of its obligations, express or implied, with respect to any such Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction DocumentDocument to which it is a party;
(Div) any products liability, personal liability 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 ReceivableReceivable originated by such Originator;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable originated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise goods or service services related to such Receivable or the furnishing or failure to furnish such merchandise goods or services;
(Fvi) the commingling of Collections of such Receivables at any time with other funds;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction DocumentDocument to which such Originator is a party, the transactions contemplated hereby, the use by such Originator of the proceeds of the Purchase, the ownership of the Receivables any purchase from it hereunder or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(Hviii) 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;
(Iix) (A) failure of such Originator generally to pay its debts as such debts become due or admission by such Originator in writing of its inability to pay its debts generally or any Amortization Event described making by such Originator of a general assignment for the benefit of creditors; or (B) the institution of any proceeding by or against such 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 such Originator of any corporate action to authorize any of the actions set forth in Section 5.1(dclauses (A) or (B) above in this clause (ix);
(Jx) 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 such Originator and the associated Related Security and the Collections, free and clear of any Adverse ClaimClaim (except as created by the Transaction Documents);
(Kxi) 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 the Purchase sale to Buyer or at any subsequent time;; and
(Lxii) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and
(M) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action.
Appears in 1 contract
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (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 BuyerBuyer 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 of an interest in the ReceivablesReceivables originated by such 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the United States States, the Indemnified Party's jurisdiction of organization (or, in the case of an individual, primary residence) or the 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; provided, however, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such but subject to the exclusions in clauses (a), (b) and (c) above, each Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivablesReceivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originatorits officers) under or in connection with this Agreement, any other Transaction Document to which such Originator is a party 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;
(Bii) the failure by such 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 such an Originator to keep or perform any of its obligations, express or implied, with respect to any such Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction DocumentDocument to which it is a party;
(Div) any products liability, personal liability 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 ReceivableReceivable originated by such Originator;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable originated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise goods or service services related to such Receivable or the furnishing or failure to furnish such merchandise goods or services;
(Fvi) the commingling of Collections of such Receivables at any time with other funds;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction DocumentDocument to which such Originator is a party, the transactions contemplated hereby, the use by such Originator of the proceeds of the Purchase, the ownership of the Receivables any purchase from it hereunder or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(Hviii) 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;
(Iix) the occurrence of any Amortization Event event described in Section 5.1(d)) with respect to such Originator or, from and after the time the Performance Undertaking has been delivered, Performance Guarantor;
(Jx) any failure to vest and maintain vested in BuyerBuyer or its assigns, or to transfer to Buyer, legal and equitable title to, and a first priority perfected ownership ofinterest in, the Receivables, Receivables originated by such Originator and the associated Related Security and the Collections, free and clear of any Adverse Claim;
Claim (K) except as created by 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 the Purchase or at any subsequent time;
(L) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such ReceivableTransaction Documents); and
(Mxi) If any attempt Indemnified Amount arises out of a lawsuit or other adversarial proceeding, unless an Indemnified Party's business reputation is at issue, the applicable Originator shall be entitled to assume and control the defense thereof in its sole discretion using counsel approved by any Person the applicable Indemnified Party (such approval not to void any Purchase hereunder under statutory provisions be unreasonably withheld or common law delayed). If an Originator does assume the defense of a lawsuit or equitable actionother adversarial proceeding pursuant to the preceding sentence, the applicable Indemnified Party may engage additional counsel only at such Indemnified Party's sole expense.
Appears in 1 contract
Indemnities by Originators. (a) Without limiting any other rights that the Buyer may have hereunder or under applicable lawApplicable Law, each Originator Originator, jointly and severally, hereby agrees to indemnify Buyer and the Buyer, each of its assigns, officers, directors, agents employees, agents, employees and employees respective assigns, the Administrative Agent, each Credit Party and each Affected Person (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, claims, losses, claims, taxesjudgments, liabilities, costs, penalties and related 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”Attorney Costs) awarded against or incurred by any of them arising out of of, relating to or as a result of this Agreement or the acquisition, either directly or indirectly, by Buyer of an interest in the Receivables, excluding, howeverconnection with:
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from bad faithany representation, gross negligence warranty or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy statement made or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States or 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 such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(A) any representation or warranty deemed made by such Originator (or any officers of any such Originatorits respective officers) under or in connection with this Agreement, any of the other Transaction Document Documents or any other information or report delivered by any or on behalf of such Person Originator pursuant hereto or thereto, which shall have been false untrue or incorrect when made or deemed made;
(Bii) the transfer by such Originator of any interest in any Pool Receivable or Related Right other than the transfer of any Pool Receivable and Related Security to the Buyer pursuant to this Agreement and the grant of a security interest to the Buyer pursuant to this Agreement;
(iii) the failure by such Originator to comply with the terms of any applicable law, rule Transaction Document or regulation with any Applicable Law with respect to any Pool Receivable or the related Contract; or the failure of any Pool Receivable or the related Contract related theretoto conform to any such Applicable Law;
(iv) the lack of an enforceable ownership interest, or a first priority perfected lien, in the nonconformity Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Receivable or Contract included therein with any such applicable lawAdverse Claim;
(v) the failure to have filed, rule or regulation or any failure delay in filing, financing statements (including as-extracted collateral filings), financing statement amendments, continuation statements or other similar instruments or documents under the UCC of such Originator to keep any applicable jurisdiction or perform any of its obligations, express or implied, other Applicable Laws with respect to any ContractPool Receivable or the Related Rights;
(Cvi) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of 28 or in connection with the property, products or services that are the subject of any Pool Receivable originated by such Originator);
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable in the Receivables Pool (including a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the property, products or services to such Receivable or the furnishing or failure to furnish such property, products or services;
(viii) any failure of such Originator to perform any its duties, covenants duties or other obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(ix) the commingling of Collections of Pool Receivables at any time with other funds;
(x) any setoff with respect to any Pool Receivable;
(xi) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction DocumentDocument or in respect of any Pool Receivable or any Related Rights;
(Dxii) any products liability, personal liability or damage suit, or similar claim brought by any Person other than a Purchase and Sale Indemnified Party arising out of or in connection with merchandise, insurance or services that are the subject of from any Contract activity by such Originator or any Affiliate of such Originator in servicing, administering or collecting any Pool Receivable;
(Exiii) the failure by such Originator to pay when due any taxes, including, without limitation, sales, excise or personal property taxes;
(xiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Pool Receivable (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 any other claim resulting from the sale of goods or the merchandise or service rendering of services related to such Pool Receivable or the furnishing or failure to furnish any such merchandise goods or servicesservices or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(Fxv) any product liability claim arising out of or in connection with goods or services that are the commingling subject of Collections of Receivables at any time with other fundsReceivable generated by such Originator;
(Gxvi) any investigationtax or governmental fee or charge, litigation all interest and penalties thereon or proceeding related with respect thereto, and all reasonable out-of-pocket costs and expenses, including without limitation reasonable Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or arising from ownership of the Receivables generated by such Originator or any Related Rights connected with any such Receivables; or
(xvii) any failure of such Originator to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document; provided that such indemnity shall not be available to any Purchase and Sale Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final judgment to have resulted from the transactions contemplated hereby, the use gross negligence or willful misconduct of the proceeds Administrative Agent, a Credit Party or any Affected Person or (y) constitute recourse with respect to a Pool Receivable by reason of the Purchasebankruptcy or insolvency, the ownership bankruptcy, lack of creditworthiness or other financial inability to pay of the Receivables related Obligor.
(b) Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in clauses (i), (iii), (viii) and (xvii) of this Article IX, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be deemed to be not so qualified.
(c) If for any other investigation, litigation or proceeding relating reason the foregoing indemnification is unavailable to such Originator in which any Purchase and Sale Indemnified Party becomes involved as a result of any of or insufficient to hold it harmless, then the transactions contemplated hereby;
(H) any inability Originators, jointly and severally, shall contribute to litigate any claim against any Obligor in respect of any Receivable the amount paid or payable by such Purchase and Sale Indemnified Party as a result of such Obligor being immune from civil loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of such Originator and commercial law and suit its Affiliates on the grounds one hand and such Purchase and Sale Indemnified Party on the other hand in the matters contemplated by this Agreement as well as the relative fault of sovereignty or otherwise from any legal action, suit or proceeding;
(I) any Amortization Event described in Section 5.1(d);
(J) any failure to vest such Originator and maintain vested in Buyer, or to transfer to Buyer, legal its Affiliates and equitable title to, such Purchase and ownership of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim;
(K) 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 Sale Indemnified Party with respect to such loss, claim, damage or liability and any Receivableother relevant equitable considerations. The reimbursement, indemnity and contribution obligations of such Originator under this Section shall be in addition to any liability which such Originator may otherwise have, shall extend upon the Related Security same terms and Collections with respect theretoconditions to Purchase and Sale Indemnified Party, and shall be binding upon and inure to the proceeds benefit of any thereofsuccessors, whether at the time assigns, heirs and personal representatives of such Originator and the Purchase or at any subsequent time;and Sale Indemnified Parties.
(Ld) any action Any indemnification or omission by such Originator which reduces or impairs contribution under this Section shall survive the rights termination of Buyer with respect to any Receivable or the value of any such Receivable; and
(M) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable actionthis Agreement.
Appears in 1 contract
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each the Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of BuyerBuyer 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 of an interest in the ReceivablesTransferred Assets originated by the 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables Transferred Assets originated by the Originator that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed on or measured by such Indemnified Party’s net income, and franchise taxes and branch profit taxes imposed on it, by the United States jurisdiction under the laws of which such Indemnified Party is organized or any political subdivision thereof, and taxes imposed on or measured by such Indemnified Party’s net income, and franchise taxes and branch profit taxes imposed on it, by the jurisdiction in which such Indemnified Party’s principal executive office is located, on located 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 Characterizationany political subdivision thereof; provided, however, that nothing contained in this sentence shall limit the liability of such the Originator or limit the recourse of Buyer to such the Originator for amounts otherwise specifically provided to be paid by such the Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such but subject in each case to clauses (a), (b) and (c) above, the Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such the Originator (or any officers of any such the Originator) under or in connection with any Purchase Report, this Agreement, any other Transaction Document or any other information or report delivered by any such Person the 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;
(Bii) the failure by such the Originator to comply with any applicable law, rule or regulation with respect to any Receivable Transferred Asset or any Contract related thereto, or ; the nonconformity of any Receivable Transferred Asset or Contract included therein with any such applicable law, rule or regulation or any failure of such the Originator to keep or perform any of its obligations, express or implied, with respect to any Contract; or the failure of the account designated by the Originator as the Concentration Account to comply with any law, rule or regulation applicable to so-called “Chain Home Office” accounts under Medicare and Medicaid regulations;
(Ciii) any failure of such the Originator to satisfy any condition precedent set forth in Article III or to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(Div) any products liability, personal liability 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 ReceivableTransferred Asset;
(Ev) any dispute, claim, offset or defense (other than a defense related to the financial condition, or discharge in bankruptcy bankruptcy, of an the Obligor) of an the Obligor to the payment of any Receivable Transferred Asset (including, without limitation, a defense based on such Receivable Transferred Asset or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable Transferred Asset or the furnishing or failure to furnish such merchandise or services;
(Fvi) the commingling of Collections of Receivables Transferred Assets at any time with other funds, including, without limitation, receipts for leased space or equipment;
(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 the PurchasePurchase from it hereunder, the ownership of the Receivables Transferred Assets originated by the Originator or any other investigation, litigation or proceeding relating to such the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(H) 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;
(I) any Amortization Event described in Section 5.1(d);
(Jviii) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the ReceivablesTransferred Assets originated by the Originator and the associated Collections, and all of the Originator’s right, title and interest in the Related Security and the Collectionsassociated with such Transferred Assets, in each case, free and clear of any Adverse ClaimLien;
(Kix) the failure to have filedfiled or delivered to Buyer (or to its assigns for filing), or any delay in filingsuch filing or delivery of, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, Transferred Asset originated by the Related Security and Collections with respect thereto, and the proceeds of any thereofOriginator, whether at the time of the Purchase from the Originator hereunder or at any subsequent time;
(Lx) any action or omission by such the Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and;
(Mxi) any attempt by any Person to void any the Purchase from the Originator hereunder under statutory provisions or common law or equitable action; and
(xii) the failure of any Receivable reflected as an Eligible Receivable on any Purchase Report prepared by the Originator to be an Eligible Receivable at the time acquired by Buyer. Notwithstanding the foregoing, (i) the foregoing indemnification is not intended to, and shall not, constitute a guarantee of the collectibility or payment of the Transferred Assets conveyed hereunder; and (ii) nothing in the Section 6.1 shall require the Originator to indemnify any Indemnified Party for Receivables that are not collected, not paid or otherwise uncollectible on account of the insolvency, bankruptcy, creditworthiness or financial inability to pay of the applicable Obligor.
Appears in 1 contract
Samples: Receivables Sale Agreement (Universal Health Services Inc)
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (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 BuyerBuyer 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 of an interest in the ReceivablesReceivables originated by such 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 bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or;
(iiic) taxes imposed by the United States or 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 Characterizationcharacterization for income tax purposes of the acquisition by Buyer of Receivables in a true sale by such Originator to Buyer of such Receivables and the associated Collections and Related Security; or
(d) amounts for which Buyer has actually received a Purchase Price Credit as required by Section 1.4; provided, however, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such but subject to the exclusions in clauses (a), (b), (c) and (d) above, each Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivablesReceivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originatorits officers) under or in connection with this Agreement, any other Transaction Document to which such Originator is a party 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;
(Bii) the failure by such 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 such any Originator to keep or perform any of its obligations, express or implied, with respect to any such Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction DocumentDocument to which it is a party;
(Div) any products liability, personal liability 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 ReceivableReceivable originated by such Originator;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable originated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise goods or service services related to such Receivable or the furnishing or failure to furnish such merchandise goods or services;
(Fvi) the commingling of Collections of such Receivables at any time with other funds;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction DocumentDocument to which such Originator is a party, the transactions contemplated hereby, the use by such Originator of the proceeds of the Purchase, the ownership of the Receivables any purchase from it hereunder or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(Hviii) 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;
(Iix) (A) failure of such Originator generally to pay its debts as such debts become due or admission by such Originator in writing of its inability to pay its debts generally or any Amortization Event described making by such Originator of a general assignment for the benefit of creditors; or (B) the institution of any proceeding by or against such 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 such Originator of any corporate action to authorize any of the actions set forth in Section 5.1(dclauses (A) or (B) above in this clause (ix);
(Jx) any failure to vest and maintain vested in BuyerBuyer or its assigns (subject to the Transaction Documents), or to transfer to Buyer, legal and equitable title to, and ownership of, a first priority perfected ownership interest in the Receivables, Receivables originated by such Originator and the associated Related Security and the Collections, free and clear of any Adverse Claim;Claim (except as created by the Transaction Documents); and
(Kxi) 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 the Purchase sale to Buyer or at any subsequent time;
(L) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and
(M) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action.
Appears in 1 contract
Samples: Receivables Sale Agreement (Ralcorp Holdings Inc /Mo)
Indemnities by Originators. (a) Without limiting any other rights -------------------------- that Buyer may have hereunder or under applicable law, each Originator Originator, jointly and severally, hereby agrees to indemnify Buyer Buyer, each Agent and its each Purchaser, and their respective assigns, officers, directors, agents agents, employees, members and employees direct or indirect owners (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 of an interest in the Receivables, excluding, however:
(i1) 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;
(ii2) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii3) taxes imposed by the United States or 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 any Excluded Taxes except to the extent that the computation of such taxes Indemnified Party is consistent with entitled to receive an amount equal to the Intended Characterizationsum it would have received had no deductions for Taxes and Other Taxes been made as set forth in Section 6.1(c)(i); provided, however, that nothing contained in this sentence shall limit the liability of such any Originator or limit the recourse of Buyer to such any Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such each Originator shall shall, jointly and severally, indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by any such Person Originator pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(Bii) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(Div) any products liability, personal liability or damage suit, or similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any ReceivableContract;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(Fvi) the commingling of Collections of Receivables at any time with other fundsfunds other than Collections in respect of sales taxes;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the such Originator's use of the proceeds of the PurchasePurchase from it hereunder, the ownership of the Receivables originated by such Originator or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated 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 or suit on the grounds of sovereignty sovereign immunity, failure to comply with applicable state or federal assignment of claims acts (or analogous laws) and the regulations promulgated thereunder, or otherwise from any legal action, suit or proceeding;
(Iix) any Amortization Termination Event described in Section 5.1(d);; --------------
(Jx) 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 related Collections, and all of such Originator's right, title and interest in, the Related Security and the Collections, in each case, free and clear of any Adverse Claim;
(Kxi) 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 such Originator, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of the Purchase from such Originator hereunder or at any subsequent time;
(Lxii) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and;
(Mxiii) any attempt by any Person (other than a Purchaser) to void any the Purchase from such Originator hereunder under statutory provisions or common law or equitable action; and
(xiv) any offset or recoupment against the Outstanding Balance of any Receivable by any Governmental Authority of taxes due and owing to it by any Originator or any of its Affiliates;
(b) Notwithstanding anything to the contrary in this Agreement, solely for the purposes of determining Indemnified Amounts owing under this Section 6.1, ----------- any representation, warranty or covenant qualified by materiality or the occurrence of a Material Adverse Effect shall not be so qualified.
Appears in 1 contract
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (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 attorneys’ ' fees (which attorneys may be employees of BuyerBuyer 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 of an interest in the ReceivablesReceivables originated by such Originator, excludingEXCLUDING, howeverHOWEVER:
(ia) 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;
(iib) Indemnified Amounts to the extent the same includes losses in respect of Receivables originated by such Originator that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iiic) taxes imposed by the United States or 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 Characterizationcharacterization 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 such Originator, the Related Security and the Collections; providedPROVIDED, howeverHOWEVER, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, such but subject in each case to clauses (a), (b) and (c) above, each Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(Ai) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with any Purchase Report, this Agreement, any other Transaction Document or any other information or report delivered by any 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;
(Bii) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(Div) any products liability, personal liability 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;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(Fvi) the commingling of Collections of Receivables at any time with other funds;
(Gvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction DocumentDocument with respect to such Originator, the transactions contemplated hereby, the such Originator's use of the proceeds of the PurchasePurchase from it hereunder, the ownership of the Receivables originated by such Originator or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated 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;
(Iix) any Amortization Termination Event described in Section 5.1(d5.1(e);
(J) 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;
(K) 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 the Purchase or at any subsequent time;
(L) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and
(M) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action.
Appears in 1 contract
Indemnities by Originators. Without limiting any other rights that Buyer may have hereunder or under applicable law, each Originator hereby agrees agrees, severally and not jointly, to indemnify (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of BuyerBuyer 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 of an interest in the ReceivablesReceivables of such 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;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the United States or 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; provided, however, that nothing contained in this sentence shall limit characterization for income tax purposes of the liability acquisition by the Purchasers of such Originator or limit the recourse of Buyer to such Originator for amounts otherwise specifically provided to be paid by such Originator Purchaser Interests under the terms of this Agreement. Without limiting Purchase Agreement as a loan or loans by the generality of Purchasers to Buyer secured by, among other things, the foregoing indemnificationReceivables, such Originator shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:the Related Security and the Collections;
(Ai) any representation or warranty made by such Originator (or any officers of any such Originator) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by any such Person Originator pursuant hereto or thereto, which thereto that shall have been false or incorrect when made or deemed made;
(Bii) the failure by such 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 such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(Ciii) any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(Div) any products liability, personal liability 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;
(Ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Receivable of such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(Fvi) the commingling of Collections of Receivables at any time with other 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 the Purchaseany Purchase Price Payment of such Originator, the ownership of the Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(H) 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;
(I) any Amortization Event described in Section 5.1(d);
(J) 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;
(K) 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 the Purchase or at any subsequent time;
(L) any action or omission by such Originator which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; and
(M) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action.
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