Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo and its assigns, officers, directors, employees and agents (each of the foregoing Persons being individually called an “Indemnified Party”), on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of the following: (a) the transfer by a Seller of an interest in any Receivable to any Person other than Xxxxx Fargo; (b) the breach of any representation or warranty made by the Seller Representative or any Seller under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto which shall have been false or incorrect in any material respect when made or deemed made; (c) the failure by the Seller Representative or any Seller to comply with any applicable law, rule or regulation with respect to any Receivable or Related Asset, or the nonconformity of any Receivable or the Related Asset with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor; (d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor; (e) the failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear of any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafter; (f) any Dispute of an Account Debtor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables or the related Contracts not being a legal, valid and binding obligation of such Account Debtor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods or services related to any such Receivable or the furnishing of or failure to furnish such goods or services; (g) any failure of the Seller Representative or any Seller to perform its duties or obligations in accordance with the provisions of the Transaction Documents; (h) any products liability claim, personal injury or property damage suit, environmental liability claim or any other claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with the goods or services that are the subject of any Receivable with respect thereto; excluding, however, (i) Indemnified Amounts to the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable law.
Appears in 3 contracts
Samples: Receivables Purchase Agreement, Receivables Purchase Agreement (SMART Global Holdings, Inc.), Receivables Purchase Agreement (SMART Global Holdings, Inc.)
Indemnities by Seller. (a) Without limiting any other rights which Xxxxx Fargo that the Administrative Agent or any Purchaser may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo (and its pay upon demand to) the Administrative Agent and each of the Purchasers and their respective assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called an “Indemnified Party”), on demand, ) from and against any and all damages, losses, claims, judgmentstaxes, liabilities liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ fees and disbursements of external counsel (all of the foregoing being collectively called 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 following:
(a) acquisition, either directly or indirectly, by the transfer by a Seller Administrative Agent or any Purchaser of an interest in any Receivable the Receivables excluding, however, in all of the foregoing instances:
(A) Indemnified Amounts to any Person other than Xxxxx Fargothe extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of an Indemnified Party;
(bB) Indemnified Amounts to the breach extent the same include losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness or financial inability or unwillingness to pay (other than a dispute giving rise to a Dilution) of the related Obligor; or
(C) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Receivable Interests as a loan or loans by the Purchasers to Seller secured by the Collateral; provided, however, that nothing contained in this sentence shall limit the liability of Seller or limit the recourse of the Purchasers to Seller for amounts otherwise specifically provided to be paid by Seller under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to Seller) relating to or resulting from:
(i) any representation or warranty made by any Seller Party, the Seller Representative Performance Guarantor or any Seller Originator (or any officers of any such Person) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any information or report required to be delivered by the Seller Representative or any Seller such Person pursuant hereto or thereto thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(cii) the failure by the any Seller Representative Party or any Seller Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Related AssetContract related thereto, or the nonconformity of any Receivable or the Related Asset Contract included therein with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations regulation or any other circumstance beyond the control failure of the related Seller any Originator to keep or the related Account Debtor;
(d) the failure by the Seller Representative perform any of its obligations, express or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount implied, with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorContract;
(eiii) the any failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear of any Lien Seller Party, any Originator or the Performance Guarantor to perform its duties, covenants or other than obligations in accordance with the provisions of any Transaction Document to which it is a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafterparty;
(fiv) any Dispute environmental liability, products liability, personal injury or damage suit, or other similar claim arising out of an Account Debtor or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(gvi) the commingling of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of a Purchase, the ownership of the Receivable Interests or any other investigation, litigation or proceeding relating to any Seller Party or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Amortization Event described in Section 7.1(g);
(x) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Seller Representative Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Seller to perform its duties give reasonably equivalent value to the applicable Originator under the Sale Agreement in consideration of the transfer by it of any Receivable, or obligations 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 accordance with the provisions Administrative Agent for the benefit of the Purchasers legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Receivable Interests contemplated hereunder) or security interest in the Collateral, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(hxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Collateral, whether on the date hereof or at any subsequent time, except to the extent such failure or delay is caused by the Administrative Agent;
(xiii) any products liability claim, personal injury action or property damage suit, environmental liability claim omission by any Seller Party which reduces or impairs the rights of the Administrative Agent or the Purchasers with respect to any other claim Collateral or action the value of any Collateral;
(xiv) any attempt by a party of whatever sortany Person to void any Purchase or the security interest in the Collateral granted hereunder, whether in tortunder statutory provision, contract common law or any other legal theory, arising out of or in connection with equitable action; and
(xv) the goods or services that are the subject failure of any Receivable with respect thereto; excluding, however, (i) Indemnified Amounts to included in the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment calculation of the Receivables Net Pool Balance as an Eligible Receivable to be an Eligible Receivable at the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable lawtime so included.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Borgwarner Inc), Receivables Purchase Agreement (Borgwarner Inc)
Indemnities by Seller. (a) Without limiting any other rights which Xxxxx Fargo that the Administrative Agent or any of the Purchasers may have hereunder or under applicable lawLaw, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo (and its pay upon demand to) the Administrative Agent, the Purchasers and their respective successors, assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called foregoing, an “Indemnified Party”), on demand, ) from and against any and all damages, losses, claims, judgmentsTaxes, liabilities liabilities, costs, reasonable expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ fees and disbursements of external counsel in suits by parties to the Transaction Documents against one another and by third parties (all of the foregoing being collectively called 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 following:
(a) acquisition, either directly or indirectly, by the transfer by a Seller Administrative Agent or any Purchaser of an interest in any Receivable the Receivables excluding, however, in all of the foregoing instances:
(A) Indemnified Amounts to any Person other than Xxxxx Fargothe extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence, willful misconduct or fraud on the part of the Indemnified Party seeking indemnification;
(bB) Indemnified Amounts to the breach extent the same includes losses in respect of Receivables that are uncollectible solely on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(C) Taxes (which shall be governed by Sections 8.3 and 8.5); provided, however, that nothing contained in this sentence shall limit the liability of Seller or limit the recourse of the Administrative Agent or the Purchasers to Seller for amounts otherwise specifically provided to be paid by Seller under the terms of the Transaction Documents. Without limiting the generality of the foregoing indemnification, Seller shall indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to Seller) relating to or resulting from:
(i) any representation or warranty made by the any Seller Representative Party or any Seller Originator (or any officers of any such Person) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any information or report required to be delivered by the Seller Representative or any Seller such Person pursuant hereto or thereto thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(cii) the failure by the any Seller Representative Party or any Seller Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Related AssetContract related thereto, or the nonconformity of any Receivable or the Related Asset Contract included therein with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations regulation or any other circumstance beyond the control failure of the related Seller any Originator to keep or the related Account Debtor;
(d) the failure by the Seller Representative perform any of its obligations, express or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount implied, with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorContract;
(eiii) the any failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear of any Lien Seller Party or any Originator to perform its duties, covenants or other than obligations in accordance with the provisions of any Transaction Document to which it is a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafterparty;
(fiv) any Dispute environmental liability, products liability, personal injury or damage suit, or other similar claim arising out of an Account Debtor or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(gvi) the commingling of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of any Purchase, the ownership of the Receivable Interests or any other investigation, litigation or proceeding relating to any Seller Party or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Amortization Event described in Section 7.1(g);
(x) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Seller Representative Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Seller to perform its duties give reasonably equivalent value to the applicable Originator under the Sale Agreement in consideration of the transfer by it of any Receivable, or obligations 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 accordance with the provisions Administrative Agent (for the benefit of the Purchasers) a valid and perfected ownership interest (to the extent of the Receivable Interests) or a first priority perfected Security Interest in the Collateral, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(hxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Collateral, whether on the date hereof or at any subsequent time, except to the extent such failure or delay is caused by the Administrative Agent;
(xiii) any products liability claim, personal injury action or property damage suit, environmental liability claim omission by any Seller Party which reduces or impairs the rights of the Administrative Agent or the Purchasers with respect to any Collateral or the value of any Collateral (other than at the direction of the Administrative Agent or any other claim Purchaser and except as contemplated by the Transaction Documents);
(xiv) any attempt by any Person to void any Purchase or action by a party of whatever sortthe Security Interest in the Collateral granted hereunder, whether under statutory provision, common law or equitable action; and
(xv) the failure of any Receivable included in tortthe calculation of the Investment Base as an Eligible Receivable to be an Eligible Receivable at the time so included.
(b) After receipt by an Indemnified Party of notice of any investigative, contract administrative or judicial proceeding (collectively, a “Proceeding”) involving such Indemnified Party, such Indemnified Party shall, if a claim in respect thereof is to be made against Seller hereunder, promptly notify Seller in writing, and in reasonable detail, of such Proceeding. Upon receipt of notice from an Indemnified Party seeking indemnification hereunder with respect to any such Proceeding, Seller shall be entitled to assume the defense of any such Proceeding with counsel reasonably satisfactory to the Administrative Agent. Upon Seller’s assumption of the defense of any such Proceeding, the Indemnified Party shall have the right to participate in such Proceeding and to retain its own counsel but Seller shall not be liable for any legal expenses of other legal theory, arising out of or counsel subsequently incurred by such Indemnified Party in connection with the goods defense thereof unless (x) Seller agrees in writing to pay such fees and expenses, (y) Seller fails to employ counsel reasonably satisfactory to the Administrative Agent in a timely manner, or services (z) the Indemnified Party shall have been advised by counsel that there are actual or potential conflicting interests between Seller, on the one hand, and the Indemnified Party, on the other hand, including situations in which there are one or more legal defenses available to the Indemnified Party that are the subject of any Receivable with respect theretodifferent from or additional to those available to Seller; excludingprovided, however, that Seller shall not in any event be responsible hereunder for the fees and expenses of more than one counsel (iplus local counsel, where necessary) for all Indemnified Amounts Parties in connection with any Proceeding. Seller shall have the sole authority to settle any claim for monetary damages and, if Seller chooses not to assume the extent directly resulting from gross negligence or willful misconduct on the part defense of any such Indemnified PartyProceeding, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an no Indemnified Party will consent to a settlement of, or is insufficient to hold such Indemnified Party harmlessthe entry of any judgment arising from, then such Seller any Proceeding without Seller’s prior written consent, which shall contribute to the amount paid not be unreasonably withheld or payable by such Indemnified Party to the maximum extent permitted under applicable lawdelayed.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Kapstone Paper & Packaging Corp)
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo that the Buyer may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo (and pay upon demand to) the Buyer and its assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called an “Indemnified Party”), on demand, ) from and against any and all damages, losses, claims, judgmentstaxes, liabilities liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called 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 followingpurchase, either directly or indirectly, by the Buyer of any interest in the Receivables, excluding, however:
(a) Indemnified Amounts to the transfer by extent a Seller final judgment of an interest in any Receivable to any Person other than Xxxxx Fargo;a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification; or
(b) taxes imposed by the breach 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; provided, however, that nothing contained in this sentence shall limit the liability of the Seller or limit the recourse of the Buyer to such Seller for amounts otherwise specifically provided to be paid by such Seller under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, but subject in each case to clauses (a)and (b) above, the Seller shall indemnify the Buyer for Indemnified Amounts relating to or resulting from:
(i) any representation or warranty made by the Seller Representative or Seller(or any Seller officers of the Seller) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto which shall have been false or incorrect in any material respect when made or deemed madethereto;
(cii) the failure by the Seller Representative or any Seller Seller, to comply with any applicable law, rule or regulation with respect to any Receivable or Related AssetContract related thereto or any Collateral, or the nonconformity of any Receivable or the Related Asset Contract included therein or any Collateral with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations regulation or any other circumstance beyond the control failure of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities keep or perform any VAT related the VAT Invoice Amount of its obligations, express or implied, with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorContract;
(eiii) the any failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear of any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase Seller to perform its duties, covenants or other obligations in accordance with the provisions of such Receivables this Agreement or at any time thereafterother Transaction Document;
(fiv) any Dispute products liability, personal injury or damage, suit or other similar claim arising out of an Account Debtor or in connection with goods or services that are the subject of any Contract or any Receivable or Collateral;
(v) any dispute, claim, offset or defense (including a discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the sale of the goods or services service related to any such Receivable or the furnishing of or failure to furnish such goods or services;
(gvi) any failure of Collections received, directly or indirectly by the Seller Representative (or any Seller its agent) which are not promptly remitted to perform its duties or obligations in accordance with the provisions of the Transaction DocumentsBuyer;
(hvii) any products liability claiminvestigation, personal injury litigation or property damage suit, environmental liability claim proceeding related to or arising from this Agreement or any other claim or action Transaction Document, the transactions contemplated hereby, the Seller’s use of the proceeds of the Purchase from it hereunder, the ownership of the Receivables originated by a party of whatever sort, whether in tort, contract the Seller or any other legal theoryinvestigation, arising out of litigation or in connection with the goods or services that are the subject of any Receivable with respect thereto; excluding, however, (i) Indemnified Amounts proceeding relating to the extent directly resulting from gross negligence or willful misconduct on the part of such Seller in which any Indemnified Party, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable reflected in any Purchase Report as being an Eligible Receivable as a Credit Reason result of an Account Debtor. If such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Event of Default described in Section 5.1(d);
(x) any failure to vest and maintain vested in the Buyer, or to transfer to the Buyer, ownership of the Receivables originated by the Seller and purported to be conveyed to the Buyer hereunder, together with the associated Related Security, in each case, free and clear of any Adverse Claim;
(xi) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction with respect to any Receivable and the Related Security with respect thereto, and the proceeds of any thereof, whether at the time of the Purchase from the Seller hereunder or at any subsequent time;
(xii) any action or omission by the Seller which impairs the rights of the Buyer with respect to any Receivable or reduces the value of any such Receivable (for any reason other than the indemnification provided above is unavailable application of Collections thereto); and
(xiii) the failure of any Receivable to be an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to Eligible Receivable at the amount paid or payable time acquired by such Indemnified Party to the maximum extent permitted under applicable lawBuyer.
Appears in 1 contract
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo may have hereunder or under applicable lawCOREStaff and the Seller (collectively, the Seller Representative "Indemnifying Parties") shall, and each Seller hereby agrees to indemnify Xxxxx Fargo do jointly and severally indemnify, hold harmless and defend Purchaser, its assigns, Affiliates and their officers, directors, employees shareholders, employees, agents, representatives and agents consultants (each collectively, the "Indemnified Parties") at all times from and after the date of the foregoing Persons being individually called an “Indemnified Party”), on demandthis Agreement, from and against any and all penalties, demands, damages, punitive damages, losses, claimsloss of profits, judgmentsliabilities, liabilities suits, costs, costs of any settlement or judgment, claims of any and related every kind whatsoever, refund obligations (including, without limitation, interest and penalties thereon), remediation costs and expensesexpenses (including, including without limitation, reasonable attorneys’ fees and disbursements (all ' fees), of or to any of the foregoing being collectively called “Indemnified Amounts”) awarded Parties ("Damages"), which may now or in the future be paid, incurred or suffered by or asserted against the Indemnified Parties by any Person resulting or arising from or incurred by in connection with any of them arising out of one or as a result more of the following:following (provided that this Section 11 shall not apply to any items that have been expressly assumed by Purchaser under this Agreement):
(a) the transfer by a Seller of an interest any liability or claim for liability (whether in contract, in tort or otherwise, and whether or not successful) related in any Receivable way to the Assets or the Business to the extent such liability arises in connection with any Person other than Xxxxx Fargoaction, omission or event occurring on or prior to the Closing Date;
(b) any liability or claim for liability (whether in contract, in tort or otherwise, and whether or not successful) related to the breach Taxes of any representation or warranty made by the Seller Representative or any Seller under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto which shall have been false or incorrect in any material respect when made or deemed madeSeller;
(c) any misrepresentation, breach of warranty or nonfulfillment of any covenant or agreement on the part of the Seller under this Agreement or from any misrepresentation in or omission from any list, schedule, certificate or other instrument furnished or to be furnished to Purchaser pursuant to the terms of this Agreement;
(d) any liability or claim for liability against Purchaser or any of the Assets to the extent such liability or claim for liability arises in connection with the failure by the Seller Representative or any of Purchaser and Seller to comply with any applicable bulk transfer law, rule or regulation with respect to any Receivable or Related Asset, or the nonconformity of any Receivable or the Related Asset with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;; and
(e) the failure all actions, suits, proceedings, demands, assessments, adjustments, costs and expenses (including costs of court and reasonable attorneys' fees) incident to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear of any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafter;
(f) any Dispute of an Account Debtor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables or the related Contracts not being a legal, valid and binding obligation of such Account Debtor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods or services related to any such Receivable or the furnishing of or failure to furnish such goods or services;
(g) any failure of the Seller Representative or any Seller to perform its duties or obligations in accordance with the provisions of the Transaction Documents;
(h) any products liability claim, personal injury or property damage suit, environmental liability claim or any other claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with the goods or services that are the subject of any Receivable with respect thereto; excluding, however, (i) Indemnified Amounts to the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable lawforegoing.
Appears in 1 contract
Samples: Asset Purchase Agreement (International Nursing Services Inc)
Indemnities by Seller. (a) Without limiting any other rights which Xxxxx Fargo may have hereunder or under applicable lawthat the Administrative Agent, the Seller Representative Purchasers, the Affected Persons and each Seller hereby agrees to indemnify Xxxxx Fargo and its their respective assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called each, an “Indemnified Party”)) may have hereunder or under Applicable Law, on demand, Seller hereby agrees to indemnify each Indemnified Party from and against any and all damages, losses, claims, judgments, losses and liabilities and related costs and expenses, including Attorney Costs; provided that Seller shall only be responsible for the reasonable attorneys’ documented out-of-pocket fees and disbursements of one primary counsel to the Administrative Agent and the Purchasers and, if reasonably necessary, one regulatory counsel and one local counsel in each jurisdiction the laws of which govern any of the Transaction Documents or in which any of the Seller Parties is organized or owns property or assets (a “Relevant Jurisdiction”), and, solely in the case of any actual or potential conflict of interest as determined by the Administrative Agent or Purchaser affected by such conflict, the Administrative Agent’s or such Purchaser’s own firm of counsel and, if reasonably necessary, one regulatory counsel and one local counsel in each Relevant Jurisdiction to such affected Administrative Agent or Purchaser (all of the foregoing being collectively called referred to as “Seller Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result resulting from this Agreement or any other Transaction Document or the use of proceeds of the following:
Investments or the security interest in respect of any Pool Receivable or any other Sold Assets or Seller Collateral; excluding, however, (1) Seller Indemnified Amounts to the extent a final non-appealable judgment of a court of competent jurisdiction holds that such Seller Indemnified Amounts resulted solely from the gross negligence, willful misconduct or bad faith by the Indemnified Party seeking indemnification and (2) Taxes (other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim). Without limiting or being limited by the foregoing, Seller shall pay on demand (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 4.01), to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Seller Indemnified Amounts relating to or resulting from any of the following (but excluding Seller Indemnified Amounts and Taxes described in clauses (a) and (b) above):
(i) any Pool Receivable which Seller or the transfer by a Seller Master Servicer includes as an Eligible Receivable as part of the Net Pool Balance but which is not an interest in any Eligible Receivable to any Person other than Xxxxx Fargoat such time;
(bii) the breach of any representation representation, warranty or warranty statement made or deemed made by the Seller Representative (or any Seller of its respective officers) under or in connection with this Agreement Agreement, any of the other Transaction Documents, any Monthly Report, any Interim Report or any other Transaction Document, or any information or report delivered by the Seller Representative or any on behalf of Seller pursuant hereto or thereto which shall have been false untrue or incorrect in any material respect when made or deemed made;
(ciii) the failure by the Seller Representative or any Seller to comply with any applicable law, rule or regulation Applicable Law with respect to any Receivable or Related Asset, or the nonconformity of any Pool Receivable or the Related Asset with related Contract; or the failure of any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller Pool Receivable or the related Account DebtorContract to conform to any such Applicable Law;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(eiv) the failure to vest and maintain vested in Xxxxx Fargo the Administrative Agent a first priority perfected ownership or security interest (as defined in all or any portion of the UCC) Sold Assets or Seller Collateral, in the Purchased Receivables and the proceeds thereof, each case free and clear of any Lien Adverse Claim;
(v) delaying the Administrative Agent from filing financing statements, financing statement amendments, continuation statements or other than a Lien arising solely as a result similar instruments or documents under the UCC of an act of Xxxxx Fargoany applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable, any other Sold Assets or any Seller Collateral, whether existing at the time of the purchase of such Receivables any Investment or at any time thereaftersubsequent time;
(fvi) any Dispute dispute, claim, offset or defense (other than discharge in bankruptcy of an Account Debtor the Obligor) of the Obligor to the payment of any Pool Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Pool Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the sale of goods or the rendering of services related to any such Pool Receivable or the furnishing of or failure to furnish any such goods or servicesservices or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(gvii) any failure of the Seller Representative to comply with its covenants, obligations and agreements contained in this Agreement or any Seller other Transaction Document or to perform its duties or obligations in accordance timely and reasonably fully comply with the provisions of the Transaction DocumentsCredit and Collection Policy in regard to each Pool Receivable;
(hviii) any products liability claim, personal injury or property damage suitliability, environmental liability claim or any other claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with the any Pool Receivable or other merchandise, goods or services that which are the subject of or related to any Receivable Pool Receivable;
(ix) the commingling 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 the use of proceeds of any Investments by Seller or in respect of any Pool Receivable, any other Sold Assets or any Seller Collateral or any related Contract;
(xi) any setoff with respect thereto; excluding, however, to any Pool Receivable;
(i) Indemnified Amounts to the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and (iixii) any indemnification claim brought by any Person other than an Indemnified Party arising from any activity by Seller or any Affiliate of Seller in servicing, administering or collecting any Pool Receivable;
(xiii) the failure by Seller to pay when due any taxes, including without limitation, sales, excise or personal property taxes, for which has Seller is legally liable, except for such taxes as are being appropriately contested by appropriate proceedings;
(xiv) any failure of a Collection Bank (other than a Purchaser or an Affiliate thereof) to comply with the effect of recourse to such Seller for non-payment terms of the Receivables applicable Control Agreement, the termination by a Collection Bank (other than a Purchaser or an Affiliate thereof) of any Control Agreement or any amounts (including in respect of any indemnity) payable by the Administrative Agent to a Collection Bank (other than a Purchaser or an Affiliate thereof) under any Control Agreement;
(xv) the extent failure or delay by the applicable Originator to provide any loss arises Obligor with an invoice or other evidence of indebtedness;
(xvi) the use of proceeds of any Investment by Seller; or
(xvii) any reduction in Capital as a result of the distribution of Collections if all or a Credit Reason portion of an Account Debtor. If such distributions shall thereafter be rescinded or otherwise must be returned for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable lawreason.
Appears in 1 contract
Indemnities by Seller. (a) Without limiting any other rights which Xxxxx Fargo that Buyer may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo Buyer and its assignsBuyer's Assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called an “"Indemnified Party”), on demand, ") from and against any and all damages, losses, claims, judgmentstaxes, liabilities liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of Buyer) and disbursements (all of the foregoing being collectively called “referred to as "Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement, the following:
(a) Transfer Agreement, or the transfer acquisition, either directly or indirectly, by a Seller Buyer of an interest in any Receivable the Receivables, excluding, however:
(i) Indemnified Amounts to any Person other than Xxxxx Fargothe extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same 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 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 Seller or limit the recourse of Buyer to Seller for amounts otherwise specifically provided to be paid by Seller under the terms of this Agreement.
(b) Without limiting the breach generality of the indemnification contained in Section 6.1(a), Seller shall indemnify Buyer for Indemnified Amounts (including losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller) relating to or resulting from:
(i) any representation or warranty made by the any Originator, Seller Representative or Custodian (or any Seller officers of any Originator, Seller, any Vacation Club or Custodian) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(cii) the failure by any Originator, Seller, any Vacation Club or Custodian (with respect to its duties under Article XV of the Seller Representative Purchase Agreement or any Seller other provision of the Purchase Agreement) to comply with any applicable law, rule or regulation with respect to any Receivable or Related AssetContract related thereto, or the nonconformity of any Receivable or the Related Asset Contract included therein with any such applicable law, rule or regulationregulation or any failure of any Originator, Seller, any Vacation Club or resulting from an act Custodian (with respect to its duties under Article XV of God, civil strife, war, currency restrictions, foreign political restrictions or regulations the Purchase Agreement or any other circumstance beyond the control provision of the related Seller Purchase Agreement) to keep or the related Account Debtor;
(d) the failure by the Seller Representative perform any of their respective obligations, express or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount implied, with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorContract;
(eiii) the any failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear of any Lien Originator, Seller or Custodian to perform its duties, covenants or other than a Lien arising solely as a result obligations in accordance with the provisions of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables this Agreement or at any time thereafterother Transaction Document;
(fiv) any Dispute lawsuit or legal claim arising out of an Account Debtor or in connection with the Resorts and Units, any defect in a Vacation Club's ownership of title to, or leasehold rights in, the real property used in its business, any Obligor's right to use the Resorts and Units, or any rights or services that are the subject of any Contract;
(v) any products liability or similar claim arising out of or in connection with rights or services that are the subject of any Contract;
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, including a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the service or services rights related to any such Receivable or the furnishing of or failure to provide for such rights or furnish such goods or services;
(gvii) the commingling of Collections of Receivables at any time with other funds;
(viii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of a Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to any Originator, Seller, any Vacation Club or Custodian in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(ix) 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;
(x) any Amortization Event described in Section 5.1(d);
(xi) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any RTA Receivable and the Seller Representative Related Security and Collections with respect thereto from each RTA Seller, free and clear of any Adverse Claim; or any failure of Seller to perform its duties or obligations give reasonably equivalent value to each RTA Seller under the Transfer Agreement in accordance with the provisions consideration of the Transaction Documentstransfer by each RTA Seller of any RTA Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(hxii) any products liability claimfailure to vest and maintain vested in Buyer, personal injury or property damage suitto transfer to Buyer, environmental liability claim legal and equitable title to, and ownership of, the Receivables, the Related Security (and the Collections, free and clear of any Adverse Claim);
(xiii) the failure to have filed, or any delay in filing, Financing Statements or other claim similar instruments or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with documents under the goods or services that are the subject UCC of any Receivable applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xiv) any action or omission by Seller, WorldMark or Custodian which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable; excluding, however, and
(ixv) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action. Any Indemnified Amounts incurred by actions of the Custodian which are not paid by the Custodian to the extent directly resulting from gross negligence applicable Indemnified Party on or willful misconduct on before the part of such Indemnified Party, and (ii) any indemnification which has the effect of recourse to such Seller 30th day after a demand for non-payment of the Receivables Buyer is delivered to the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason Custodian shall be immediately payable by the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable lawBuyer.
Appears in 1 contract
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo that the Agent or the Purchasers, may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo (and its pay upon demand to) the Agent, each of the Purchasers and each of the respective assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called (each, an “Indemnified Party”), on demand, "INDEMNIFIED PARTY") from and against any and all damages, losses, claims, judgmentstaxes, liabilities liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent or another Indemnified Party) and disbursements (all of the foregoing being collectively called “Indemnified Amounts”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 followingacquisition, either directly or indirectly, by any Purchaser of an interest in the Receivables, EXCLUDING, HOWEVER:
(a) Indemnified Amounts to the transfer by extent a Seller final judgment of an interest in any Receivable to any Person other than Xxxxx Fargoa court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the breach extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(c) (i) taxes on or measured by the overall net income of such Indemnified Party imposed by the United States, the jurisdiction under the laws of which such Indemnified Party is incorporated or otherwise organized, in which such Indemnified Party is a resident for income tax purposes, or in which such Indemnified Party's principal executive office or lending office is located, in each case, including any political subdivision thereof, (ii) branch profits taxes, franchise taxes, or similar taxes imposed on the Indemnified Party, and (iii) other taxes imposed by any jurisdiction in which such Indemnified Party is subject to taxation for reasons other than the execution, delivery, performance, filing, recording, and enforcement of, and the other activities contemplated in this Agreement and the Indemnified Party's participation in the transactions contemplated by this Agreement, to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by any Purchaser, of Receivables as a loan or loans by any Purchaser, to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; PROVIDED, HOWEVER, that nothing contained in this sentence shall limit the liability of Seller or limit the recourse of any Purchaser, to Seller for amounts otherwise specifically provided to be paid by Seller under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify the Agent and the Purchasers, for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller) relating to or resulting from:
(i) any representation or warranty made by Seller or (to the extent Seller Representative actually receives indemnity under the Receivables Sale Agreement) the Originator (or any Seller officers of any such Person) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller such Person pursuant hereto or thereto thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(cii) the failure by Seller or (to the extent Seller Representative or any Seller actually receives indemnity under the Receivables Sale Agreement) the Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Related AssetContract related thereto, or the nonconformity of any Receivable or the Related Asset Contract included therein with any such applicable law, rule or regulation, regulation or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or (to the extent Seller actually receives indemnity under the Receivables Sale Agreement) any other circumstance beyond the control failure of the related Seller Originator to keep or the related Account Debtor;
(d) the failure by the Seller Representative perform any of its obligations, express or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount implied, with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorContract;
(eiii) any failure of Seller or (to the extent Seller actually receives indemnity under the Receivables Sale Agreement) the failure Originator to vest and maintain vested perform its duties, covenants or other obligations in Xxxxx Fargo a perfected security interest (as defined in accordance with the UCC) in the Purchased Receivables and the proceeds thereof, free and clear provisions of this Agreement or any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafterTransaction Document;
(fiv) any Dispute products liability, personal injury or damage suit, or other similar claim arising out of an Account Debtor or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(gvi) the commingling by Seller or (to the extent Seller actually receives indemnity under the Receivables Sale Agreement) by the Originator of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of any Purchase, the Purchased Assets or any other investigation, litigation or proceeding relating to Seller or (to the extent Seller actually receives indemnity under the Receivables Sale Agreement) the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Amortization Event of the type described in Section 9.1(g) with respect to any Seller Party;
(x) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any of the Seller Representative Purchased Assets from the Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Seller to perform its duties give reasonably equivalent value to the Originator under the Receivables Sale Agreement in consideration of the transfer by the Originator of any Receivable, or obligations 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 accordance with the provisions Agent for the benefit of the Purchasers or to transfer to the Agent for the benefit of the Purchasers, a valid first priority perfected security interests in the Purchased Assets, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(hxii) 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 Purchased Assets, and the proceeds thereof, whether at the time of any Purchase or at any subsequent time;
(xiii) any products liability claim, personal injury action or property damage suit, environmental liability claim omission by Seller which reduces or impairs the rights of the Agent or any other claim Purchaser with respect to any Purchased Assets or action the value of any Purchased Assets;
(xiv) any attempt by a party any Person to void any Purchase or the Agent's security interest in the Purchased Assets under statutory provisions or common law or equitable action;
(xv) the failure of whatever sortany Receivable included in the calculation of the Net Pool Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xvi) any civil penalty or fine assessed by OFAC against, whether in tort, contract or any other legal theory, arising out of or and all reasonable costs and expenses (including counsel fees and disbursements) incurred in connection with the goods defense thereof by Agent or services that are the subject of any Receivable with respect thereto; excluding, however, (i) Indemnified Amounts to the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises Purchaser as a result of a Credit Reason the funding of an Account Debtor. If for the Commitments or the acceptance of payments due under the Transaction Documents; and
(xvii) any reason payment required to be made by the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute Agent to the amount paid Collateral Agent under the Intercreditor Agreement or payable by such Indemnified Party to the maximum extent permitted Collateral Agent under applicable lawany Collection Account Agreement.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Wolverine Tube Inc)
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo and its assigns, officers, directors, employees and agents (each of the foregoing Persons being individually called an “Indemnified Party”), on demandwithin five Business Days following written demand therefor, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of the following:
(a) the transfer by a Seller of an interest in any Purchased Receivable to any Person other than Xxxxx FargoXxxxx;
(b) the breach of any representation or warranty made by the Seller Representative or any Seller under or in connection with this Agreement or any other Transaction DocumentDocument to which it is a party, or any information or report delivered by the Seller Representative or any Servicer (so long as Servicer is Seller or Parent) pursuant hereto or thereto which shall have been false or incorrect in any material respect when made or deemed made;
(c) the failure by the Seller Representative or any such Seller to comply in all material respects with any applicable law, rule or regulation with respect to any Purchased Receivable or Related Asset, or the nonconformity of any Purchased Receivable or the Related Asset with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(e) the failure to vest and maintain vested in Xxxxx Fargo a perfected security an ownership interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear of any Lien other than a Lien arising solely as a result of an act of Xxxxx FargoXxxxx, whether existing at the time of the purchase of such Purchased Receivables or at any time thereafter;
(fe) any Dispute of an Account Debtor to the payment of any Purchased Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Purchased Receivables or the related Contracts not being a legal, valid and binding obligation of such Account Debtor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, breach of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods or services related to any such Purchased Receivable or the furnishing of or failure to furnish such goods or services;
(gf) any failure of the Seller Representative or any Seller to perform its duties or obligations in accordance with the provisions of the Transaction DocumentsDocuments to which it is a party;
(hg) any products liability claim, personal injury or property damage suit, environmental liability claim or any other claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with the goods or services that are the subject of any Purchased Receivable with respect thereto; excluding, however, (i) Indemnified Amounts to the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises solely as a result of a Credit Reason an Insolvency Event of an Account DebtorDebtor and (iii) Indemnified Amounts otherwise recovered through the Repurchase Price. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable law.
Appears in 1 contract
Samples: Receivables Purchase Agreement (World Fuel Services Corp)
Indemnities by Seller. (a) Without limiting any other rights which Xxxxx Fargo that the Administrative Agent or any of the Purchasers may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo (and its pay upon demand to) the Administrative Agent and each of the Purchasers and their respective successors, assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called foregoing, an “Indemnified Party”), on demand, ) from and against any and all damages, losses, claims, judgmentsTaxes, liabilities liabilities, costs, reasonable expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ fees and disbursements of external counsel (all of the foregoing being collectively called 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 following:
(a) acquisition, either directly or indirectly, by the transfer by a Seller Administrative Agent or any Purchaser of an interest in any Receivable the Receivables excluding, however, in all of the foregoing instances:
A. Indemnified Amounts to any Person the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence, bad faith or willful misconduct on the part of an Indemnified Party;
B. Indemnified Amounts to the extent the same include losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness or financial inability or unwillingness to pay (other than Xxxxx Fargo;a dispute giving rise to a Dilution) of the related Obligor; or
C. Taxes (bwhich shall be governed by Sections 8.3 and 8.5); provided, however, that nothing contained in this sentence shall limit the liability of Seller or limit the recourse of the Administrative Agent or the Purchasers to Seller for amounts otherwise specifically provided to be paid by Seller under the terms of the Transaction Documents. Without limiting the generality of the foregoing indemnification, Seller shall indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to Seller) the breach of relating to or resulting from:
i. any representation or warranty made by the any Seller Representative Party or any Seller Originator (or any officers of any such Person) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any information or report required to be delivered by the Seller Representative or any Seller such Person pursuant hereto or thereto thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(c) ii. the failure by the any Seller Representative Party or any Seller Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Related AssetContract related thereto, or the nonconformity of any Receivable or the Related Asset Contract included therein with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations regulation or any other circumstance beyond the control failure of the related Seller any Originator to keep or the related Account Debtor;
(d) the failure by the Seller Representative perform any of its obligations, express or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount implied, with respect to any Purchased Receivable Contract;
iii. any failure of any Seller Party or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of any Transaction Document to which it is a party;
iv. any environmental liability, products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that has not been paid in full for are the subject of any reason Contract or any Receivable;
v. any dispute, claim, offset or defense (other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(e) the failure to vest and maintain vested discharge in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear of any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time bankruptcy of the purchase Obligor) of such Receivables or at any time thereafter;
(f) any Dispute of an Account Debtor the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(g) vi. the commingling of Collections of Receivables at any failure of the Seller Representative or any Seller to perform its duties or obligations in accordance time with the provisions of the Transaction Documentsother funds;
(h) vii. any products liability claiminvestigation, personal injury litigation or property damage suit, environmental liability claim proceeding related to or arising from this Agreement or any other claim or action by a party Transaction Document, the transactions contemplated hereby, the use of whatever sortthe proceeds of any Purchase, whether in tort, contract the ownership of the Receivable Interests or any other legal theoryinvestigation, arising out of litigation or proceeding relating to any Seller Party or any Originator in connection with the goods or services that are the subject of which any Receivable with respect thereto; excluding, however, (i) Indemnified Amounts to the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises Party becomes involved as a result of any of the transactions contemplated hereby;
viii. any inability to litigate any claim against any Obligor in respect of any Receivable as a Credit Reason result of an Account Debtorsuch Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
ix. If for any reason Amortization Event described in Section 7.1(g);
x. any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the indemnification provided above is unavailable Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Seller to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute give reasonably equivalent value to the amount paid applicable Originator under the Sale Agreement in consideration of the transfer by it of any Receivable, or payable any attempt by any Person to void such Indemnified Party transfer under statutory provisions or common law or equitable action;
xi. any failure to vest and maintain vested in the Administrative Agent (for the benefit of the Purchasers) a valid and perfected ownership interest (to the maximum extent permitted of the Receivable Interests) or a first priority perfected Security Interest in the Collateral, free and clear of any Adverse Claim (except as created by the Transaction Documents);
xii. the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable lawjurisdiction or other applicable laws with respect to any Collateral, whether on the date hereof or at any subsequent time, except to the extent such failure or delay is caused by the Administrative Agent;
xiii. any action or omission by any Seller Party which reduces or impairs the rights of the Administrative Agent or the Purchasers with respect to any Collateral or the value of any Collateral;
xiv. any attempt by any Person to void any Purchase or the Security Interest in the Collateral granted hereunder, whether under statutory provision, common law or equitable action; and
xv. the failure of any Receivable included in the calculation of the Investment Base as an Eligible Receivable to be an Eligible Receivable at the time so included.
Appears in 1 contract
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo that Purchaser may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo (and pay upon demand to) Purchaser and its assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called an “Indemnified Party”), on demand, a "SELLER INDEMNIFIED PARTY") from and against any and all damages, losses, claims, judgmentsCovered Taxes, liabilities liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of Purchaser or any such assign) and disbursements (all of the foregoing being collectively called “Indemnified Amounts”referred to as "SELLER INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or as a result any of the following:
(ai) the transfer by a Seller of an interest in any Receivable to any Person other than Xxxxx Fargo;
(b) the breach of any representation or warranty made by the Seller Representative (or any Seller officers of Seller) under or in connection with any Purchase Report, this Agreement Agreement, any other Transaction Document to which Seller is a party or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto for which Purchaser has not received a Purchase Price Credit that shall have been false or incorrect in any material respect when made or deemed made;
(cii) the failure by the Seller Representative or any Seller Seller, to comply with any applicable law, rule or regulation with respect to any Receivable or Related AssetContract related thereto, or the nonconformity of any Receivable or the Related Asset Contract included therein with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations regulation or any other circumstance beyond the control failure of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities keep or perform any VAT related the VAT Invoice Amount of its obligations, express or implied, with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorContract;
(eiii) any failure of Seller to perform its duties, covenants or other obligations in accordance with the failure provisions of this Agreement or any other Transaction Document to vest and maintain vested in Xxxxx Fargo which Seller is a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear of any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafterparty;
(fiv) any Dispute products liability, personal injury or damage, suit or other similar claim arising out of an Account Debtor or in connection with merchandise, insurance or services that are the subject of any Contract to which Seller is a party or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor or failure to pay due to financial inability) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(gvi) the commingling of Collections of Receivables at any failure of the Seller Representative or any Seller to perform its duties or obligations in accordance time with the provisions of the Transaction Documentsother funds;
(hvii) any products liability claiminvestigation, personal injury litigation or property damage suit, environmental liability claim proceeding related to or arising from this Agreement or any other claim or action by Transaction Document to which Seller is a party party, the transactions contemplated hereby, Seller's use of whatever sortthe proceeds of the Purchase from it hereunder, whether in tort, contract the ownership of the Receivables or any other legal theoryinvestigation, arising out of litigation or proceeding relating to Seller in connection with the goods or services that are the subject of which any Receivable with respect thereto; excluding, however, (i) Seller Indemnified Amounts to the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a Credit Reason result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any failure to vest and maintain vested in Purchaser, or to transfer to Purchaser, legal and equitable title to, and ownership of, the Receivables and the associated Collections, and all of Seller's right, title and interest in the Related Security associated with such Receivables (other than Excluded Items), in each case, free and clear of any Adverse Claim;
(x) 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 or the Related Security (other than Excluded Items) and Collections with respect thereto, and the proceeds of any thereof, whether at the time of the applicable Purchase from Seller hereunder or at any subsequent time;
(xi) any attempt by any Person to void any Purchase from Seller hereunder under statutory provisions or common law or equitable action; and
(xii) the failure of any Receivable that is reflected as an Account Debtor. If for Eligible Receivable on any reason Purchase Report prepared by Seller (or by Servicer on its behalf) to be an Eligible Receivable at the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable time acquired by such Indemnified Party to the maximum extent permitted under applicable law.Purchaser;
Appears in 1 contract
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo Agent or Purchaser may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo Agent or Purchaser and its assigns, their officers, directors, agents and employees and agents (each of the foregoing Persons being individually called an “"Indemnified Party”), on demand, ") from and against any and all damages, losses, claims, judgmentstaxes, liabilities liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “referred to as "Indemnified Amounts”") awarded against or incurred by any of them arising to the extent, but only to the extent, that such Indemnified Amounts arose out of or as a result of this Agreement or the following:
(a) the transfer acquisition, either directly or indirectly, by a Seller Purchaser of an interest in any Receivable the Receivables, excluding, however:
(i) Indemnified Amounts to any Person other than Xxxxx Fargothe extent final judgment of a court of competent jurisdiction holds such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(bii) Indemnified Amounts to the breach extent the same includes losses in respect of Receivables which are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes 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 the Seller or the Servicer or limit the recourse of Purchaser or Agent to the Seller or Servicer for amounts otherwise specifically provided to be paid by the Seller or the Servicer under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, the Seller shall indemnify Purchaser or Agent for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or Servicer) to the extent, but only to the extent, that such Indemnified Amounts) relate to or result from:
(i) any representation or warranty made by Seller or Servicer (or any officers of the Seller Representative or any Seller the Servicer) under or in connection with this Agreement Agreement, any Monthly Report, Daily Capital Report or any other Transaction Document, or any information or report delivered by Seller or the Seller Representative or any Seller Servicer pursuant hereto or thereto hereto, which shall have been false or incorrect in any material respect when made or deemed made;
(cii) the failure by the Seller Representative or any Seller the Servicer to comply in any material respect with any applicable law, rule or regulation with respect to any Receivable or Related AssetContract related thereto, or the nonconformity of any Receivable or the Related Asset with such Receivable
(iii) any such applicable law, rule or regulation, or resulting from an act material failure of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or Servicer to perform its duties or obligations in accordance with the related Account Debtorprovisions of this Agreement;
(div) any products liability or similar claim arising out of or in connection with merchandise, insurance or services which are the failure by the Seller Representative or subject of any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorContract;
(ev) the failure to vest and maintain vested in Xxxxx Fargo a perfected security interest any dispute, claim, offset or defense (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear of any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time discharge in bankruptcy of the purchase Obligor or any losses in respect of such Receivables the insolvency or at any time thereafter;
(flack of creditworthiness of the Obligor ) any Dispute of an Account Debtor the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(gvi) the commingling of Collections of Receivables at any failure of the Seller Representative or any Seller to perform its duties or obligations in accordance time with the provisions of the Transaction Documentsother funds;
(hvii) any products liability claiminvestigation, personal injury litigation or property damage suitproceeding to the extent, environmental liability claim but only to the extent, the same relates to or arises from this Agreement, the transactions contemplated hereby, the use of the proceeds of a Purchase, the ownership of the Receivable Interests or any other investigation, litigation or proceeding relating to the Seller in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty from any legal action, suit or action by a party of whatever sort, whether proceeding; and
(ix) any Servicer Default or Termination Event notwithstanding anything contained in tort, contract this Agreement or any other legal theoryTransaction Documents to the contrary, arising out of or in connection with it is expressly agreed and understood by the goods or services that are the subject of any Receivable with respect thereto; excluding, however, parties (i) Indemnified Amounts that no indemnification provision herein is intended to constitute a guarantee of the extent directly collectibility or payment of the Receivables or Receivable Interests sold hereunder and (ii) that nothing in any such provisions shall require Seller or Servicer or any Affiliate thereof to indemnify any indemnitee for damages, losses, claims or liabilities or related costs or expenses resulting from such indemnitee's gross negligence or willful misconduct on the part of such Indemnified Party, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable lawmisconduct.
Appears in 1 contract
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo may have hereunder or under applicable law, the (a) Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo indemnify, defend and its assignssave harmless the Buyer and Second Step Purchaser and their respective directors, officers, directorsshareholders, employees and agents (each of the foregoing Persons being individually called each, an “"Indemnified Party”"), forthwith on demand, from and against any and all damages, losses, claims, judgmentsdamages, liabilities liabilities, costs and related costs expenses (including, without limitation, all attorneys' fees and expenses, including reasonable attorneys’ fees expenses incurred by their respective credit recovery groups (or any successors thereto) and disbursements expenses of settlement, litigation or preparation therefor) which the Buyer or Second Step Purchaser may incur or which may be asserted against the Buyer or Second Step Purchaser by any Person (including, without limitation, any Obligor or any other Person whether on its own behalf or derivatively on behalf of Seller) (all of the foregoing being collectively called “referred to as "Losses"), excluding, however, (a) Losses to the extent resulting from the gross negligence or willful misconduct on the part of such Indemnified Amounts”Party, (b) awarded against recourse (except as otherwise provided in this Agreement) for Defaulted Receivables, (c) any Losses with respect to any tax, reserve, capital charge or expense related thereto (indemnification with respect to such Losses being provided as and to the extent provided in the Purchase Agreement), or (d) Losses, to the extent that such Losses resulted from an act or omission of the Servicer if the Servicer is not Seller or an Affiliate of Seller, arising from or incurred in connection with (i) any breach of a representation, warranty or covenant by Seller or Buyer made or deemed made hereunder or under the Purchase Agreement or in connection herewith or therewith or the transactions contemplated herewith or therewith, or (ii) any of them arising suit, action, claim, proceeding or governmental investigation, pending or threatened, whether based on statute, regulation or order, on tort, on contract or otherwise, before any Official Body, which arises out of or relates to the Transaction Documents, the Ownership Interest or the Participation Interest in the Receivables or related Contracts, or the use of the proceeds of the Receivables pursuant hereto or to the Purchase Agreement or the transactions contemplated hereby or thereby (all Losses, after giving effect to the limitations set forth in clauses (a) through (d) hereof, being hereinafter referred to as a result "Indemnified Amounts").
(b) Without limitation of the generality of Section 9.1(a), Seller shall pay on demand to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts relating to or resulting from any of the following:
(a1) the transfer by a Seller creation of an interest the Participation Interest in any Receivable to any Person other than Xxxxx Fargowhich is not at the date of the creation of such Ownership Interest an Eligible Receivable;
(b2) the breach of reliance on any representation or warranty made or deemed made by the Seller Representative (or any of its respective Responsible Officers) or any statement made by any Responsible Officer of Seller under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto which shall have been false or incorrect in any material respect when made or deemed made;
(c3) the failure by the Seller Representative or any Seller to comply with any applicable law, rule or regulation with respect to any Receivable or Related Asset, or the nonconformity of any Receivable or the Related Asset with any such applicable lawLaw, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(e4) the failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) Buyer the Ownership Interest in the Purchased Receivables and the proceeds Collections in respect thereof, free and clear of any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafterLien;
(f5) the failure to vest in the Second Step Purchaser the Participation Interest in the Receivables and Collections in respect thereof, free and clear of any Lien;
(6) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the Uniform Commercial Code of any applicable jurisdiction or under any other applicable Law with respect to the sale or contribution of the Receivables by Seller to Buyer;
(7) any Dispute dispute, claim, offset or defense (other than discharge in bankruptcy of an Account Debtor the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(g) 8) any failure of the Seller Representative or any Seller to perform its duties or obligations in accordance with the provisions of the Transaction Documentsthis Agreement;
(h9) any products liability claim, personal injury or property damage suit, environmental liability claim or any other claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with the goods merchandise, insurance or services that which are the subject of any Receivable with Contract; or
(10) any failure by Buyer to make any payment required by Section 11.03 of the Purchase Agreement.
(c) Promptly upon receipt by any Indemnified Party, hereunder of notice of the commencement of any suit, action, claim, proceeding or governmental investigation (an "Action"), such Indemnified Party shall, if a claim in respect thereto; excludingthereof is to be made against Seller hereunder, howevernotify Seller in writing of the commencement thereof. Seller may participate in the defense of any such Action at its expense, (i) and no settlement thereof shall be made without the approval of Seller and the Indemnified Amounts Party. The approval of Seller will not be unreasonably withheld or delayed. In case any Action shall be brought against any Indemnified Party, Seller shall be entitled to participate in and, to the extent directly resulting from gross negligence or willful misconduct on that it shall wish, to assume the part of such defense thereof, with counsel satisfactory to the Indemnified Party, and (ii) any indemnification which has the effect of recourse after notice from Seller to such Seller for non-payment of the Receivables to the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmlessof its election so to assume the defense thereof, then such Seller shall contribute not be liable to the amount paid such Indemnified Party for any legal or payable other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. In any such Action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) Seller and such Indemnified Party shall have mutually agreed in writing to the maximum extent permitted under applicable lawretention of such counsel or (ii) the named parties to any such Action (including any impleaded parties) include both Seller and such Indemnified Party and representation of both parties by the same counsel would be in appropriate due to actual or potential differing interests between them. It is understood that Seller shall not, in conjunction with any Action or related Actions in the same jurisdiction, be liable for the fees and expenses of more that one separate firm in addition to any local counsel for all such Indemnified Parties, unless (i) Seller and such Indemnified Parties shall have mutually agreed in writing to the retention of separate counsel or (ii) the named parties to any such Action (including any impleaded parties) include such Indemnified Parties and representation of such Indemnified Parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and that all such fees and expenses shall be reimbursed as they are incurred.
(d) The indemnity contained in this Section 9.1 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Sale Agreement (Exide Corp)
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo any such Person may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees agree to indemnify Xxxxx Fargo each of the Agent, Purchaser, SG, each of SG's Affiliates, their respective successors, transferees and its assigns, assigns and all officers, directors, shareholders, controlling persons, employees and agents (each of any of the foregoing Persons being individually called (each an “"Indemnified Party”"), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “referred to as "Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or any of the followingother Agreement Documents or the transactions contemplated thereby or the use of the proceeds by the Seller therefrom, including, without limitation, in respect of the ownership or funding of an Undivided Interest or in respect of any Receivable or any Contract, excluding, however, recourse (except as otherwise specifically provided in this Agreement) for Defaulted Receivables. Without limiting the foregoing, Seller shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(ai) the transfer by a Seller of an any interest in any Receivable to any Person other than Xxxxx Fargoan Undivided Interest;
(bii) the breach of any representation or warranty made by the Seller Representative (or any Seller of its officers) under or in connection with this Agreement Agreement, any Periodic Report or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto hereto, which shall have been false or incorrect in any material respect when made or deemed made;
(ciii) the failure by the Seller Representative or any Seller to comply with any applicable law, rule or regulation with respect to any Pool Receivable or Related Assetthe related Contract, or the nonconformity of any Pool Receivable or the Related Asset related Contract with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(eiv) the failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined Purchaser an undivided percentage ownership interest, to the extent of each Undivided Interest owned by it hereunder, in the UCC) in Receivables in, or purporting to be in, the Purchased Receivables and the proceeds thereofPool, free and clear of any Lien Adverse Claim, other than a Lien an Adverse Claim arising solely as a result of an act of Xxxxx Fargoa Purchaser or the Agent (when used in this clause (iv), an Adverse Claim shall include any lien for taxes whether accrued and payable or not), whether existing at the time of the purchase Purchase of such Receivables Undivided Interest or at any time thereafter;
(fv) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase, Reinvestment or at any subsequent time, or the failure of the Agent's or the Purchaser's interests in Pool Receivables to be perfected as a result of the failure to comply with the Federal Assignment of Claims Act, the laws of any foreign jurisdiction or otherwise;
(vi) any Dispute dispute, claim, offset or defense (other than discharge in bankruptcy) of an Account Debtor the Obligor to the payment of any Receivable in, or purported Receivable generated by purporting to be in, the Seller Representative or any Seller Receivables Pool (including, without limitation, a defense based on such Receivables Receivable's or the related Contracts Contract's not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(g) any failure of the Seller Representative or any Seller to perform its duties or obligations in accordance with the provisions of the Transaction Documents;
(hvii) any products liability claim, personal injury or property damage suit, environmental liability claim or any other claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with the goods merchandise or services that are the subject of any Receivable Pool Receivable; or
(viii) any tax or governmental fee or charge (but not including taxes upon or measured by net income), including withholding taxes, all interest and penalties thereon or with respect thereto; excluding, however, (i) Indemnified Amounts to the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and (ii) any indemnification all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which has the effect of recourse to such Seller for non-payment may arise by reason of the purchase or ownership of any Undivided Interest, or other interest in the Pool Receivables to the extent or in any loss arises as a result of a Credit Reason of an Account Debtorgoods which secure any such Pool Receivables. If for any reason the indemnification provided above is unavailable to an Indemnified Party shall have notice of any attempt to impose or is insufficient to hold collect any tax or governmental fee or charge for which indemnification will be sought from Seller hereunder, such Indemnified Party harmless, then shall give prompt and timely notice of such attempt to Seller and Seller shall contribute have the right, at its expense, to conduct or participate in any proceedings resisting or objecting to the amount paid imposition or payable by collection of any such Indemnified Party to the maximum extent permitted under applicable lawtax, governmental fee or charge.
Appears in 1 contract
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo that the Purchaser may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo the Purchaser and its assignseach officer, officersdirector, directors, employees employee and agents (each agent of the foregoing Persons being Purchaser (herein individually each called an “Indemnified Party” and collectively called the “Indemnified Parties”), on demand, ) from and against any and all damages, losses, claims, judgmentsdamages, liabilities and related costs and expensesreasonable expenses (including, including without limitation, reasonable attorneys’ fees and disbursements disbursements) and liabilities (all of the foregoing being collectively herein called the “Indemnified Amounts”) awarded against or incurred by any of them an Indemnified Party in connection with or arising out of the execution or as a result delivery of any of the followingTransaction Documents or the making of any Cash Investment pursuant hereto, the performance by the parties to any Transaction Document of their respective obligations thereunder or the use of the proceeds of any Cash Investment hereunder, excluding, however, in each of the foregoing instances:
(aA) Indemnified Amounts to the transfer by extent a Seller final judgment of an interest in any Receivable to any Person other than Xxxxx Fargoa court of competent jurisdiction holds that such Indemnified Amounts resulted solely from the gross negligence or willful misconduct on the part of the applicable Indemnified Party;
(bB) Indemnified Amounts to the breach extent the same includes losses in respect of Receivables that are uncollectible solely on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(C) Taxes (other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim); provided, however, that nothing contained in this Section shall limit the liability of Seller or limit the recourse of the Purchaser to Seller for amounts otherwise specifically provided to be paid by Seller under the terms of the Transaction Documents. Without limiting the generality of the foregoing indemnification, Seller shall indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to Seller) relating to or resulting from:
(i) any representation or warranty made by the any Seller Representative Party or any Seller Originator (or any officers of any such Person) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any information or report required to be delivered by the Seller Representative or any Seller such Person pursuant hereto or thereto thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(cii) the failure by the any Seller Representative Party or any Seller Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Related AssetContract related thereto, or the nonconformity of any Receivable or the Related Asset Contract included therein with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations regulation or any other circumstance beyond the control failure of the related Seller any Originator to keep or the related Account Debtor;
(d) the failure by the Seller Representative perform any of its obligations, express or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount implied, with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorContract;
(eiii) the any failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear of any Lien Seller Party or any Originator to perform its duties, covenants or other than obligations in accordance with the provisions of any Transaction Document to which it is a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafterparty;
(fiv) any Dispute environmental liability, products liability, personal injury or damage suit, or other similar claim arising out of an Account Debtor or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(gvi) the commingling of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of any Cash Investment, the ownership of the Receivables or any other investigation, litigation or proceeding relating to any Seller Party or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Amortization Event described in Section 7.1(g) or (h);
(x) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Seller Representative Related Security and Collections with respect thereto from any Originator, free and clear of any Lien (other than as created hereunder); or any failure of Seller to perform its duties give reasonably equivalent value to the applicable Originator under the Sale Agreement in consideration of the transfer by it of any Receivable, or obligations 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 accordance with the provisions Purchaser a valid and perfected ownership interest or a first priority perfected Security Interest in the Collateral, free and clear of any Lien (except as created by the Transaction Documents);
(hxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Collateral, whether on the date hereof or at any subsequent time, except to the extent such failure or delay is caused by the Purchaser;
(xiii) any products liability claim, personal injury action or property damage suit, environmental liability claim omission by any Seller Party which reduces or impairs the rights of the Purchaser with respect to any Collateral or the value of any Collateral (other claim than at the direction of the Purchaser and except as contemplated by the Transaction Documents);
(xiv) any attempt by any Person to void any Cash Investment or action by a party of whatever sortthe Security Interest in the Collateral granted hereunder, whether in tortunder statutory provision, contract common law or any other legal theory, arising out of or in connection with equitable action; and
(xv) the goods or services that are the subject failure of any Receivable with respect thereto; excluding, however, (i) Indemnified Amounts to included in the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment calculation of the Receivables Net Pool Balance as an Eligible Receivable to be an Eligible Receivable at the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable lawtime so included.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Sensient Technologies Corp)
Indemnities by Seller. (a) Without limiting any other rights which Xxxxx Fargo any RPA Indemnified Party (as defined below) may have hereunder or under applicable law, the Seller Representative and each Seller hereby severally agrees to indemnify Xxxxx Fargo WPS Finco, each of its successors, permitted transferees and its assigns, anx xxx officers, directors, shareholders, controlling Persons, employees and agents of any of the foregoing (each of the foregoing Persons being individually called an “a "RPA Indemnified Party”"), forthwith on demand, from and against any and all damages, losses, claimsclaims (whether on account of settlements or otherwise), judgments, liabilities and related reasonable costs and expenses, expenses (including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “Indemnified Amounts”disbursements) awarded against or incurred by any of them arising out of or as a result of any of the following:following (all of the foregoing being collectively called "RPA Indemnified Losses"):
(ai) the transfer by a Seller of an interest in any Receivable to any Person other than Xxxxx Fargo;
(b) the breach of any representation or warranty made in writing by the Seller Representative (or any Seller of its Authorized Officers) under or in connection with this Agreement any of the Transaction Documents, any Monthly Receivables Report, any Interim Receivables Report or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto which Servicer (for so long as Servicer is a WPS Person) shall have been false false, incorrect or incorrect in any material respect materially misleading when made or deemed mademade or omitted to state material facts necessary to make the statements made not misleading;
(cii) the failure by the Seller Representative or any Seller to comply with any applicable law, rule or regulation with respect to any Receivable or any Related AssetAsset or to comply with any Contract related thereto, or the nonconformity of any Receivable Receivable, the related Contract or the any Related Asset Assets with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(eiii) the failure to vest and maintain vested in Xxxxx Fargo WPS Finco and its assigns a first priority perfected security ownership interest (as defined in xx xxe Receivables, the UCC) in Related Assets, the Purchased Receivables related Collections and the proceeds thereofof each of the foregoing, free and clear of any Lien Adverse Claim (other than a Lien arising solely as a result an Adverse Claim created in favor of an act WPS Finco pursuant to this Purchase Agreement or in favor of Xxxxx FargoAgent on bexxxx of itself and Lenders pursuant to the Loan Agreement), whether existing at the time of the purchase sale of such Receivables Receivable or at any time thereafter;
(f) any Dispute of an Account Debtor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables or the related Contracts not being a legal, valid and binding obligation of such Account Debtor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods or services related to any such Receivable or the furnishing of or failure to furnish such goods or services;
(giv) any failure of the Seller Representative or any Seller to perform its duties or obligations in accordance with the provisions of the Transaction Documents;
(hv) any products liability claim, personal injury or property damage suit, environmental liability claim or any other claim or action by a party other than WPS Finco or a WPS Person of whatever sort, whether sounding in tort, contract coxxxxxt or any other legal theory, arising out of or in connection with the goods or services that are the subject of any Receivable or the Related Assets with respect thereto or Collections thereof;
(vi) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or the Related Assets or Collections, whether at the time of any sale or at any subsequent time;
(vii) any dispute, claim, offset or defense (other than the discharge in bankruptcy) of an Obligor to the payment of any Receivable or Related Asset, or Related Asset, 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 merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(viii) any tax or governmental fee or charge (other than franchise taxes and taxes on or measured by the net income of WPS Finco or any of its assignees), all interest and penalties thereon ox xxxh respect thereto, and all reasonable out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables or any Related Asset connected with any such Receivables or in any goods which secure any such Receivable or Related Asset;
(ix) any transfer by Seller of any interest in any Receivable other than the transfer of Receivables and related property by Seller to WPS Finco pursuant to this Purchase Agreement; excludingand
(x) any claim of breach by any Seller of any related Contract with respect to any Receivable.
(b) Notwithstanding the foregoing (and with respect to clause (ii) below, howeverwithout prejudice to the rights that WPS Finco may have pursuant to the other provisions of this Purchase Agrxxxxxt or the provisions of any of the other Transaction Documents), in no event shall any RPA Indemnified Party be indemnified for any RPA Indemnified Losses (i) Indemnified Amounts to the extent directly resulting from gross negligence or willful misconduct on the part of such RPA Indemnified Party, and (ii) any indemnification which has to the effect extent the same includes losses in respect of Receivables and reimbursement therefor that would constitute credit recourse to such Seller for non-payment the amount of any Receivable or Related Asset not paid by the Receivables related Obligor, (iii) resulting from the action or omission of Servicer (unless Servicer is a WPS Person), (iv) to the extent that the same are or result from lost profits (except to the extent any loss arises such lost profits are incurred under Section 3.3 of the Loan Agreement), (v) to the extent the same are or result from taxes on or measured by the net income of such RPA Indemnified Party and (vi) to the extent the same constitute consequential, special or punitive damages (except to the extent any such consequential, special or punitive damages are actually imposed on an RPA Indemnified Party as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable claim brought by such Indemnified Party to the maximum extent permitted under applicable lawa third party).
Appears in 1 contract
Samples: Receivables Purchase Agreement (Westpoint Stevens Inc)
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo that Buyer may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo Buyer and its assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called an ““ Indemnified Party”), on demand, ) from and against any and all damages, losses, claims, judgmentstaxes, liabilities liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called “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 following:
(a) the transfer acquisition, either directly or indirectly, by a Seller Buyer of an interest in any Receivable the Receivables, excluding, however:
(i) Indemnified Amounts to any Person other than Xxxxx Fargothe extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(bii) Indemnified Amounts to the breach 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 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. Without limiting the generality of the foregoing indemnification, Seller shall indemnify Buyer for Indemnified Amounts relating to or resulting from:
(1) any representation or warranty made by the Seller Representative or any Seller other Originator (or any officers of any such Person) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller such Person pursuant hereto or thereto thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(c2) the failure by the Seller Representative or any Seller other Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Related AssetContract related thereto, or the nonconformity of any Receivable or the Related Asset Contract included therein with any such applicable law, rule or regulation, regulation or resulting from an act any failure of God, civil strife, war, currency restrictions, foreign political restrictions or regulations Seller or any other circumstance beyond the control Originator to keep or perform any of the related Seller its obligations, express or the related Account Debtor;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount implied, with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorContract;
(e3) any failure of Seller or any other Originator to perform its duties, covenants or other obligations in accordance with the failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear provisions of this Agreement or any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafterTransaction Document;
(f4) any Dispute products liability, personal injury or damage suit or similar claim arising out of an Account Debtor or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(5) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(g6) the commingling of Collections of Receivables at any time with other funds;
(7) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby or thereby, the use of the proceeds of a Purchase, the ownership of the Receivables, or any other investigation, litigation or proceeding relating to Buyer, Seller or any other Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(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;
(9) any Amortization Event described in Section 5.1(d);
(10) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Seller Representative Related Security and Collections with respect thereto from any other Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Seller to perform its duties or obligations give reasonably equivalent value to the applicable Originator under the applicable Transfer Agreement in accordance with the provisions consideration of the Transaction Documentstransfer by the applicable Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(h11) any products liability claimfailure to vest and maintain vested in Buyer, personal injury or property damage suitto transfer to Buyer, environmental liability claim legal and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim;
(12) the failure to have filed, or any delay in filing, financing statements or other claim similar instruments or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with documents under the goods or services that are the subject UCC of any Receivable applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto; excluding, however, (i) Indemnified Amounts to the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and the proceeds of any thereof, whether at the time of the Purchase or at any subsequent time;
(ii13) any indemnification action or omission by Seller which has reduces or impairs the effect rights of recourse Buyer with respect to any Receivable or the value of any such Seller for non-payment of the Receivables Receivable; and
(14) any attempt by any Person to the extent void any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party Purchase hereunder under statutory provisions or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid common law or payable by such Indemnified Party to the maximum extent permitted under applicable lawequitable action.
Appears in 1 contract
Samples: Receivables Sale Agreement (Anixter International Inc)
Indemnities by Seller. (a) Without limiting any other rights which Xxxxx Fargo that the Administrative Agent or any Purchaser may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo (and its to pay, within 30 days after receipt of a reasonably detailed invoice) the Administrative Agent, the Liberty Street Administrator and each of the Purchasers and their respective assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called an “Indemnified Party”), on demand, ) from and against any and all damages, losses, claims, judgmentstaxes, liabilities liabilities, costs, reasonable expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ fees and disbursements of external counsel (all of the foregoing being collectively called 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 following:
(a) acquisition, either directly or indirectly, by the transfer by a Seller Administrative Agent, the Liberty Street Administrator or any Purchaser of an interest in any Receivable the Receivables excluding, however, in all of the foregoing instances:
(A) Indemnified Amounts to any Person other than Xxxxx Fargothe extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence, fraud or willful misconduct on the part of an Indemnified Party;
(bB) Indemnified Amounts to the breach extent the same include losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness or financial inability or unwillingness to pay (other than a dispute giving rise to a Dilution) of the related Obligor; or
(C) Excluded Taxes of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the Purchasers’ making of Investments in the Purchased Assets as a loan or loans by the Purchasers to Seller secured by the Pool Assets; provided, however, that nothing contained in this sentence shall limit the liability of Seller or limit the recourse of the Purchasers to Seller for amounts otherwise specifically provided to be paid by Seller under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to Seller) relating to or resulting from:
(i) any representation or warranty made by any Seller Party, the Seller Representative Performance Guarantor or any Seller Originator (or any officers of any such Person) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any information or report required to be delivered by the Seller Representative or any Seller such Person pursuant hereto or thereto thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(cii) the failure by the any Seller Representative Party or any Seller Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Related AssetContract related thereto, or the nonconformity of any Receivable or the Related Asset Contract included therein with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations regulation or any other circumstance beyond the control failure of the related Seller any Originator to keep or the related Account Debtor;
(d) the failure by the Seller Representative perform any of its obligations, express or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount implied, with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorContract;
(eiii) the any failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear of any Lien Seller Party, any Originator or the Performance Guarantor to perform its duties, covenants or other than obligations in accordance with the provisions of any Transaction Document to which it is a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafterparty;
(fiv) any Dispute environmental liability, products liability, personal injury or damage suit, or other similar claim arising out of an Account Debtor or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(gvi) the commingling of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Investment, the ownership of the Pool Assets or any Investment therein or any other investigation, litigation or proceeding relating to any Seller Party or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Amortization Event described in Section 7.1(g);
(x) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Seller Representative Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Seller to perform its duties give reasonably equivalent value to the applicable Originator under the Sale Agreement in consideration of the transfer by it of any Receivable, or obligations 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 accordance with the provisions Administrative Agent for the benefit of the Purchasers legal and equitable title to, and ownership of, a perfected ownership interest or first priority perfect security interest in the Pool Assets, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(hxii) 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 Pool Assets, whether on the date hereof or at any subsequent time, except to the extent such failure or delay is caused by the Administrative Agent;
(xiii) any products liability claimaction or omission by any Seller Party which reduces or impairs the rights of the Administrative Agent, personal injury the Liberty Street Administrator or property damage suit, environmental liability claim the Purchasers with respect to any Pool Assets or the value of any other claim Pool Assets;
(xiv) any attempt by any Person to void any Investment or action by a party of whatever sortthe security interest in the Pool Assets granted hereunder, whether in tortunder statutory provision, contract common law or any other legal theory, arising out of or in connection with equitable action; and
(xv) the goods or services that are the subject failure of any Receivable with respect thereto; excluding, however, (i) Indemnified Amounts to included in the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment calculation of the Receivables Net Pool Balance as an Eligible Receivable to be an Eligible Receivable at the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable lawtime so included.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Commercial Metals Co)
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo may have hereunder or under applicable law, the (a) Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo indemnify, defend and its assignssave harmless the Buyer and Second Step Purchaser and their respective directors, officers, directorsshareholders, employees and agents (each of the foregoing Persons being individually called each, an “"Indemnified Party”"), forthwith on demand, from and against any and all damages, losses, claims, judgmentsdamages, liabilities liabilities, costs and related costs expenses (including, without limitation, all attorneys' fees and expenses, including reasonable attorneys’ fees expenses incurred by their respective credit recovery groups (or any successors thereto) and disbursements expenses of settlement, litigation or preparation therefor) which the Buyer or Second Step Purchaser may incur or which may be asserted against the Buyer or Second Step Purchaser by any Person (including, without limitation, any Obligor or any other Person whether on its own behalf or derivatively on behalf of Seller) (all of the foregoing being collectively called “referred to as "Losses"), excluding, however, (a) Losses to the extent resulting from the gross negligence or willful misconduct on the part of such Indemnified Amounts”Party, (b) awarded against recourse (except as otherwise provided in this Agreement) for Defaulted Receivables, (c) any Losses with respect to any tax, reserve, capital charge or expense related thereto (indemnification with respect to such Losses being provided as and to the extent provided in the Purchase Agreement), or (d) Losses, to the extent that such Losses resulted from an act or omission of the Servicer if the Servicer is not Seller or an Affiliate of Seller, arising from or incurred in connection with (i) any breach of a representation, warranty or covenant by Seller or Buyer made or deemed made hereunder or under the Purchase Agreement or in connection herewith or therewith or the transactions contemplated herewith or therewith, or (ii) any of them arising suit, action, claim, proceeding or governmental investigation, pending or threatened, whether based on statute, regulation or order, on tort, on contract or otherwise, before any Official Body, which arises out of or relates to the Transaction Documents, the Ownership Interest or the Participation Interest in the Receivables or related Contracts, or the use of the proceeds of the Receivables pursuant hereto or to the Purchase Agreement or the transactions contemplated hereby or thereby (all Losses, after giving effect to the limitations set forth in clauses (a) through (d) hereof, ----------- --- being hereinafter referred to as a result "Indemnified Amounts").
(b) Without limitation of the generality of Section 9.1(a), Seller -------------- shall pay on demand to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts relating to or resulting from any of the following:
(a1) the transfer by a Seller creation of an interest the Participation Interest in any Receivable to any Person other than Xxxxx Fargowhich is not at the date of the creation of such Ownership Interest an Eligible Receivable;
(b2) the breach of reliance on any representation or warranty made or deemed made by the Seller Representative (or any of its respective Responsible Officers) or any statement made by any Responsible Officer of Seller under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto which shall have been false or incorrect in any material respect when made or deemed made;
(c3) the failure by the Seller Representative or any Seller to comply with any applicable law, rule or regulation with respect to any Receivable or Related Asset, or the nonconformity of any Receivable or the Related Asset with any such applicable lawLaw, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(e4) the failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) Buyer the Ownership Interest in the Purchased Receivables and the proceeds Collections in respect thereof, free and clear of any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafterLien;
(f5) the failure to vest in the Second Step Purchaser the Participation Interest in the Receivables and Collections in respect thereof, free and clear of any Lien;
(6) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the Uniform Commercial Code of any applicable jurisdiction or under any other applicable Law with respect to the sale or contribution of the Receivables by Seller to Buyer;
(7) any Dispute dispute, claim, offset or defense (other than discharge in bankruptcy of an Account Debtor the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(g) 8) any failure of the Seller Representative or any Seller to perform its duties or obligations in accordance with the provisions of the Transaction Documentsthis Agreement;
(h9) any products liability claim, personal injury or property damage suit, environmental liability claim or any other claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with the goods merchandise, insurance or services that which are the subject of any Receivable with respect theretoContract; excluding, however, or
(i) Indemnified Amounts to the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and (ii10) any indemnification which has the effect of recourse failure by Buyer to such Seller for non-make any payment required by Section 11.03 of the Receivables to the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable lawPurchase Agreement.
Appears in 1 contract
Samples: Sale Agreement (Exide Corp)
Indemnities by Seller. (a) Without limiting any other rights which Xxxxx Fargo that the Administrative Agent or any of the Purchasers may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo (and its pay upon demand to) the Administrative Agent and each of the Purchasers and their respective successors, assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called foregoing, an “Indemnified Party”), on demand, ) from and against any and all damages, losses, claims, judgmentsTaxes, liabilities liabilities, costs, reasonable expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ fees and disbursements of external counsel (all of the foregoing being collectively called 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 following:
(a) acquisition, either directly or indirectly, by the transfer by a Seller Administrative Agent or any Purchaser of an interest in any Receivable to any Person other than Xxxxx Fargo;
(b) the breach of any representation or warranty made by the Seller Representative or any Seller under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto which shall have been false or incorrect in any material respect when made or deemed made;
(c) the failure by the Seller Representative or any Seller to comply with any applicable law, rule or regulation with respect to any Receivable or Related Asset, or the nonconformity of any Receivable or the Related Asset with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(e) the failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear of any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafter;
(f) any Dispute of an Account Debtor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables or the related Contracts not being a legal, valid and binding obligation of such Account Debtor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods or services related to any such Receivable or the furnishing of or failure to furnish such goods or services;
(g) any failure of the Seller Representative or any Seller to perform its duties or obligations in accordance with the provisions of the Transaction Documents;
(h) any products liability claim, personal injury or property damage suit, environmental liability claim or any other claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with the goods or services that are the subject of any Receivable with respect thereto; excluding, however, in all of the foregoing instances:
(iA) Indemnified Amounts to the extent directly resulting a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence negligence, bad faith or willful misconduct on the part of such an Indemnified Party, and ;
(iiB) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables Indemnified Amounts to the extent any loss arises as the same include losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness or financial inability or unwillingness to pay (other than a result dispute giving rise to a Dilution) of a Credit Reason the related Obligor; or
(C) Taxes (which shall be governed by Sections 8.3 and 8.5); provided, however, that nothing contained in this sentence shall limit the liability of an Account DebtorSeller or limit the recourse of the Administrative Agent or the Purchasers to Seller for amounts otherwise specifically provided to be paid by Seller under the terms of the Transaction Documents. If for any reason Without limiting the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmlessgenerality of the foregoing indemnification, then such Seller shall contribute indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to the amount paid Seller) relating to or payable by such Indemnified Party to the maximum extent permitted under applicable law.resulting from:
Appears in 1 contract
Samples: Omnibus Amendment (Pool Corp)
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo any such Person may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo the Purchaser, the Lenders, the Agent, each of their respective Affiliates and its assigns, each of their respective officers, directors, shareholders, controlling persons, employees and agents (each of the foregoing Persons being individually called an a “Purchase and Sale Indemnified Party”), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of the following:
(a) the transfer by a Seller of an interest in any Transferred Receivable or Related Security to any Person other than Xxxxx Fargothe Purchaser;
(b) the breach of any representation or warranty made by the Seller Representative or any Seller under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto which shall have been false or incorrect in any material respect when made or deemed made;
(c) the failure by the Seller Representative or any Seller of its Affiliates to comply with any applicable law, rule or regulation with respect to any Receivable or Related Assetthe related Contract, or the nonconformity of any Receivable or the Related Asset related Contract with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative or any of Seller to remit own or hold sufficient rights in the software the license of which is the subject of any Transferred Receivable to the appropriate tax authorities extent necessary to cause such Transferred Receivable to (i) constitute a valid and binding obligation, enforceable by Seller against the applicable Obligor, (ii) be owned by Seller free and clear of any VAT related the VAT Invoice Amount with respect Adverse Claim and (iii) to any Purchased Receivable that has not been paid be transferable by Seller as contemplated in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtorthis Agreement;
(e) the failure to vest and maintain vested in Xxxxx Fargo a perfected security the Purchaser an ownership interest (as defined in the UCC) in the Purchased Transferred Receivables and the proceeds thereof, Related Security free and clear of any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafterAdverse Claim;
(f) the failure to file or any Dispute delay in filing, financing statements or other similar instruments or documents under the UCC of an Account Debtor any applicable jurisdiction or other applicable laws with respect to any Transferred Receivables or Related Security whether at the time of any purchase or at any subsequent time;
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods licensing of software, the sale of merchandise or services (maintenance or otherwise) related to any such Receivable or the furnishing of or failure to furnish such goods software, merchandise or services;
(gh) any claim, investigation, litigation or proceeding arising out of or in connection with merchandise or services that are the subject of any Receivable;
(i) any failure of the Seller Representative or any Seller Aspen to perform its duties or obligations in accordance with the provisions of the Transaction Documents, including, without limitation, any failure by Aspen to deliver any “Exchange Amount” to the Agent or delivery by the Servicer of the Agent of any “Collected FX Amount” (as each such term is defined in the Purchase and Sale Agreement);
(hj) the commingling by Seller of Collections of Receivables at any time with other funds;
(k) any products liability claim, personal injury litigation or property damage suit, environmental liability claim proceeding related to this Agreement or any other claim or action by a party the use of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with the goods or services that are the subject proceeds of any Receivable with respect theretoLoan; excluding, however, (i) Indemnified Amounts to the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable law.and
Appears in 1 contract
Samples: Purchase and Resale Agreement (Aspen Technology Inc /De/)
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo that Buyer may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called each, an “Indemnified Party”), on demand, ) from and against any and all damages, losses, claims, judgmentstaxes, liabilities liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of Buyer or any such assign) and disbursements (all of the foregoing being collectively called 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 followingacquisition, either directly or indirectly, by Buyer of an interest in the Receivables, excluding, however:
(a) Indemnified Amounts to the transfer by extent a Seller final judgment of an interest in any Receivable to any Person other than Xxxxx Fargoa court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the breach extent the same includes losses in respect of such Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(c) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Seller or limit the recourse of Buyer to Seller for amounts otherwise specifically provided to be paid by Seller under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify Buyer for Indemnified Amounts relating to or resulting from:
(i) any representation or warranty made by the Seller Representative (or any Seller officers of Seller) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto for which Buyer has not received a Deemed Collection that shall have been false or incorrect in any material respect when made or deemed made;
(cii) the failure by the Seller Representative or any Seller Seller, to comply with any applicable law, rule or regulation with respect to any Receivable or Related AssetContract related thereto, or the nonconformity of any such Receivable or the Related Asset Contract included therein with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations regulation or any other circumstance beyond the control failure of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities keep or perform any VAT related the VAT Invoice Amount of its obligations, express or implied, with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorContract;
(eiii) any failure of Seller to perform its duties, covenants or other obligations in accordance with the failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear provisions of this Agreement or any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafterTransaction Document;
(fiv) any Dispute products liability, personal injury or damage, suit or other similar claim arising out of an Account Debtor or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a (A) defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its termsterms and/or (B) a claim that the sale or other assignment of all or any part of Seller’s (or any of its assignees’) rights under the related Contract violates any anti-assignment clause contained therein), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(gvi) the commingling of Collections of Receivables any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of the Purchase from Seller, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Seller in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Termination Event described in Section 5.1(d);
(x) 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 the Seller Representative or any Seller to perform its duties or obligations in accordance with the provisions of the Transaction DocumentsAdverse Claim (other than any Adverse Claim permitted hereunder);
(hxi) any products liability claimthe failure to have filed, personal injury or property damage suit, environmental liability claim or any delay in filing, financing statements or other claim similar instruments or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with documents under the goods or services that are the subject UCC of any Receivable applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto; excluding, however, (i) Indemnified Amounts to the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and the proceeds of any thereof, whether at the time of the Purchase or at any subsequent time;
(iixii) any indemnification action or omission by Seller which has reduces or impairs the effect rights of recourse Buyer with respect to any Receivable or the value of any such Receivable;
(xiii) any attempt by any Person to void the Purchase from Seller for non-payment hereunder under statutory provisions or common law or equitable action; and
(xiv) any inability of the Receivables Buyer to the extent review any loss arises Contract or to exercise its rights under any Contract or this Agreement as a result of a Credit Reason of an Account Debtor. If for confidentiality provision in any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable lawContract.
Appears in 1 contract
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo and Purchaser (together with its assigns, officers, directors, employees agents, representatives, shareholders, counsel and agents (each of the foregoing Persons being individually called employees, each, an “Indemnified Party”), on demand, ) from and against any and all damages, losses, claims, judgmentslosses and liabilities (including, liabilities and related costs and expenseswithout limitation, including reasonable attorneys’ fees and disbursements fees) (all of the foregoing being collectively called referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result resulting from any of the following:
: (ai) the transfer by a Seller sale to Purchaser of an interest in any Receivable as to any Person other than Xxxxx Fargo;
which the representations and warranties made herein are not all true and correct on the Purchase Date therefor; (bii) the breach of any representation or warranty made by the Seller Representative (or any Seller of its respective officers) under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by (except with respect to the Seller Representative or any Seller pursuant hereto or thereto Purchased Receivables) which shall have been false or incorrect in any material respect when made or deemed made;
; (ciii) the failure by the Seller Representative or any Seller Servicer to comply with any applicable law, rule or regulation with respect to any Receivable or Related Asset, or the nonconformity of any Receivable or the Related Asset with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
Purchased Receivable; (d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(eiv) the failure to vest and maintain vested in Xxxxx Fargo Purchaser a perfected security interest (as defined in the UCC) in the each Purchased Receivables Receivable and other Sold Assets and the proceeds thereof, and Collections in respect thereof free and clear of any Lien liens or encumbrances of any kind or nature whatsoever (other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafter;
those granted to Purchaser under this Agreement); (fv) any Dispute of an Account Debtor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables or the related Contracts not being a legal, valid and binding obligation of such Account Debtor enforceable against it in accordance with its terms), or any other claim arising related to such Purchased Receivable (or any portion thereof) excluding any Dispute or claim that (A) relates to the acts or omissions of the Purchaser which are (x) in material violation of applicable law relating to such action or omission or (y) in material breach of its obligations hereunder, (B) does not relate to the acts or omissions of the Seller, the Servicer or any of their Affiliates, (C) does not relate to the transfer of such Purchased Receivable from the breach, as of Seller to the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from Purchaser and (D) does not relate to the goods or services related to that are the subject of such Purchased Receivables; (vi) except as otherwise expressly provided in this Agreement or in any such Receivable or the furnishing of or failure to furnish such goods or services;
(g) any failure of the other Transaction Documents, the commingling by Seller Representative of Collections at any time with other funds of Seller or any Seller to perform its duties or obligations in accordance with the provisions of the Transaction Documents;
other Person; (hvii) any products liability claim, personal injury or property damage suit, environmental liability claim or any other claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with the goods or services that are the subject of any Purchased Receivable with respect thereto; excluding(viii) this Agreement and the transactions contemplated hereby and the purchases of the Purchased Receivables by Purchaser pursuant to the terms hereof, howeverexcluding any Dispute or claim that (A) relates to the acts or omissions of the Purchaser which are (x) in material violation of applicable law relating to such action or omission or (y) in material breach of its obligations hereunder, (iB) Indemnified Amounts does not relate to the acts or omissions of the Seller, the Servicer or any of their Affiliates, (C) does not relate to the transfer of such Purchased Receivable from the Seller to the Purchaser and (D) does not relate to the goods or services that are the subject of such Purchased Receivables; (ix) any currency restrictions or foreign political restrictions or regulations; (x) any failure by: (A) any Person who is not a party to the Intercreditor Agreement and to whom Seller, Originator or Servicer directs or furnishes payment, or (B) HSBC Bank USA, National Association or any of its successors, assigns or agents, to pay over to Purchaser reasonably promptly any Collections on account of Purchased Receivables received by it; (xi) any breach by Seller, Originator or any of their affiliates of that certain letter dated March 11, 2016 from Originator and Wise Alloys Funding LLC to Purchaser regarding the termination of the receivables purchase facility between Wise Alloys Funding LLC and HSBC Bank USA, National Association; or (xii) the failure of Seller to perform any of its obligations under this Agreement or any of the other Transaction Documents. The foregoing indemnification shall not apply in the case any claims, losses or liabilities to the extent directly resulting solely from (1) the gross negligence or willful misconduct on of an Indemnified Party as determined in a final non-appealable judgment by a court of competent jurisdiction, (2) lack of credit worthiness of the part related Account Debtor or an Account Debtor Insolvency Event or (3) acts or omissions of the Purchaser (A) which are (x) in material violation of applicable law relating to such action or omission or (y) in material breach of its obligations hereunder, (B) which do not relate to the acts or omissions of the Seller, the Servicer or any of their Affiliates, (C) which do not relate to the transfer of such Indemnified Party, Purchased Receivable from the Seller to the Purchaser and (iiD) any indemnification which has do not relate to the effect goods or services that are the subject of recourse such Purchased Receivables, (4) taxes imposed on Purchaser under FATCA, or (5) with respect to such Seller for non-payment the occurrence of the Receivables events set forth in clauses (i), (iii), (iv), (v) or (vi) above, to the extent any loss arises as a result of a Credit Reason of an Account Debtorsuch Purchased Receivable has been repurchased by the Seller. If for any reason Amounts due hereunder shall accrue interest at the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable lawDelinquent Rate.
Appears in 1 contract
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo the Purchaser Representative and its assigns, each Purchaser (together with their officers, directors, employees agents, representatives, shareholders, counsel and agents (each of the foregoing Persons being individually called employees, each, an “Indemnified Party”), on demand, ) from and against any and all damages, losses, claims, judgmentslosses and liabilities (including, liabilities and related costs and expenseswithout limitation, including reasonable attorneys’ fees and disbursements fees) (all of the foregoing being collectively called referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result resulting from any of the following:
: (ai) the transfer by a Seller sale to such Purchaser of an interest in any Receivable as to any Person other than Xxxxx Fargo;
which the representations and warranties made herein are not all true and correct on the Purchase Date therefor; (bii) the breach of any representation or warranty made by the Seller Representative (or any Seller of its respective officers) under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by (except with respect to the Seller Representative or any Seller pursuant hereto or thereto Purchased Receivables) which shall have been false or incorrect in any material respect when made or deemed made;
; (ciii) the failure by the Seller Representative or any Seller Servicer to comply with any applicable law, rule or regulation with respect to any Receivable or Related Asset, or the nonconformity of any Receivable or the Related Asset with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
Purchased Receivable; (d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(eiv) the failure to vest and maintain vested in Xxxxx Fargo each Purchaser a perfected security interest (as defined in the UCC) in the each Purchased Receivables Receivable and other Sold Assets and the proceeds thereofand Collections in respect thereof sold or assigned to such Purchaser hereunder, free and clear of any Lien liens or encumbrances of any kind or nature whatsoever (other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at those granted to the time of the purchase of such Receivables or at any time thereafter;
Purchasers under this Agreement); (fv) any Dispute of an Account Debtor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables or the related Contracts not being a legal, valid and binding obligation of such Account Debtor enforceable against it in accordance with its terms), or any other claim arising related to such Purchased Receivable (or any portion thereof) excluding any Dispute or claim that (A) relates to the acts or omissions of such Purchaser which are (x) in material violation of applicable law relating to such action or omission or (y) in material breach of its obligations hereunder, (B) does not relate to the acts or omissions of the Seller, the Servicer or any of their Affiliates, (C) does not relate to the transfer of such Purchased Receivable from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from Seller to such Purchaser and (D) does not relate to the goods or services related to that are the subject of such Purchased Receivables; (vi) except as otherwise expressly provided in this Agreement or in any such Receivable or the furnishing of or failure to furnish such goods or services;
(g) any failure of the other Transaction Documents, the commingling by Seller Representative of Collections at any time with other funds of Seller or any Seller to perform its duties or obligations in accordance with the provisions of the Transaction Documents;
other Person; (hvii) any products liability claim, personal injury or property damage suit, environmental liability claim or any other claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with the goods or services that are the subject of any Purchased Receivable with respect thereto; excluding(viii) this Agreement and the transactions contemplated hereby and the purchases of the Purchased Receivables by such Purchaser pursuant to the terms hereof, howeverexcluding any Dispute or claim that (A) relates to the acts or omissions of such Purchaser which are (x) in material violation of applicable law relating to such action or omission or (y) in material breach of its obligations hereunder, (iB) Indemnified Amounts does not relate to the acts or omissions of the Seller, the Servicer or any of their Affiliates, (C) does not relate to the transfer of such Purchased Receivable from the Seller to such Purchaser and (D) does not relate to the goods or services that are the subject of such Purchased Receivables; (ix) any currency restrictions or foreign political restrictions or regulations; (x) any failure by: (A) any Person who is not a party to the Intercreditor Agreement and to whom Seller, Originator or Servicer directs or furnishes payment, or (B) HSBC Bank USA, National Association or any of its successors, assigns or agents, to pay over to such Purchaser reasonably promptly any Collections on account of Purchased Receivables received by it; (xi) any breach by Seller, Originator or any of their affiliates of that certain letter dated March 11, 2016 from Originator and Wise Alloys Funding LLC to HCA regarding the termination of the receivables purchase facility between Wise Alloys Funding LLC and HSBC Bank USA, National Association; or (xii) the failure of Seller to perform any of its obligations under this Agreement or any of the other Transaction Documents. The foregoing indemnification shall not apply in the case any claims, losses or liabilities to the extent directly resulting solely from (1) the gross negligence or willful misconduct on of the part Indemnified Party making a claim hereunder as determined in a final non-appealable judgment by a court of competent jurisdiction, (2) lack of credit worthiness of the related Account Debtor or an Account Debtor Insolvency Event or (3) acts or omissions of such Indemnified PartyPurchaser (A) which are (x) in material violation of applicable law relating to such action or omission or (y) in material breach of its obligations hereunder, (B) which do not relate to the acts or omissions of the Seller, the Servicer or any of their Affiliates, (C) which do not relate to the transfer of such Purchased Receivable from the Seller to such Purchaser and (iiD) any indemnification which has do not relate to the effect goods or services that are the subject of recourse such Purchased Receivables, (4) taxes imposed on a Purchaser under FATCA, or (5) with respect to such Seller for non-payment the occurrence of the Receivables events set forth in clauses (i), (iii), (iv), (v) or (vi) above, to the extent any loss arises as a result of a Credit Reason of an Account Debtorsuch Purchased Receivable has been repurchased by the Seller. If for any reason Amounts due hereunder shall accrue interest at the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable lawDelinquent Rate.
Appears in 1 contract
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo that the Purchaser or the other Purchaser Indemnified Parties may have hereunder or under applicable lawApplicable Law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo and hold harmless each Purchaser and its respective assigns, participants, officers, directors, employees and agents (each of the foregoing Persons being individually called an a “Purchaser Indemnified Party”), on upon demand, from and against any and all damageslosses, lossesliabilities, claims, damages, judgments, liabilities taxes and related costs and expenses, (including reasonable attorneys’ fees and disbursements incurred by the Purchaser) (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any of them arising out of of, related to or as a result of the followingresulting from:
(a) the transfer by a Seller of an interest in any Receivable to any Person other than Xxxxx Fargo;
(b) the breach of any representation or warranty made by the Seller Representative or any a Seller under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto which shall have been false or incorrect in any material respect when made or deemed made;
(cb) the failure by the Seller Representative or any Seller to comply with any applicable law, rule or regulation with respect to any Receivable or Related Asset, or the nonconformity of any Receivable or the Related Asset with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(e) the failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear of any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafter;
(f) any Dispute of an Account Debtor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables or the related Contracts not being a legal, valid and binding obligation of such Account Debtor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods or services related to any such Receivable or the furnishing of or failure to furnish such goods or services;
(g) any failure of the Seller Representative or any Seller to perform its duties duties, covenants or obligations in accordance with the provisions hereof or of the Transaction Documents;
(hc) the commingling of any collections of, or other amounts or items received with respect to, the Purchased Receivables at any time with other funds or any set-off, intercreditor, conflicting Adverse Claims (or other interests) or similar issues with respect to any Purchased Receivables, Contracts, Ancillary Rights, related bank, deposit or securities accounts, or proceeds of any of the foregoing; or
(d) any products liability claiminvestigation, personal injury litigation, proceeding (actual or property damage suitthreatened), environmental liability claim or Dispute arising out of, related to or resulting from (i) this Agreement or any other claim Transaction Document or action by a party the use of whatever sortproceeds of any purchase hereunder or (ii) any Purchased Receivable, whether in tortContracts or Ancillary Rights, contract or any other legal theoryObligor, arising out of Remarketer or in connection with the goods or services that are the subject of any Receivable with respect theretoSupplier; excluding, however, (i) Indemnified Amounts to the extent directly resulting from (i) breach of a covenant or undertaking in any Transaction Document, gross negligence negligence, bad faith or willful misconduct on the part of such any Purchaser Indemnified Party, and Party or (ii) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises as a result of a Credit Reason of an Account DebtorRisk Event. If for any reason the indemnification provided above is unavailable to an a Purchaser Indemnified Party or is insufficient to hold such Purchaser Indemnified Party harmless, then such Seller IBM shall contribute to the amount paid or payable by such Purchaser Indemnified Party to the maximum extent permitted under applicable lawApplicable Law. Notwithstanding anything to the contrary herein, Seller will not, under any circumstances, be liable for (i) special, incidental, exemplary, indirect, punitive or economic consequential damages, or lost profits, business, revenue, goodwill or anticipated savings, or (ii) loss of, or damage to, data, in each case of clause (i) and (ii), (x) regardless of whether any person shall have been advised of the possibility thereof or of the form of action in which such damages or losses may be claimed, and (y) except to the extent otherwise indemnifiable hereunder and which the indemnified party is obligated to pay to a third party. For purposes of this Agreement (including this Section 12.1), reasonable attorneys’ fees incurred by any party entitled to indemnification hereunder shall be deemed to constitute direct damages. Notwithstanding anything to the contrary herein, in no event shall Purchaser be permitted to seek, or be entitled to, indemnification pursuant to this Section 12.1 in respect of the value of a Purchased Receivable that has been repurchased in accordance with Section 9.1. Notwithstanding anything to the contrary herein, the entire aggregate liability of IBM and its Affiliates for all claims under the Transaction Documents related to Seller’s performance of the Administrative and Collection Functions and any breach of any representation or warranty made by Seller under this Agreement or any other Transaction Document shall not exceed $1,000,000,000.00 (One Billion USD); provided that this limitation shall not apply to any Indemnified Amounts, other claims or other liability arising out of, related to or resulting from Section 2.5, Section 9.1 or Section 3 of Exhibit A hereof.
Appears in 1 contract
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo that Buyer may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called an “Indemnified Party”), on demand, "INDEMNIFIED PARTY") from and against any and all damages, losses, claims, judgmentstaxes, liabilities liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable and actual attorneys’ ' fees (which attorneys may be employees of Buyer or any such assign) and disbursements (all of the foregoing being collectively called “Indemnified Amounts”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 followingacquisition, either directly or indirectly, by Buyer of an interest in the Receivables, EXCLUDING, HOWEVER:
(a) Indemnified Amounts to the transfer extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification provided that Seller 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 a or against such Indemnified Person with respect to which Seller is an adverse party and Seller is the prevailing party with respect to such claim under such cause of an interest in any Receivable to any Person other than Xxxxx Fargoaction;
(b) Indemnified Amounts to the breach extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(c) taxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party; PROVIDED, HOWEVER, that nothing contained in this sentence shall limit the liability of Seller or limit the recourse of Buyer to Seller for amounts otherwise specifically provided to be paid by Seller under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, but subject in each case to clauses (a), (b) and (c) above, Seller shall indemnify Buyer for Indemnified Amounts relating to or resulting from:
(i) any representation or warranty made by the Seller Representative (or any Seller officers of Seller) under or in connection with any Purchase Report, this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto for which Buyer has not received a Purchase Price Credit that shall have been false or incorrect in any material respect when made or deemed made;
(cii) the failure by the Seller Representative or any Seller Seller, to comply with any applicable law, rule or regulation with respect to any Receivable or Related AssetContract related thereto, or the nonconformity of any Receivable or the Related Asset Contract included therein with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations regulation or any other circumstance beyond the control failure of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities keep or perform any VAT related the VAT Invoice Amount of its obligations, express or implied, with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorContract;
(eiii) any failure of Seller to perform its duties, covenants or other obligations in accordance with the failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear provisions of this Agreement or any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafterTransaction Document;
(fiv) any Dispute products liability, personal injury or damage, suit or other similar claim arising out of an Account Debtor or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(gvi) the commingling of Collections of Receivables at any failure of the Seller Representative or any Seller to perform its duties or obligations in accordance time with the provisions of the Transaction Documentsother funds;
(hvii) any products liability claiminvestigation, personal injury litigation or property damage suit, environmental liability claim proceeding related to or arising from this Agreement or any other claim or action by a party Transaction Document, the transactions contemplated hereby, Seller's use of whatever sortthe proceeds of the Purchase from it hereunder, whether in tort, contract the ownership of the Receivables or any other legal theoryinvestigation, arising out of litigation or proceeding relating to Seller in connection with the goods or services that are the subject of which any Receivable with respect thereto; excluding, however, (i) Indemnified Amounts to the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a Credit Reason result of an Account Debtor. If such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Termination Event described in SECTION 5.1(E)(II) of this Agreement or the First Step Receivables Sale Agreement;
(x) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables and the associated Collections, and all of Seller's right, title and interest in the Related Security associated with such Receivables, in each case, free and clear of any Adverse Claim;
(xi) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of the Purchase from Seller hereunder or at any subsequent time;
(xii) any action or omission by Seller which reduces or impairs the rights of Buyer with respect to any Receivable or the value of any such Receivable (for any reason other than the indemnification provided above is unavailable application of Collections thereto or charge-off of any Receivable as uncollectible);
(xiii) any attempt by any Person to void the Purchase from Seller hereunder under statutory provisions or common law or equitable action; and
(xiv) the failure of any Receivable reflected as an Indemnified Party or is insufficient Eligible Receivable on any Purchase Report prepared by Seller to hold such Indemnified Party harmless, then such Seller shall contribute to be an Eligible Receivable at the amount paid or payable time acquired by such Indemnified Party to the maximum extent permitted under applicable lawBuyer.
Appears in 1 contract
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo that --------------------- any Seller Indemnified Party (as defined below) may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo Buyer, each of its successors, permitted transferees and its assignsassigns (including Trustee), each Investor Certificateholder, each Successor Servicer, and all officers, directors, shareholders, controlling Persons, employees and agents of any of the foregoing (each of the foregoing Persons being individually called an “a "Seller Indemnified Party”"), forthwith on demand, from and against any and all damages, losses, claimsclaims (whether on account of settlements or otherwise), judgments, liabilities and related reasonable costs and expenses, expenses (including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “Indemnified Amounts”disbursements) awarded against or incurred by any of them arising out of of, in connection with, or as a result of any of the following:following (all of the foregoing being collectively called "Seller Indemnified Losses"):
(a) any representation or warranty by Seller (or any of its Authorized Officers) under any of the transfer Transaction Documents, any Purchase Report or any other information or report delivered by or on behalf of Seller with respect to Seller or the Purchased Assets (including without limitation any representation, warranty, information or report relied upon by Buyer in connection with the offering or sale of any Certificate), that contained any untrue statement of a Seller material fact or omitted to state a material fact necessary to make the statements, in the light of an interest in any Receivable to any Person other than Xxxxx Fargo;the circumstances under which they were made, not misleading,
(b) the breach of any representation or warranty made by the Seller Representative or any Seller under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto which shall have been false or incorrect in any material respect when made or deemed made;
(c) the failure by the Seller Representative or any Seller to comply with any applicable law, rule or regulation with respect to any Receivable Purchased Asset or Related Assetto comply with any Obligor Loan Agreement related thereto, or the nonconformity of any Receivable Purchased Asset or the Related Asset Obligor Loan Agreement with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;,
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(ec) the failure to vest and maintain vested in Xxxxx Fargo Buyer ownership of or a first priority perfected security interest (as defined in the UCC) in in, the Purchased Receivables and the proceeds thereofAssets, free and clear of any Lien Adverse Claim (other than a Lien arising solely as a result an Adverse Claim created in favor of an act Buyer or its Assignee pursuant to this Agreement or in favor of Xxxxx FargoTrustee pursuant to the Pooling Agreement), whether existing at the time of the purchase sale of such Receivables Purchased Asset or at any time thereafter;thereafter and without regard to whether such Adverse Claim was a Permitted Adverse Claim,
(f) any Dispute of an Account Debtor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables or the related Contracts not being a legal, valid and binding obligation of such Account Debtor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods or services related to any such Receivable or the furnishing of or failure to furnish such goods or services;
(gd) any failure of the Seller Representative or any Seller to perform its duties or obligations in accordance with the provisions of the Transaction Documents;,
(he) any products liability claim, personal injury or property damage suit, environmental liability claim or any other claim or action by a party other than Buyer of whatever sort, whether sounding in tort, contract or any other legal theory, arising out of or in connection with the goods or services that are the subject of any Receivable Purchased Assets with respect thereto; excluding, however, (i) Indemnified Amounts to the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable law.,
Appears in 1 contract
Samples: Purchase and Sale Agreement (Healthcare Financial Partners Inc)
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo any such Person may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo each of the Administrative Agent, each Purchaser, BofA, each of BofA's Affiliates, their respective successors, transferees and its assigns, assigns and all officers, directors, shareholders, controlling persons, employees and agents (each of any of the foregoing Persons being individually called (each an “"Indemnified Party”"), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable and documented attorneys’ ' fees and disbursements (all of the foregoing being collectively called “referred to as "Indemnified Amounts”") awarded against or incurred by any of them arising out of or related to this Agreement or the ownership or funding of an Undivided Interest (or portion thereof) or in respect of any Receivable or any Contract, excluding, however, (a) Indemnified Amounts to the extent that a court of competent jurisdiction determined that they resulted from gross negligence or willful misconduct on the part of such Indemnified Party or (b) recourse (except as a result of otherwise specifically provided in this Agreement) for Defaulted Receivables. Without limiting the followingforegoing, Seller shall indemnify each Indemnified Party for Indemnified Amounts relating to or arising out of:
(ai) the transfer by a Seller of an any interest in any Pool Receivable to any Person other than Xxxxx Fargoan Undivided Interest;
(bii) the breach of fact that any representation or warranty made by the Seller Representative (or any Seller of its officers) under or in connection with this Agreement Agreement, any Periodic Report or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto which shall have been false or incorrect in any material respect when made or deemed made;
(ciii) the failure by the Seller Representative or any Seller to comply with any applicable law, rule or regulation with respect to any Pool Receivable or Related Assetthe related Contract, or the nonconformity of any Pool Receivable or the Related Asset related Contract with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(eiv) the failure to vest and maintain vested in Xxxxx Fargo a perfected security interest each Purchaser (as defined or in the UCCAdministrative Agent, for the benefit of each Purchaser) an undivided percentage ownership interest, to the extent of each Undivided Interest owned by it hereunder, in the Purchased Receivables and in, or purporting to be in, the proceeds thereofReceivables Pool, free and clear of any Lien Adverse Claim, other than a Lien an Adverse Claim arising solely as a result of an act of Xxxxx Fargosuch Purchaser, any assignee from such Purchaser or the Administrative Agent (when used in this clause (iv), an Adverse Claim shall include any lien for taxes whether accrued and payable or not), whether existing at the time of the purchase any Purchase of such Receivables Undivided Interest or at any time thereafter;
(fv) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or Reinvestment or at any time thereafter, unless such failure or delay is caused by the Administrative Agent's or a Purchaser's wrongful refusal to sign any such financing statement or similar instrument or document;
(vi) any Dispute dispute, claim, offset, discount, allowance or defense (other than discharge in bankruptcy) of an Account Debtor the Obligor to the payment of any Receivable in, or purported Receivable generated by purporting to be in, the Seller Representative or any Seller Receivables Pool (including, without limitation, a defense based on such Receivables Receivable's or the related Contracts Contract's not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(gvii) any failure of the Seller Representative or any Seller to perform its duties or obligations in accordance with the provisions of the Transaction Documents;
(h) any products liability claim, personal injury or property damage suitproducts, environmental liability liability, hazardous material, nuisance or other tort claim or any other claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with the goods merchandise or services that are the subject of any Receivable Pool Receivable;
(viii) the commingling of any Collections with other funds of Seller;
(ix) any claim or Adverse Claim related to Consigned Inventory; and
(x) any 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; excluding, howeverand 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 any Undivided Interest (i) or any portion thereof), or other interest in the Pool Receivables or in any goods which secure any such Pool Receivables. If any Indemnified Amounts Party shall have notice of any attempt to impose or collect any tax or governmental fee or charge for which indemnification will be sought from Seller hereunder, such Indemnified Party shall give prompt and timely notice of such attempt to Seller and Seller shall have the right, at its expense, to conduct or participate in any proceedings resisting or objecting to the extent directly resulting from gross negligence imposition or willful misconduct on collection of any such tax, governmental fee or charge. Any Indemnified Party that has received an indemnity pursuant to this clause (x) shall cooperate, at Seller's request, with Seller to recover the part amount of any such tax, governmental fee or charge, provided that such cooperation shall be at Seller's expense and shall not, in such Indemnified Party's reasonable judgment, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold adversely affect such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable lawParty's tax position.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Terra Industries Inc)
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo that the Agent, the Managing Agents or any Purchaser may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo (and its pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called an “Indemnified Party”), on demand, ) from and against any and all damages, losses, claims, judgmentstaxes, liabilities liabilities, out-of-pocket costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively called 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 followingacquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, excluding, however:
(a) Indemnified Amounts to the transfer by extent a Seller final judgment of an interest in any Receivable to any Person other than Xxxxx Fargoa court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the breach extent the same include losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor;
(c) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; or
(d) Indemnified Amounts to the extent they resulted from an action brought by any Indemnified Party against any other Indemnified Party not involving any Seller Party, Originator or any Subsidiary of any Seller Party or Originator; provided, however, that nothing contained in this sentence shall limit the liability of Seller or limit the recourse of the Indemnified Parties to Seller for amounts otherwise specifically provided to be paid by Seller under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller) relating to or resulting from:
(i) any representation or warranty made by the Seller Representative (or any Seller officers of Seller) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller such Person pursuant hereto or thereto thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(cii) the failure by the Seller Representative or any Seller to comply with any applicable law, rule or regulation with respect to any Receivable or Related AssetContract related thereto, or the nonconformity of any Receivable or the Related Asset Contract included therein with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations regulation or any other circumstance beyond the control failure of the related Seller Originator to keep or the related Account Debtor;
(d) the failure by the Seller Representative perform any of its obligations, express or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount implied, with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorContract;
(eiii) any failure of Seller to perform its duties, covenants or other obligations in accordance with the failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear provisions of this Agreement or any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafterTransaction Document;
(fiv) any Dispute products liability, personal injury or damage suit, or other similar claim arising out of an Account Debtor or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(gvi) the commingling of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Seller Representative Related Security and Collections with respect thereto from Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Seller to perform its duties give reasonably equivalent value to Originator under the Receivables Sale Agreement in consideration of the transfer by Originator of any Receivable, or obligations any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(x) any failure to vest and maintain vested in accordance with the provisions Agent for the benefit of the Purchasers, or to transfer to the Agent for the benefit of the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security, the Collections and the Collection Accounts, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(hxi) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xii) any products liability claimaction or omission by the Seller which reduces or impairs the rights of the Agent, personal injury the Managing Agents or property damage suit, environmental liability claim the Purchasers with respect to any Receivable or the value of any other claim such Receivable;
(xiii) any attempt by any Person to void any Incremental Purchase or action by a party of whatever sort, whether in tort, contract Reinvestment hereunder under statutory provisions or any other legal theory, arising out of common law or in connection with equitable action; or
(xiv) the goods or services that are the subject failure of any Receivable with respect thereto; excluding, however, (i) Indemnified Amounts to included in the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable lawtime so included.
Appears in 1 contract
Indemnities by Seller. (a) Without limiting any other rights which Xxxxx Fargo that the Administrative Agent or any Purchaser may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo (and its to pay, within 30 days after receipt of a reasonably detailed invoice) the Administrative Agent and each of the Purchasers and their respective assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called an “Indemnified Party”), on demand, ) from and against any and all damages, losses, claims, judgmentstaxes, liabilities liabilities, costs, reasonable expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ fees and disbursements of external counsel (all of the foregoing being collectively called 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 following:
(a) acquisition, either directly or indirectly, by the transfer by a Seller Administrative Agent or any Purchaser of an interest in any Receivable the Receivables excluding, however, in all of the foregoing instances:
(A) Indemnified Amounts to any Person other than Xxxxx Fargothe extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence, fraud or willful misconduct on the part of an Indemnified Party;
(bB) Indemnified Amounts to the breach extent the same include losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness or financial inability or unwillingness to pay (other than a dispute giving rise to a Dilution) of the related Obligor; or
(C) Excluded Taxes of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the Purchasers’ making of Investments in the Purchased Assets as a loan or loans by the Purchasers to Seller secured by the Pool Assets; provided, however, that nothing contained in this sentence shall limit the liability of Seller or limit the recourse of the Purchasers to Seller for amounts otherwise specifically provided to be paid by Seller under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to Seller) relating to or resulting from:
(i) any representation or warranty made by any Seller Party, the Seller Representative Performance Guarantor or any Seller Originator (or any officers of any such Person) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any information or report required to be delivered by the Seller Representative or any Seller such Person pursuant hereto or thereto thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(cii) the failure by the any Seller Representative Party or any Seller Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Related AssetContract related thereto, or the nonconformity of any Receivable or the Related Asset Contract included therein with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations regulation or any other circumstance beyond the control failure of the related Seller any Originator to keep or the related Account Debtor;
(d) the failure by the Seller Representative perform any of its obligations, express or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount implied, with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorContract;
(eiii) the any failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear of any Lien Seller Party, any Originator or the Performance Guarantor to perform its duties, covenants or other than obligations in accordance with the provisions of any Transaction Document to which it is a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafterparty;
(fiv) any Dispute environmental liability, products liability, personal injury or damage suit, or other similar claim arising out of an Account Debtor or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(gvi) the commingling of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Investment, the ownership of the Pool Assets or any Investment therein or any other investigation, litigation or proceeding relating to any Seller Party or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Amortization Event described in Section 7.1(g);
(x) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Seller Representative Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Seller to perform its duties give reasonably equivalent value to the applicable Originator under the Sale Agreement in consideration of the transfer by it of any Receivable, or obligations 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 accordance with the provisions Administrative Agent for the benefit of the Purchasers legal and equitable title to, and ownership of, a perfected ownership interest or first priority perfect security interest in the Pool Assets, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(hxii) 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 Pool Assets, whether on the date hereof or at any subsequent time, except to the extent such failure or delay is caused by the Administrative Agent;
(xiii) any products liability claim, personal injury action or property damage suit, environmental liability claim omission by any Seller Party which reduces or impairs the rights of the Administrative Agent or the Purchasers with respect to any other claim Pool Assets or action the value of any Pool Assets;
(xiv) any attempt by a party of whatever sortany Person to void any Investment or the security interest in the Pool Assets granted hereunder, whether under statutory provision, common law or equitable action; and
(xv) the failure of any Receivable included in tortthe calculation of the Net Pool Balance as an Eligible Receivable to be an Eligible Receivable at the time so included.
(b) After receipt by an Indemnified Party of notice of any investigative, contract administrative or judicial proceeding (collectively, a “Proceeding”) involving such Indemnified Party, such Indemnified Party shall, if a claim in respect thereof is to be made against Seller hereunder, promptly notify Seller in writing, and in reasonable detail, of such Proceeding. Upon receipt of notice from an Indemnified Party seeking indemnification hereunder with respect to any such Proceeding, Seller shall be entitled to assume the defense of any such Proceeding with counsel reasonably satisfactory to the Administrative Agent. Upon Seller’s assumption of the defense of any such Proceeding, the Indemnified Party shall have the right to participate in such Proceeding and to retain its own counsel but Seller shall not be liable for any legal expenses of other legal theory, arising out of or counsel subsequently incurred by such Indemnified Party in connection with the goods defense thereof unless (x) Seller agrees in writing to pay such fees and expenses, (y) Seller fails to employ counsel reasonably satisfactory to the Administrative Agent in a timely manner, or services (z) the Indemnified Party shall have been advised by counsel that there are actual or potential conflicting interests between Seller, on the one hand, and the Indemnified Party, on the other hand, including situations in which there are one or more legal defenses available to the Indemnified Party that are the subject of any Receivable with respect theretodifferent from or additional to those available to Seller; excludingprovided, however, that Seller shall not in any event be responsible hereunder for the fees and expenses of more than one counsel (iplus local counsel, where necessary) for all Indemnified Amounts Parties in connection with any Proceeding. Seller shall have the sole authority to settle any claim for monetary damages and, if Seller chooses not to assume the extent directly resulting from gross negligence or willful misconduct on the part defense of any such Indemnified PartyProceeding, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an no Indemnified Party will consent to a settlement of, or is insufficient to hold such Indemnified Party harmlessthe entry of any judgment arising from, then such Seller any Proceeding without Seller’s prior written consent, which shall contribute to the amount paid not be unreasonably withheld or payable by such Indemnified Party to the maximum extent permitted under applicable lawdelayed.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Commercial Metals Co)
Indemnities by Seller. (a) Without limiting any other rights which Xxxxx Fargo that the Buyer may have hereunder or under applicable lawApplicable Law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo the Buyer and its assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called an “Indemnified Party”), forthwith on demand, from and against any and all damages, losses, claims, judgmentstaxes, liabilities and related costs and expenses, including reasonable attorneys’ fees (which attorneys may be employees of the Buyer) and disbursements (all of the foregoing being collectively called referred to as “Indemnified Amounts”) awarded against or incurred by any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of out of or as a result of this Agreement or the followingacquisition, either directly or indirectly, by the Buyer of the Originator Collateral Debt Obligations, excluding, however:
(ai) Indemnified Amounts to the transfer by a Seller extent that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of an interest in any Receivable to any Person other than Xxxxx Fargothe Indemnified Party seeking indemnification;
(bii) Indemnified Amounts to the breach extent the same includes losses in respect of Originator Collateral Debt Obligations that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party; provided, however, that nothing contained in this sentence shall limit the liability of the Seller or limit the recourse of Buyer to the Seller for amounts otherwise specifically provided to be paid by the Seller under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, the Seller shall indemnify Buyer for Indemnified Amounts relating to or resulting from:
(i) any Originator Collateral Debt Obligation treated as or represented by the Seller to be an Eligible Collateral Debt Obligation that is not at the applicable time an Eligible Collateral Debt Obligation;
(i) any representation or warranty made or deemed made by the Seller Representative or any Seller of its officers under or in connection with this Agreement Agreement, any other Sale Document or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto thereto, which shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(cii) the failure by the Seller Representative or any Seller to comply with any applicable lawterm, rule provision or regulation covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Receivable Originator Collateral Debt Obligation or Related Assetthe Collateral Debt Obligation Documents related thereto, or the nonconformity of any Receivable Originator Collateral Debt Obligation, the Related Property or the Related Asset Collateral Debt Obligation Documents related thereto with any such applicable law, rule or regulationApplicable Law, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative to perform its duties, express or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount implied, with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorOriginator Collateral Debt Obligation;
(eiii) the failure to vest and maintain vested in Xxxxx Fargo a perfected security interest any dispute, claim, offset or defense (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear of any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time discharge in bankruptcy of the purchase Obligor) of such Receivables or at any time thereafter;
(f) any Dispute of an Account Debtor the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller Originator Collateral Debt Obligation (including, without limitation, a defense based on such Receivables Originator Collateral Debt Obligation or the Collateral Debt Obligation Documents related Contracts thereto not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods or services related to any such Receivable or the furnishing of or failure to furnish such goods or services;
(giv) any failure of the Seller Representative or any Seller to perform its duties or obligations under the Originator Collateral Debt Obligations or in accordance with the provisions of the Transaction Documentsthis Agreement or any other Sale Document;
(hv) any products liability claiminvestigation, personal injury litigation or property damage suit, environmental liability claim proceeding related to or arising from this Agreement or any other claim or action by Sale Document, the transactions contemplated hereby, the use of the proceeds of a party purchase hereunder, the ownership of whatever sort, whether in tort, contract the Originator Collateral Debt Obligations or any other legal theoryinvestigation, arising out of litigation or in connection with the goods or services that are the subject of any Receivable with respect thereto; excluding, however, (i) Indemnified Amounts proceeding relating to the extent directly resulting from gross negligence or willful misconduct on the part of such Seller in which any Indemnified Party, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises Party becomes involved as a result of any of the transactions contemplated hereby;
(vi) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, any Originator Collateral Debt Obligation, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(vii) the failure of the Seller to or any of its agents or representatives to remit to the Buyer or its assignees, Collections remitted to the Seller or any such agent or representative in accordance with the terms hereof or the commingling by the Seller of any Collections;
(viii) any action or omission by the Seller which causes the occurrence of a Credit Reason Subordination Event;
(ix) any action or omission by Seller which reduces or impairs the rights of an Account Debtor. Buyer with respect to any Originator Collateral Debt Obligation or the value of any such Originator Collateral Debt Obligation; and
(x) any attempt by any Person to void the purchases made hereunder under statutory provisions or common law or equitable action.
(b) If for any reason the indemnification provided above in this Section 9.15 is unavailable to an the Indemnified Party or is insufficient to hold such an Indemnified Party harmless, then such the Seller shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the maximum extent permitted under applicable lawrelative benefits received by such Indemnified Party on the one hand and the Seller, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
Appears in 1 contract
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo may have hereunder or under applicable law, the Seller Representative Buyer and each Seller hereby agrees to indemnify Xxxxx Fargo and of its permitted assigns, officers, directors, employees and agents employees, agents, lenders or secured creditors (each of the foregoing Persons being individually called an “a "Sale Indemnified Party”)") may have hereunder or under applicable law, on demand, Seller hereby agrees to indemnify and hold harmless the Buyer and each Sale Indemnified Party from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing collectively being collectively called “"Sale Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result resulting from this Agreement (whether directly or indirectly) or the use of proceeds of purchases or the purchase ownership of any Assigned Receivable or Related Rights, excluding, however, (a) Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Buyer or such Sale Indemnified Party, (b) Sale Indemnified Amounts to the extent the same include losses in respect of Assigned Receivables and reimbursement therefor that would constitute credit recourse to Seller for the amount of any Assigned Receivable or Related Rights not paid by the Obligor for credit reasons, or (c) any net income taxes or franchise taxes imposed on the Buyer or such Sale Indemnified Party. Without limiting or being limited by the foregoing, but subject to the exclusions set forth in the immediately preceding sentence, Seller shall pay on demand to the Buyer and each Sale Indemnified Party any and all amounts necessary to indemnify and hold harmless the Buyer and such Sale Indemnified Party from and against any and all Sale Indemnified Amounts relating to or resulting from any of the following, with the express understanding that no such claim shall arise solely due to the inability of a particular Obligor to satisfy its obligations under a particular Assigned Receivable because it lacks the financial resources to do so:
(ai) the transfer or assignment (by a operation of law or otherwise) by Seller of an interest in any Assigned Receivable or Related Rights to any Person other than Xxxxx Fargothe Buyer or the transfer and sale to the Buyer of any Receivable other than an Eligible Receivable;
(bii) the breach failure of any information provided by Seller to the Buyer with respect to Assigned Receivables or this Agreement to be true, correct and complete;
(iii) the failure of any representation or warranty or statement made or deemed made by the Seller Representative (or any Seller of its officers), under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto which shall to have been false or incorrect in any material respect true and correct when made or deemed made;
(civ) the failure by the Seller Representative or any Seller to comply with any applicable law, rule or regulation requirements of law enacted by any Governmental Authority with respect to any Receivable or Related Asset, Rights or otherwise; or the nonconformity failure of any Assigned Receivable or the Related Asset with Rights to conform to any such applicable requirement of law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(ev) the failure to vest and maintain vested in Xxxxx Fargo the Buyer a perfected security valid and enforceable absolute ownership interest (as defined in the UCC) in the Purchased Receivables each Assigned Receivable at any time existing and the proceeds thereofRelated Rights with respect thereto, free and clear of any Lien Lien, other than a Lien arising solely as a result of an act of Xxxxx Fargothe Buyer, whether existing at the time of the purchase of such Receivables Assigned Receivable or at any time thereafter;
(fvi) the failure of Seller 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 Assigned Receivables and the Related Rights in respect thereof, whether at the time of any purchase or at any subsequent time;
(vii) any Dispute dispute, claim, counterclaim, offset or defense (other than discharge in bankruptcy) of an Account Debtor the Obligor to the payment of any Assigned Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Assigned Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising resulting from the breach, as sale of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods or services related to any such Assigned Receivable or the furnishing of or failure to furnish such goods or services;
(gviii) any failure of the Seller Representative or any Seller to perform its duties or obligations in accordance with the provisions hereof or to perform its duties or obligations under any of the Transaction DocumentsContracts;
(hix) any products liability claim, claim or personal injury or property damage suitsuit or other claim, environmental liability claim investigation, litigation or any other claim or action by a party proceeding of whatever sort, whether in tort, contract or any other legal theory, sort arising out of or in connection with the goods merchandise, insurance or services that which are the subject of any Receivable or Contract;
(x) the commingling of Collections of Assigned Receivables at any time with other funds;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of purchases or the ownership of any Assigned Receivable or Related Rights;
(xii) any tax or governmental fee or charge (but not including taxes upon or measured by net income or representing a franchise or doing business tax on such Sale Indemnified Party), all interest and penalties thereon or with respect thereto; excluding, however, (i) Indemnified Amounts to the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Assigned Receivables generated by Seller or any Related Rights connected with any such Assigned Receivables; or
(iixiii) any indemnification which has failure by Seller to pay any taxes when due, including, without limitation, sales taxes or excise taxes, payable in connection with the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable lawAssigned Receivables.
Appears in 1 contract
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo may have hereunder or under applicable law, the The Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo the Buyer, the Agent, the Operating Agent and its assigns, officers, directors, employees their respective Affiliates and agents (each of the foregoing Persons being individually called an “Indemnified Party”), on demand, Collection Agent from and against any and all damages, losses, claims, judgments, liabilities and related reasonable costs and expenses, including reasonable attorneys’ ' fees and disbursements together with VAT thereon (all of the foregoing being collectively called “referred to as "Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result relating to this Agreement or the ownership of Purchased Receivables, excluding, however, (a) such amounts resulting from gross negligence or wilful misconduct on the part of the followingPerson who would otherwise be entitled to claim such indemnification or (b) in the case of the Agent, the Operating Agent and their respective Affiliates and the Collection Agent recourse (except as otherwise specifically provided in this Agreement) for uncollectible Purchased Receivables or for losses arising out of late Collections. Without limiting the foregoing, Indemnified Amounts include amounts relating to or resulting from:
(a1) the transfer by a Seller of an interest in any Receivable to any Person other than Xxxxx Fargo;
(b) the breach of reliance on any representation or warranty made or deemed made by the Seller Representative or any Seller under or in connection with this Agreement Agreement, or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller the Collection Agent pursuant hereto or thereto to this Agreement, which shall have been false or incorrect in any material respect when made or deemed mademade or delivered (to the extent that such amounts have not already been recovered by the applicable indemnified party pursuant to Clause 5(D));
(c2) the failure by the Seller Representative or any Seller to comply with any term, provision or covenant contained in this Agreement or with any applicable law, rule or regulation with respect to any Receivable Receivable, the related Contract or the Related AssetSecurity, or the nonconformity of any Receivable or the related Contract or the Related Asset Security with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(e3) the failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Buyer ownership of each Purchased Receivables and the proceeds thereofReceivable, free and clear of any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, Adverse Claim whether existing at the time of the purchase Purchase of such Receivables Receivable or at any time thereafter, excluding any such Adverse Claim created by the Buyer;
(f4) any Dispute dispute, claim, offset or defence (other than discharge in bankruptcy or winding up by reason of an insolvency or analogous event of the Account Debtor) of the Account Debtor to the payment of any Receivable which is, or is purported to be, a Purchase Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense defence based on such Receivables Receivable or the related Contracts Contract not being a legal, valid valid, binding and binding enforceable obligation of such Account Debtor enforceable against it in accordance with its termsDebtor), or any other claim arising resulting from the breach, as sale of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods or services related to any such Receivable or the furnishing of or failure to furnish such goods or services;
(g5) any failure of the Seller Representative Seller, as Collection Agent or any Seller otherwise, to perform its duties or obligations in accordance with the provisions of the Transaction Documentsthis Agreement;
(h6) the Buyer, at the request or with the approval of the Seller, contracting for or arranging foreign exchange transactions and/or funding in connection with any anticipated Purchase and such Purchase does not in fact take place as a result of the Seller. not delivering a Notice of Sale, the operation of Clause 3(B) or any other provision of this Agreement, or a sale of Receivables not being effected in relation to a Notice of Sale by reason of any event described in Clause 11(D)(1), (2), (3) and (4) or any breach by the Seller (in whatever capacity) of any of its obligations under or in connection with this Agreement;
(7) any products liability claim, or personal injury or property damage suitclaim, environmental liability claim or any other similar or related claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, sort arising out of or in connection with the goods goods, merchandise or services that which are the subject of any Receivable with respect thereto; excludingor Contract, however, and
(i) Indemnified Amounts 8) the transfer of an ownership interest in any Receivable other than an Eligible Receivable (to the extent directly resulting from gross negligence that such amounts have not already been recovered by the applicable indemnified party pursuant to Clause 5(D). The Operating Agent will provide the Seller with a certificate or willful misconduct on certificates showing in reasonable detail the part basis for the calculation of Indemnified Amounts claimed under this Clause 15(B) provided, for the avoidance of doubt, that the provision of such Indemnified Party, and (ii) certificate or certificates shall not be a condition for the making of any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted claim under applicable lawthis Clause 15(B).
Appears in 1 contract
Indemnities by Seller. (a) Without limiting any other rights which Xxxxx Fargo that any of the Agents or Purchasers may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo (and its pay upon demand to) each of the Agents, the Purchasers and their respective successors, assigns, officers, directors, agents, employees and agents and, in the case of a Conduit Purchaser, liquidity providers under the applicable Liquidity Agreement (each of the foregoing Persons being individually called foregoing, an “Indemnified Party”), on demand, ) from and against any and all damages, losses, claims, judgmentstaxes, liabilities liabilities, costs, reasonable expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ fees and disbursements of external counsel (all of the foregoing being collectively called 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 following:
(a) acquisition, either directly or indirectly, by the transfer by a Seller Administrative Agent or any Purchaser of an interest in any Receivable the Receivables excluding, however, in all of the foregoing instances:
(A) Indemnified Amounts to any Person other than Xxxxx Fargothe extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence, bad faith or willful misconduct on the part of an Indemnified Party;
(bB) Indemnified Amounts to the breach extent the same include losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness or financial inability or unwillingness to pay (other than a dispute giving rise to a Dilution) of the related Obligor; or
(C) Excluded Taxes of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Receivable Interests as a loan or loans by the Purchasers to Seller secured by the Collateral; provided, however, that nothing contained in this sentence shall limit the liability of Seller or limit the recourse of the Agents or the Purchasers to Seller for amounts otherwise specifically provided to be paid by Seller under the terms of the Transaction Documents. Without limiting the generality of the foregoing indemnification, Seller shall indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to Seller) relating to or resulting from:
(i) any representation or warranty made by the any Seller Representative Party or any Seller Originator (or any officers of any such Person) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any information or report required to be delivered by the Seller Representative or any Seller such Person pursuant hereto or thereto thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(cii) the failure by the any Seller Representative Party or any Seller Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Related AssetContract related thereto, or the nonconformity of any Receivable or the Related Asset Contract included therein with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations regulation or any other circumstance beyond the control failure of the related Seller any Originator to keep or the related Account Debtor;
(d) the failure by the Seller Representative perform any of its obligations, express or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount implied, with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorContract;
(eiii) the any failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear of any Lien Seller Party or any Originator to perform its duties, covenants or other than obligations in accordance with the provisions of any Transaction Document to which it is a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafterparty;
(fiv) any Dispute environmental liability, products liability, personal injury or damage suit, or other similar claim arising out of an Account Debtor or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(gvi) the commingling of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of any Purchase, the ownership of the Receivable Interests or any other investigation, litigation or proceeding relating to any Seller Party or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Amortization Event described in Section 7.1(g);
(x) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Seller Representative Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Seller to perform its duties give reasonably equivalent value to the applicable Originator under the Sale Agreement in consideration of the transfer by it of any Receivable, or obligations 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 accordance with the provisions Administrative Agent (for the benefit of the Purchasers) a valid and perfected ownership interest (to the extent of the Receivable Interests) or a first priority perfected Security Interest in the Collateral, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(hxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Collateral, whether on the date hereof or at any subsequent time, except to the extent such failure or delay is caused by the Administrative Agent;
(xiii) any products liability claim, personal injury action or property damage suit, environmental liability claim omission by any Seller Party which reduces or impairs the rights of the Administrative Agent or the Purchasers with respect to any other claim Collateral or action the value of any Collateral;
(xiv) any attempt by a party of whatever sortany Person to void any Purchase or the Security Interest in the Collateral granted hereunder, whether under statutory provision, common law or equitable action; and
(xv) the failure of any Receivable included in tortthe calculation of the Investment Base as an Eligible Receivable to be an Eligible Receivable at the time so included.
(b) After receipt by an Indemnified Party of notice of any investigative, contract administrative or judicial proceeding (collectively, a “Proceeding”) involving such Indemnified Party, such Indemnified Party shall, if a claim in respect thereof is to be made against Seller hereunder, promptly notify Seller in writing, and in reasonable detail, of such Proceeding. Upon receipt of notice from an Indemnified Party seeking indemnification hereunder with respect to any such Proceeding, Seller shall be entitled to assume the defense of any such Proceeding with counsel reasonably satisfactory to the Administrative Agent. Upon Seller’s assumption of the defense of any such Proceeding, the Indemnified Party shall have the right to participate in such Proceeding and to retain its own counsel but Seller shall not be liable for any legal expenses of other legal theory, arising out of or counsel subsequently incurred by such Indemnified Party in connection with the goods defense thereof unless (x) Seller agrees in writing to pay such fees and expenses, (y) Seller fails to employ counsel reasonably satisfactory to the Administrative Agent in a timely manner, or services (z) the Indemnified Party shall have been advised by counsel that there are actual or potential conflicting interests between Seller, on the one hand, and the Indemnified Party, on the other hand, including situations in which there are one or more legal defenses available to the Indemnified Party that are the subject of any Receivable with respect theretodifferent from or additional to those available to Seller; excludingprovided, however, that Seller shall not in any event be responsible hereunder for the fees and expenses of more than one counsel (iplus local counsel, where necessary) for all Indemnified Amounts Parties in connection with any Proceeding. Seller shall have the sole authority to settle any claim for monetary damages and, if Seller chooses not to assume the extent directly resulting from gross negligence or willful misconduct on the part defense of any such Indemnified PartyProceeding, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an no Indemnified Party will consent to a settlement of, or is insufficient to hold such Indemnified Party harmlessthe entry of any judgment arising from, then such Seller any Proceeding without Seller’s prior written consent, which shall contribute to the amount paid not be unreasonably withheld or payable by such Indemnified Party to the maximum extent permitted under applicable lawdelayed.
Appears in 1 contract
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo that the Buyer may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo the Buyer and its assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called an “Indemnified Party”)) against, on demandand hold each Indemnified Party harmless from, from and against any and all damages, losses, claims, judgmentsdamages, penalties, incremental taxes, liabilities and related costs and expenses, including reasonable attorneys’ fees the fees, charges and disbursements of any counsel for any Indemnified Party (all of the foregoing being collectively called collectively, “Indemnified Amounts”) awarded against or ), incurred by or asserted against any of them Indemnified Party arising out of of, in connection with, or as a result of this Agreement or the following:
(a) acquisition, either directly or indirectly, by the transfer by a Seller Buyer of an interest in any Receivable the Receivables, excluding, however:
(i) Indemnified Amounts to any Person other than Xxxxx Fargothe extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(bii) Indemnified Amounts to the breach extent the same include losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor or the financial inability of the related Obligor to pay; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party. Without limiting the generality of the foregoing indemnification, the Seller shall indemnify each Indemnified Party against, and hold each Indemnified Party harmless from, any and all Indemnified Amounts incurred by or asserted against any Indemnified Party (including losses in respect of uncollectible Receivables, but only to the extent such indemnification obligation arises pursuant to any of clauses (i) through (xv) below) arising out of, in connection with, or as a result of:
(i) any representation or warranty made by the Seller Representative or any Seller other Originator (or any officers of any such Person) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller such Person pursuant hereto or thereto thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(cii) the any failure by the Seller Representative or any Seller other Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Related Assetany related Contract, or the nonconformity of any Receivable or the Related Asset any related Contract with any such applicable law, rule or regulation, regulation or resulting from an act any failure of God, civil strife, war, currency restrictions, foreign political restrictions or regulations the Seller or any other circumstance beyond the control Originator to keep or perform any of the related Seller its obligations, express or the related Account Debtorimplied, with respect to any such Contract;
(diii) the any failure by the Seller Representative or any Seller other Originator to remit to perform its duties, covenants or other obligations in accordance with the appropriate tax authorities provisions of this Agreement or any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorTransaction Document;
(eiv) any products liability, personal injury or damage suit or other similar claim arising out of or in connection with merchandise or services that are the failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear subject of any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables Receivable or at any time thereafterrelated Contract;
(fv) any Dispute dispute, claim, offset or defense of an Account Debtor any related Obligor (other than discharge in bankruptcy of such Obligor) to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it such Obligor in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods or services related to any such Receivable or the furnishing of or failure to furnish such goods or services;
(g) any failure of the Seller Representative or any Seller to perform its duties or obligations in accordance with the provisions of the Transaction Documents;
(h) any products liability claim, personal injury or property damage suit, environmental liability claim or any other claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with the goods merchandise or services that are the subject of such Receivable or the furnishing or failure to furnish such merchandise or services;
(vi) the commingling by the Seller of Collections with respect to any Receivable at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby or thereby, the use of the proceeds of any purchase of Receivables hereunder, the ownership of the Receivables, or any other investigation, litigation or proceeding relating to the Seller or any other Originator or to the Buyer in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect thereto; excludingof 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, howeversuit or proceeding;
(ix) the occurrence of any Amortization Event set forth in clause (h), (i) Indemnified Amounts or (j) of Article IX of the Credit Agreement;
(x) any failure of the Seller to acquire and maintain legal and equitable title to, and ownership of, any Receivable, and the Related Security and Collections with respect thereto, from any other Originator, free and clear of any Lien (except as contemplated by this Agreement); or any failure of the Seller to give reasonably equivalent value to the extent directly resulting from gross negligence related Originator under the related Receivables Transfer Agreement in consideration of the transfer by such Originator of any Receivable, or willful misconduct any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xi) any failure to vest and maintain vested in the Buyer, or to transfer to the Buyer, legal and equitable title to, and ownership of, the Receivables, and the Related Security and Collections with respect thereto, free and clear of any Lien (except as contemplated by this Agreement);
(xii) any 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, or 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;
(xiii) any action or omission by the Seller which reduces or impairs the rights of the Buyer with respect to any Receivable or the value of any Receivable;
(xiv) any attempt by any Person to void any purchase of Receivables hereunder under statutory provisions or common law or equitable action; and
(xv) the failure of any Receivable included as an Eligible Receivable on any Borrowing Base Report to be an Eligible Receivable as of the part date of such Indemnified Party, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable lawBorrowing Base Report.
Appears in 1 contract
Samples: Receivables Sale Agreement (Anixter International Inc)
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo that the Agent, the Managing Agents or any Purchaser may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo (and its pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called an “Indemnified Party”), on demand, ) from and against any and all damages, losses, claims, judgmentstaxes, liabilities liabilities, out-of-pocket costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively called 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 followingacquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, excluding, however:
(a) Indemnified Amounts to the transfer by extent a Seller final judgment of an interest in any Receivable to any Person other than Xxxxx Fargoa court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the breach extent the same include losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor;
(c) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; or
(d) Indemnified Amounts to the extent they resulted from an action brought by any Indemnified Party against any other Indemnified Party not involving any Seller Party, any Originator or any Subsidiary of any Seller Party or any Originator; provided, however, that nothing contained in this sentence shall limit the liability of Seller or limit the recourse of the Indemnified Parties to Seller for amounts otherwise specifically provided to be paid by Seller under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller) relating to or resulting from:
(i) any representation or warranty made by the Seller Representative (or any Seller officers of Seller) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller such Person pursuant hereto or thereto thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(cii) the failure by the Seller Representative or any Seller to comply with any applicable law, rule or regulation with respect to any Receivable or Related AssetContract related thereto, or the nonconformity of any Receivable or the Related Asset Contract included therein with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations regulation or any other circumstance beyond the control failure of the related Seller any Originator to keep or the related Account Debtor;
(d) the failure by the Seller Representative perform any of its obligations, express or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount implied, with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorContract;
(eiii) any failure of Seller to perform its duties, covenants or other obligations in accordance with the failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear provisions of this Agreement or any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafterTransaction Document;
(fiv) any Dispute products liability, personal injury or damage suit, or other similar claim arising out of an Account Debtor or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(gvi) the commingling of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Seller Representative Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Seller to perform its duties give reasonably equivalent value to any Originator under the Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or obligations any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(x) any failure to vest and maintain vested in accordance with the provisions Agent for the benefit of the Purchasers, or to transfer to the Agent for the benefit of the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security, the Collections and the Collection Accounts, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(hxi) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xii) any products liability claimaction or omission by the Seller which reduces or impairs the rights of the Agent, personal injury the Managing Agents or property damage suit, environmental liability claim the Purchasers with respect to any Receivable or the value of any other claim such Receivable;
(xiii) any attempt by any Person to void any Incremental Purchase or action by a party of whatever sort, whether in tort, contract Reinvestment hereunder under statutory provisions or any other legal theory, arising out of common law or in connection with equitable action; or
(xiv) the goods or services that are the subject failure of any Receivable with respect thereto; excluding, however, (i) Indemnified Amounts to included in the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable lawtime so included.
Appears in 1 contract
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo that the Agent or the Purchasers, may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo (and its pay upon demand to) the Agent, each of the Purchasers and each of the respective assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called (each, an “Indemnified Party”), on demand, "INDEMNIFIED PARTY") from and against any and all damages, losses, claims, judgmentstaxes, liabilities liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent or another Indemnified Party) and disbursements (all of the foregoing being collectively called “Indemnified Amounts”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 followingacquisition, either directly or indirectly, by any Purchaser of an interest in the Receivables, EXCLUDING, HOWEVER:
(a) Indemnified Amounts to the transfer by extent a Seller final judgment of an interest in any Receivable to any Person other than Xxxxx Fargoa court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the breach extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(c) (i) taxes on or measured by the overall net income of such Indemnified Party imposed by the United States, the jurisdiction under the laws of which such Indemnified Party is incorporated or otherwise organized, in which such Indemnified Party is a resident for income tax purposes, or in which such Indemnified Party's principal executive office or lending office is located, in each case, including any political subdivision thereof, (ii) branch profits taxes, franchise taxes, or similar taxes imposed on the Indemnified Party, and (iii) other taxes imposed by any jurisdiction in which such Indemnified Party is subject to taxation for reasons other than the execution, delivery, performance, filing, recording, and enforcement of, and the other activities contemplated in this Agreement and the Indemnified Party's participation in the transactions contemplated by this Agreement, to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by any Purchaser, of Receivables as a loan or loans by any Purchaser, to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; PROVIDED, HOWEVER, that nothing contained in this sentence shall limit the liability of Seller or limit the recourse of any Purchaser, to Seller for amounts otherwise specifically provided to be paid by Seller under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify the Agent and the Purchasers, for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller) relating to or resulting from:
(i) any representation or warranty made by Seller or (to the extent Seller Representative actually receives indemnity under a Receivables Sale Agreement) the Originator (or any Seller officers of any such Person) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller such Person pursuant hereto or thereto thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(cii) the failure by Seller or (to the extent Seller Representative or any Seller actually receives indemnity under a Receivables Sale Agreement) the Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Related AssetContract related thereto, or the nonconformity of any Receivable or the Related Asset Contract included therein with any such applicable law, rule or regulation, regulation or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or (to the extent Seller actually receives indemnity under a Receivables Sale Agreement) any other circumstance beyond the control failure of the related Seller Originator to keep or the related Account Debtor;
(d) the failure by the Seller Representative perform any of its obligations, express or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount implied, with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorContract;
(eiii) any failure of Seller or (to the extent Seller actually receives indemnity under a Receivables Sale Agreement) the failure Originator to vest and maintain vested perform its duties, covenants or other obligations in Xxxxx Fargo a perfected security interest (as defined in accordance with the UCC) in the Purchased Receivables and the proceeds thereof, free and clear provisions of this Agreement or any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafterTransaction Document;
(fiv) any Dispute products liability, personal injury or damage suit, or other similar claim arising out of an Account Debtor or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(gvi) the commingling by Seller or (to the extent Seller actually receives indemnity under a Receivables Sale Agreement) by the Originator of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of any Purchase, the Purchased Assets or any other investigation, litigation or proceeding relating to Seller or (to the extent Seller actually receives indemnity under a Receivables Sale Agreement) the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Amortization Event of the type described in Section 9.1(g) with respect to any Seller Party;
(x) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any of the Seller Representative Purchased Assets from the Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Seller to perform its duties give reasonably equivalent value to the Originator under a Receivables Sale Agreement in consideration of the transfer by the Originator of any Receivable, or obligations 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 accordance the Agent for the benefit of the Purchasers or to transfer to the Agent for the benefit of the Purchasers, a valid first priority perfected security interest in the Purchased Assets, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(xii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC, the PPSA (as applicable) or any comparable law of any applicable jurisdiction or other applicable laws with respect to any Purchased Assets, and the proceeds thereof, whether at the time of any Purchase or at any subsequent time;
(xiii) any action or omission by Seller which reduces or impairs the rights of the Agent or any Purchaser with respect to any Purchased Assets or the value of any Purchased Assets;
(xiv) any attempt by any Person to void any Purchase or the Agent's security interest in the Purchased Assets under statutory provisions or common law or equitable action;
(xv) the failure of any Receivable included in the calculation of the Net Pool Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xvi) any civil penalty or fine assessed by OFAC against, and all reasonable costs and expenses (including counsel fees and disbursements) incurred in connection with defense thereof by Agent or any Purchaser as a result of the funding of the Commitments or the acceptance of payments due under the Transaction Documents;
(hxvii) any products liability claimpayment required to be made by the Agent to the Collateral Agent under the Intercreditor Agreement or by the Collateral Agent under any Collection Account Agreement; and
(xviii) any present or future Taxes (as defined in Section 10.1.3) or similar charges or imposts, personal injury together with all interest and penalties thereon or property damage suitwith respect thereto and all out-of-pocket costs and expenses, environmental liability claim including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of any interest in the Receivables or any other claim Related Security, the financing of such purchase or action ownership by a party Seller or the servicing of whatever sortthe Receivables, whether in tortincluding without limitation, contract any withholding taxes that are imposed by Canada or any political subdivision thereof on any Indemnified Party or that are withheld from any Collections or other legal theorypayments made hereunder, arising out and any such Taxes or similar charges or imposts that are imposed on any Indemnified Party as a result of such Indemnified Party having a permanent establishment in Canada or being found to be carrying on business in connection with Canada (unless it acquired such permanent establishment or commenced to be carrying on business in Canada otherwise than as a result of the goods transactions contemplated hereby or services by the other Transaction Documents); provided that promptly following an Authorized Officer of any Indemnified Party becoming aware of receipt (the "RECEIPT") by such Indemnified Party of a written claim (the "CLAIM") from Canadian tax authorities for payment of any Taxes in respect of which this clause (xviii) would apply, such Indemnified Party shall notify Seller thereof; and provided, further, that failure or delay in giving any such notice shall not affect the rights of such Indemnified Party under this clause (xviii) except that, if such notice is not given 34 within 30 days after such Authorized Officer becomes aware of such Receipt, and no employee or advisor of Seller or any Affiliate thereof has, within such 30-day period, otherwise learned of such Claim (or that Canadian tax authorities have made or may make a claim for payment of any Taxes that are the subject of such Claim), Seller will not be liable to such Indemnified Party in respect of any Receivable interest or penalties under this clause (xviii) on or with respect thereto; excluding, however, (i) Indemnified Amounts to such Taxes to the extent directly resulting from gross negligence that such interest or willful misconduct on penalty accrues after the part end of such Indemnified Party, 30-day period and before the date an employee or advisor of Seller or any Affiliate thereof learns of such Claim (ii) any indemnification which has the effect of recourse to such Seller or that Canadian tax authorities have made or may make a claim for non-payment of any Taxes that are the Receivables to the extent any loss arises as a result subject of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable lawClaim).
Appears in 1 contract
Samples: Receivables Purchase Agreement (Wolverine Tube Inc)
Indemnities by Seller. (a) Without limiting any other rights which Xxxxx Fargo that the Administrative Agent or any of the Purchasers may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo (and its pay upon demand to) the Administrative Agent and each of the Purchasers and their respective successors, assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called foregoing, an “Indemnified Party”), on demand, ) from and against any and all damages, losses, claims, judgmentsTaxes, liabilities liabilities, costs, reasonable expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ fees and disbursements of external counsel (all of the foregoing being collectively called 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 following:
(a) acquisition, either directly or indirectly, by the transfer by a Seller Administrative Agent or any Purchaser of an interest in any Receivable the Receivables excluding, however, in all of the foregoing instances:
(A) Indemnified Amounts to any Person other than Xxxxx Fargothe extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence, bad faith or willful misconduct on the part of an Indemnified Party;
(bB) Indemnified Amounts to the breach extent the same include losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness or financial inability or unwillingness to pay (other than a dispute giving rise to a Dilution) of the related Obligor; or
(C) Taxes (which shall be governed by Sections 8.3 and 8.5); provided, however, that nothing contained in this sentence shall limit the liability of Seller or limit the recourse of the Administrative Agent or the Purchasers to Seller for amounts otherwise specifically provided to be paid by Seller under the terms of the Transaction Documents. Without limiting the generality of the foregoing indemnification, Seller shall indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to Seller) relating to or resulting from:
(i) any representation or warranty made by the any Seller Representative Party or any Seller Originator (or any officers of any such Person) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any information or report required to be delivered by the Seller Representative or any Seller such Person pursuant hereto or thereto thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(cii) the failure by the any Seller Representative Party or any Seller Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Related AssetContract related thereto, or the nonconformity of any Receivable or the Related Asset Contract included therein with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations regulation or any other circumstance beyond the control failure of the related Seller any Originator to keep or the related Account Debtor;
(d) the failure by the Seller Representative perform any of its obligations, express or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount implied, with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorContract;
(eiii) the any failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear of any Lien Seller Party or any Originator to perform its duties, covenants or other than obligations in accordance with the provisions of any Transaction Document to which it is a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafterparty;
(fiv) any Dispute environmental liability, products liability, personal injury or damage suit, or other similar claim arising out of an Account Debtor or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(gvi) the commingling of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of any Purchase, the ownership of the Receivable Interests or any other investigation, litigation or proceeding relating to any Seller Party or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Amortization Event described in Section 7.1(g);
(x) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Seller Representative Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Seller to perform its duties give reasonably equivalent value to the applicable Originator under the Sale Agreement in consideration of the transfer by it of any Receivable, or obligations 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 accordance with the provisions Administrative Agent (for the benefit of the Purchasers) a valid and perfected ownership interest (to the extent of the Receivable Interests) or a first priority perfected Security Interest in the Collateral, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(hxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Collateral, whether on the date hereof or at any subsequent time, except to the extent such failure or delay is caused by the Administrative Agent;
(xiii) any products liability claim, personal injury action or property damage suit, environmental liability claim omission by any Seller Party which reduces or impairs the rights of the Administrative Agent or the Purchasers with respect to any other claim Collateral or action the value of any Collateral;
(xiv) any attempt by a party of whatever sortany Person to void any Purchase or the Security Interest in the Collateral granted hereunder, whether under statutory provision, common law or equitable action; and
(xv) the failure of any Receivable included in tortthe calculation of the Investment Base as an Eligible Receivable to be an Eligible Receivable at the time so included.
(a) After receipt by an Indemnified Party of notice of any investigative, contract administrative or judicial proceeding (collectively, a “Proceeding”) involving such Indemnified Party, such Indemnified Party shall, if a claim in respect thereof is to be made against Seller hereunder, promptly notify Seller in writing, and in reasonable detail, of such Proceeding. Upon receipt of notice from an Indemnified Party seeking indemnification hereunder with respect to any such Proceeding, Seller shall be entitled to assume the defense of any such Proceeding with counsel reasonably satisfactory to the Administrative Agent. Upon Seller’s assumption of the defense of any such Proceeding, the Indemnified Party shall have the right to participate in such Proceeding and to retain its own counsel but Seller shall not be liable for any legal expenses of other legal theory, arising out of or counsel subsequently incurred by such Indemnified Party in connection with the goods defense thereof unless (x) Seller agrees in writing to pay such fees and expenses, (y) Seller fails to employ counsel reasonably satisfactory to the Administrative Agent in a timely manner, or services (z) the Indemnified Party shall have been advised by counsel that there are actual or potential conflicting interests between Seller, on the one hand, and the Indemnified Party, on the other hand, including situations in which there are one or more legal defenses available to the Indemnified Party that are the subject of any Receivable with respect theretodifferent from or additional to those available to Seller; excludingprovided, however, that Seller shall not in any event be responsible hereunder for the fees and expenses of more than one counsel (iplus local counsel, where necessary) for all Indemnified Amounts Parties in connection with any Proceeding. Seller shall have the sole authority to settle any claim for monetary damages and, if Xxxxxx chooses not to assume the extent directly resulting from gross negligence or willful misconduct on the part defense of any such Indemnified PartyProceeding, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an no Indemnified Party will consent to a settlement of, or is insufficient to hold such Indemnified Party harmlessthe entry of any judgment arising from, then such Seller any Proceeding without Seller’s prior written consent, which shall contribute to the amount paid not be unreasonably withheld or payable by such Indemnified Party to the maximum extent permitted under applicable lawdelayed.
Appears in 1 contract
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo may have hereunder or under applicable law, the (a) Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo indemnify, defend and its assignssave harmless Buyer and Second Step Purchaser and their respective directors, officers, directorsshareholders, employees and agents (each of the foregoing Persons being individually called each, an “"Indemnified Party”"), forthwith on demand, from and against any and all damages, losses, claims, judgmentsdamages, liabilities liabilities, costs and related costs expenses (including, without limitation, all attorneys' fees and expenses, including reasonable attorneys’ fees expenses incurred by their respective credit recovery groups (or any successors thereto) and disbursements expenses of settlement, litigation or preparation therefor) which Buyer or Second Step Purchaser may incur or which may be asserted against Buyer or Second Step Purchaser by any Person (including, without limitation, any Obligor or any other Person whether on its own behalf or derivatively on behalf of Seller) (all of the foregoing being collectively called “Indemnified Amounts”) awarded against referred to as "Losses"), arising from or incurred in connection with (x) any breach of a representation, warranty or covenant by Seller made or deemed made hereunder or under the Purchase Agreement or in connection herewith or therewith or the transactions contemplated herewith or therewith, or (y) any of them arising suit, action, claim, proceeding or governmental investigation, pending or threatened, whether based on statute, regulation or order, on tort, on contract or otherwise, before any Official Body, which arises out of or relates to the Transaction Documents, the Ownership Interest or the Participation Interest in the Transferred Receivables or related Contracts, or the use of the proceeds of the Transferred Receivables pursuant hereto or to the Purchase Agreement or the transactions contemplated hereby or thereby (all Losses, after giving effect to the limitations set forth in this subsection and in subsections (b) and (c) below, being hereinafter referred to as a result "Indemnified Amounts"), excluding, however, (i) Losses to the extent resulting from the gross negligence or willful misconduct on the part of such Indemnified Party, (ii) recourse (except as otherwise provided in this Agreement) for Defaulted Receivables, (iii) any Losses with respect to any tax, reserve, capital charge or expense related thereto (indemnification with respect to such Losses being provided as and to the extent provided in the Purchase Agreement), and (iv) Losses, to the extent that such Losses resulted from an act or omission of Servicer (if Servicer is not Seller or another Seller Entity).
(b) Without limitation of the generality of subsection (a), Seller shall pay on demand to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts relating to or resulting from any of the following:
(ai) any Transferred Receivable did not, at the transfer by a time of its sale or contribution from Seller of to Buyer pursuant to this Agreement, satisfy the criteria for inclusion as an interest Eligible Receivable, mutatis mutandis, in any Receivable to any Person other than Xxxxx Fargoaccordance with this Agreement and the Purchase Agreement;
(bii) the breach of reliance on any representation or warranty made or deemed made by the Seller Representative (or any of its respective Responsible Officers) or any `statement made by any Responsible Officer of Seller under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto which shall have been false or incorrect in any material respect when made or deemed made;
(ciii) the failure by the Seller Representative or any Seller to comply with any applicable law, rule or regulation with respect to any Receivable or Related Asset, or the nonconformity of any Receivable or the Related Asset with any such applicable lawLaw, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(eiv) the failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined Buyer, in accordance with this Agreement, the Ownership Interest in the UCC) in the Purchased Transferred Receivables and the proceeds Collections in respect thereof, free and clear of any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafterLien;
(fv) the failure of the Purchase Agreement to vest in Second Step Purchaser the Participation Interest in the Transferred Receivables and Collections in respect thereof, free and clear of any Lien, in accordance with the terms of the Purchase Agreement, as the result of any action or omission by Seller;
(vi) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the Uniform Commercial Code of any applicable jurisdiction or under any other applicable Law with respect to the sale or contribution of the Transferred Receivables by Seller to Buyer;
(vii) any Dispute dispute, claim, offset or defense (other than discharge in bankruptcy of an Account Debtor the Obligor) of the Obligor to the payment of any Transferred Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(gviii) any failure of the Seller Representative or any Seller to perform its duties or obligations in accordance with the provisions of the Transaction Documentsthis Agreement;
(hix) any products liability claim, personal injury or property damage suit, environmental liability claim or any other claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with the goods merchandise, insurance or services that which are the subject of any Receivable with Contract; or
(x) any failure by Buyer to make any payment to Second Step Purchaser required by Section 11.03 of the Purchase Agreement, as the result of any action or omission by Seller.
(c) Promptly upon receipt by any Indemnified Party hereunder of notice of the commencement of any suit, action, claim, proceeding or governmental investigation (an "Action"), such Indemnified Party shall, if a claim in respect thereto; excludingthereof is to be made against Seller hereunder, howevernotify Seller in writing of the commencement thereof Seller may participate in the defense of any such Action at its expense, (i) and no settlement thereof shall be made without the approval of Seller and the Indemnified Amounts Party. The approval of Seller will not be unreasonably withheld or delayed. In case any Action shall be brought against any Indemnified Party, Seller shall be entitled to participate in and, to the extent directly resulting from gross negligence or willful misconduct on that it shall wish, to assume the part of such defense thereof, with counsel satisfactory to the Indemnified Party, and (ii) any indemnification which has the effect of recourse after notice from Seller to such Seller for non-payment of the Receivables to the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmlessof its election so to assume the defense thereof, then such Seller shall contribute not be liable to the amount paid such Indemnified Party for any legal or payable other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. In any such Action, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) Seller and such Indemnified Party shall have mutually agreed in writing to the maximum extent permitted under applicable lawretention of such counsel or (ii) the named parties to any such Action (including any impleaded parties) include both Seller and such Indemnified Party and representation of both parties by the same counsel would be in appropriate due to actual or potential differing interests between them. It is understood that Seller shall not, in conjunction with any Action or related Actions in the same jurisdiction, be liable for the fees and expenses of more that one separate firm in addition to any local counsel for all such Indemnified Parties, unless (i) Seller and such Indemnified Parties shall have mutually agreed in writing to the retention of separate counsel or (ii) the named parties to any such Action (including any impleaded parties) include such Indemnified Parties and representation of such Indemnified Parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and that all such fees and expenses shall be reimbursed as they are incurred.
(d) The indemnity contained in this Section 9.1 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Receivables Sale and Contribution Agreement (Volt Information Sciences Inc)
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo the Purchaser Representative and its assigns, each Purchaser (together with their officers, directors, employees agents, representatives, shareholders, counsel and agents (each of the foregoing Persons being individually called employees, each, an “Indemnified Party”), on demand, ) from and against any and all damages, losses, claims, judgmentslosses and liabilities (including, liabilities and related costs and expenseswithout limitation, including reasonable attorneys’ fees and disbursements fees) (all of the foregoing being collectively called referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result resulting from any of the following:
: (ai) the transfer by a Seller sale to such Purchaser of an interest in any Receivable as to any Person other than Xxxxx Fargo;
which the representations and warranties made herein are not all true and correct on the Purchase Date therefor; (bii) the breach of any representation or warranty made by the Seller Representative (or any Seller of its respective officers) under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by (except with respect to the Seller Representative or any Seller pursuant hereto or thereto Purchased Receivables) which shall have been false or incorrect in any material respect when made or deemed made;
; (ciii) the failure by the Seller Representative or any Seller Servicer to comply with any applicable law, rule or regulation with respect to any Receivable or Related Asset, or the nonconformity of any Receivable or the Related Asset with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
Purchased Receivable; (d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(eiv) the failure to vest and maintain vested in Xxxxx Fargo each Purchaser a perfected security interest (as defined in the UCC) in the each Purchased Receivables Receivable and other Sold Assets and the proceeds thereofand Collections in respect thereof sold or assigned to such Purchaser hereunder, free and clear of any Lien liens or encumbrances of any kind or nature whatsoever (other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at those granted to the time of the purchase of such Receivables or at any time thereafter;
Purchasers under this Agreement); (fv) any Dispute of an Account Debtor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables or the related Contracts not being a legal, valid and binding obligation of such Account Debtor enforceable against it in accordance with its terms), or any other claim arising related to such Purchased Receivable (or any portion thereof) excluding any Dispute or claim that (A) relates to the acts or omissions of such Purchaser which are (x) in material violation of applicable law relating to such action or omission or (y) in material breach of its obligations hereunder, (B) does not relate to the acts or omissions of the Seller, the Servicer or any of their Affiliates, (C) does not relate to the transfer of such Purchased Receivable from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from Seller to such Purchaser and (D) does not relate to the goods or services related to that are the subject of such Purchased Receivables; (vi) except as otherwise expressly provided in this Agreement or in any such Receivable or the furnishing of or failure to furnish such goods or services;
(g) any failure of the other Transaction Documents, the commingling by Seller Representative of Collections at any time with other funds of Seller or any Seller to perform its duties or obligations in accordance with the provisions of the Transaction Documents;
other Person; (hvii) any products liability claim, personal injury or property damage suit, environmental liability claim or any other claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with the goods or services that are the subject of any Purchased Receivable with respect thereto; excluding(viii) this Agreement and the transactions contemplated hereby and the purchases of the Purchased Receivables by such Purchaser pursuant to the terms hereof, howeverexcluding any Dispute or claim that (A) relates to the acts or omissions of such Purchaser which are (x) in material violation of applicable law relating to such action or omission or (y) in material breach of its obligations hereunder, (iB) Indemnified Amounts does not relate to the acts or omissions of the Seller, the Servicer or any of their Affiliates, (C) does not relate to the transfer of such Purchased Receivable from the Seller to such Purchaser and (D) does not relate to the goods or services that are the subject of such Purchased Receivables; (ix) any currency restrictions or foreign political restrictions or regulations; (x) any failure by any Person who is not a party to the Intercreditor Agreement and to whom Seller, Originator or Servicer directs or furnishes payment to pay over to such Purchaser reasonably promptly Collections on account of Purchased Receivables received by it; or (xi) the failure of Seller to perform any of its obligations under this Agreement or any of the other Transaction Documents. The foregoing indemnification shall not apply in the case any claims, losses or liabilities to the extent directly resulting solely from (1) the gross negligence or willful misconduct on of the part of such Indemnified Party, and (ii) any indemnification which has the effect of recourse to such Seller for Party making a claim hereunder as determined in a final non-payment appealable judgment by a court of the Receivables to the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmlesscompetent jurisdiction, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable law.(2) lack of
Appears in 1 contract
Samples: Receivables Sale Agreement and Receivables Purchase Agreement (Constellium Se)
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo and Purchaser (together with its assigns, officers, directors, employees agents, representatives, shareholders, counsel and agents (each of the foregoing Persons being individually called employees, each, an “Indemnified Party”), on demand, ) from and against any and all damages, losses, claims, judgmentslosses and liabilities (including, liabilities and related costs and expenseswithout limitation, including reasonable attorneys’ fees and disbursements fees) (all of the foregoing being collectively called referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result resulting from any of the following:
: (ai) the transfer by a Seller sale to Purchaser of an interest in any Receivable as to any Person other than Xxxxx Fargo;
which the representations and warranties made herein are not true and correct on the Purchase Date therefor; (bii) the breach of any representation or warranty made by the Seller Representative (or any Seller of its respective officers) under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by (except with respect to the Seller Representative or any Seller pursuant hereto or thereto Purchased Receivables) which shall have been false or incorrect in any material respect when made or deemed made;
; (ciii) the failure by the Seller Representative or any Seller to comply with any applicable law, rule or regulation with respect to any Receivable or Related Asset, or the nonconformity of any Receivable or the Related Asset with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
Purchased Receivable; (d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(eiv) the failure to vest and maintain vested in Xxxxx Fargo Purchaser a perfected security interest (as defined in the UCC) in the each Purchased Receivables Receivable and the proceeds thereof, and Collections in respect thereof free and clear of any Lien liens or encumbrances of any kind or nature whatsoever (other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafter;
those granted under this Agreement); (fv) any Dispute of an Account Debtor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables or the related Contracts not being a legal, valid and binding obligation of such Account Debtor enforceable against it in accordance with its terms), or any other claim arising related to such Purchased Receivable (or any portion thereof) excluding any Dispute or claim that (A) relates to the acts or omissions of the Purchaser which are (x) in material violation of applicable law relating to such action or omission or (y) in material breach of its obligations hereunder, (B) does not relate to the acts or omissions of the Seller, the Servicer or any of their Affiliates, (C) does not relate to the transfer of such Purchased Receivable from the breach, as of Seller to the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from Purchaser and (D) does not relate to the goods or services related to that are the subject of such Purchased Receivables; (vi) the commingling by Seller of Collections at any such Receivable or the furnishing time with other funds of or failure to furnish such goods or services;
(g) any failure of the Seller Representative or any Seller to perform its duties or obligations in accordance with the provisions of the Transaction Documents;
other Person; (hvii) any products liability claim, personal injury or property damage suit, environmental liability claim or any other claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with the goods or services that are the subject of any Purchased Receivable with respect thereto; excluding(viii) this Agreement and the transactions contemplated hereby and the purchases of the Purchased Receivables by Purchaser pursuant to the terms hereof, howeverexcluding any Dispute or claim that (A) relates to the acts or omissions of the Purchaser which are (x) in material violation of applicable law relating to such action or omission or (y) in material breach of its obligations hereunder, (B) does not relate to the acts or omissions of the Seller, the Servicer or any of their Affiliates, (C) does not relate to the transfer of such Purchased Receivable from the Seller to the Purchaser and (D) does not relate to the goods or services that are the subject of such Purchased Receivables; or (ix) any currency restrictions or foreign political restrictions or regulations that are in force with respect to any Purchased Receivables on the applicable Purchase Date therefor (it being understood and agreed that if the Purchaser and/or any Purchased Receivables becomes (following the applicable Purchase Date therefor) subject to any such currency or political restriction matters which are not subject to the indemnity or recovery of this clause (ix) as a result of coming into existence or effectiveness after such date of purchaser, Purchaser shall have the right, upon thirty (30) days prior written notice to the Seller, to terminate this Agreement and its commitments hereunder and under the other Transaction Documents). The foregoing indemnification shall not apply in the case any claims, losses or liabilities to the extent resulting solely from (i) Indemnified Amounts to the extent directly resulting from gross negligence or willful misconduct on the part of such an Indemnified PartyParty as determined in a final non-appealable judgment by a court of competent jurisdiction, and (ii) any indemnification lack of credit worthiness of the related Account Debtor or an Account Debtor Insolvency Event or (iii) (A) acts or omissions of the Purchaser which has the effect are (x) in material violation of recourse applicable law relating to such Seller for non-payment action or omission or (y) in material breach of its obligations hereunder, (B) which do not relate to the acts or omissions of the Receivables Seller, the Servicer or any of their Affiliates, (C) which do not relate to the extent any loss arises as a result transfer of a Credit Reason of an Account Debtor. If for any reason such Purchased Receivable from the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party Purchaser and (D) which do not relate to the maximum extent permitted under applicable lawgoods or services that are the subject of such Purchased Receivables. Amounts due hereunder shall accrue interest at the Delinquent Rate.
Appears in 1 contract
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo that the Purchaser may have hereunder or under applicable lawLaw and without duplication of any amount otherwise paid by the Seller hereunder, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo and its assigns, officers, directors, employees and agents (each of the foregoing Persons being individually called an “Indemnified Party”), on demand, Purchaser from and against any and all damages, claims, losses, claimsliabilities, judgments, liabilities and related costs and expenses, expenses (including reasonable attorneys’ legal fees and disbursements on a solicitor and client basis) (all of the foregoing being collectively called referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result resulting from any of the following:
(a1) the transfer by a Seller of an interest in any Receivable to any Person other than Xxxxx Fargo;
(b) the breach of any representation or warranty or statement made or deemed made by the Seller Representative (or any Seller of its officers) under or in connection with this Agreement or any other Transaction Document, Related Document which was incorrect or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto which shall have been false or incorrect incomplete in any material respect when made or deemed to be made;
(c2) the failure by the Seller Representative (as Seller or any Seller as Servicer) to comply with any applicable law, rule or regulation Law with respect to any Pool Receivable or Related Asset, a related Contract or the nonconformity failure of any Pool Receivable or the Related Asset with related Contract to conform to any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account DebtorLaw;
(d3) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(e) the failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear of any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafter;
(f) any Dispute of an Account Debtor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables or the related Contracts not being a legal, valid and binding obligation of such Account Debtor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods or services related to any such Receivable or the furnishing of or failure to furnish such goods or services;
(g) any failure of the Seller Representative or any Seller to perform its duties or obligations (as Seller or as Servicer) in accordance with the provisions of the Transaction Documentshereof or any Related Document or to perform its duties or obligations related to any Pool Receivable under a related Contract;
(h4) any products liability claimliability, personal injury or property damage suit, environmental liability claim or any other similar or related claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, whatsoever nature arising out of or in connection with the goods or services that which are the subject of any Receivable Contract;
(5) the commingling by the Seller (as Seller or as Servicer) or any of its Affiliates of Collections of Pool Receivables at any time with respect thereto; excludingother funds;
(6) any dispute, howeverclaim, offset or defence (iother than a discharge in bankruptcy of an Obligor or a stay in bankruptcy or insolvency proceedings) Indemnified Amounts of an Obligor to the extent directly resulting payment of any related Pool Receivable;
(7) any remittance from gross negligence Collections of Pool Receivables which is required by the Minister of National Revenue pursuant to the Excise Tax Act (Canada);
(8) any order of any Governmental Authority (including the CRTC) after the date of the Original Agreement that adversely affects the value or willful misconduct collectibility of the Pool Receivables;
(9) the imposition of any statutory trust or statutory lien on the part Pool Receivables or the Related Rights in respect of such Indemnified Party, and Taxes;
(ii10) any indemnification which has legal proceeding alleging that the effect Purchaser is inducing a breach of recourse contract in respect of a securitization or similar transaction entered into by the Seller prior to such Seller for non-payment the date of the Receivables Original Agreement; or
(11) any Tax which is imposed on the Purchaser on account of any payment made by the Seller to the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted Purchaser under applicable lawthis Section .
Appears in 1 contract
Indemnities by Seller. (a) Without limiting any other rights which Xxxxx Fargo may have hereunder or under applicable lawthat the Administrative Agent, the Seller Representative Purchaser Parties, the Affected Persons and each Seller hereby agrees to indemnify Xxxxx Fargo and its their respective assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called each, an “Indemnified Party”)) may have hereunder or under Applicable Law, on demand, Seller hereby agrees to indemnify each Indemnified Party from and against any and all damages, losses, claims, judgments, losses and liabilities and related costs and expenses, (including reasonable attorneys’ fees and disbursements Attorney Costs) (all of the foregoing being collectively called referred to as “Seller Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result resulting from this Agreement or any other Transaction Document or the use of proceeds of the following:
Investments or the security interest in respect of any Pool Receivable or any other Sold Assets or Seller Collateral; excluding, however, (a) Seller Indemnified Amounts to the transfer extent a final non-appealable judgment of a court of competent jurisdiction holds that such Seller Indemnified Amounts resulted solely from the gross negligence or willful misconduct by a Seller of an interest in any Receivable to any Person the Indemnified Party seeking indemnification and (b) Taxes (other than Xxxxx Fargoany Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim). Without limiting or being limited by the foregoing, Seller shall pay on demand (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 4.01), to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Seller Indemnified Amounts relating to or resulting from any of the following (but excluding Seller Indemnified Amounts and Taxes described in clauses (a) and (b) above):
(i) any Pool Receivable which Seller or the Master Servicer includes as an Eligible Receivable as part of the Net Pool Balance but which is not an Eligible Receivable at such time;
(bii) the breach of any representation representation, warranty or warranty statement made or deemed made by the Seller Representative (or any Seller of its respective officers) under or in connection with this Agreement Agreement, any of the other Transaction Documents, any Monthly Report, any Interim Report or any other Transaction Document, or any information or report delivered by the Seller Representative or any on behalf of Seller pursuant hereto or thereto which shall have been false untrue or incorrect in any material respect when made or deemed made;
(ciii) the failure by the Seller Representative or any Seller to comply with any applicable law, rule or regulation Applicable Law with respect to any Receivable or Related Asset, or the nonconformity of any Pool Receivable or the Related Asset with related Contract; or the failure of any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller Pool Receivable or the related Account DebtorContract to conform to any such Applicable Law;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(eiv) the failure to vest and maintain vested in Xxxxx Fargo the Administrative Agent a first priority perfected ownership or security interest (as defined in all or any portion of the UCC) Sold Assets or Seller Collateral, in the Purchased Receivables and the proceeds thereof, each case free and clear of any Lien Adverse Claim;
(v) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other than a Lien arising solely as a result similar instruments or documents under the UCC of an act of Xxxxx Fargoany applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable, any other Sold Assets or any Seller Collateral, whether existing at the time of the purchase of such Receivables any Investment or at any time thereaftersubsequent time;
(fvi) any Dispute dispute, claim, offset or defense (other than discharge in bankruptcy of an Account Debtor the Obligor) of the Obligor to the payment of any Pool Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Pool Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the sale of goods or the rendering of services related to any such Pool Receivable or the furnishing of or failure to furnish any such goods or servicesservices or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(gvii) any failure of the Seller Representative to comply with its covenants, obligations and agreements contained in this Agreement or any Seller other Transaction Document or to perform its duties or obligations in accordance timely and fully comply with the provisions of the Transaction DocumentsCredit and Collection Policy in regard to each Pool Receivable;
(hviii) any products liability claim, personal injury or property damage suitliability, environmental liability claim or any other claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with the any Pool Receivable or other merchandise, goods or services that which are the subject of or related to any Receivable Pool Receivable;
(ix) the commingling 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 the use of proceeds of any Investments by Seller or in respect of any Pool Receivable, any other Sold Assets or any Seller Collateral or any related Contract;
(xi) any setoff with respect thereto; excluding, however, to any Pool Receivable;
(i) Indemnified Amounts to the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and (iixii) any indemnification which has claim brought by any Person other than an Indemnified Party arising from any activity by Seller or any Affiliate of Seller in servicing, administering or collecting any Pool Receivable;
(xiii) [Reserved];
(xiv) any failure of a Collection Bank (other than Xxxxx or an Affiliate thereof) to comply with the effect of recourse to such Seller for non-payment terms of the Receivables applicable Control Agreement, the termination by a Collection Bank (other than Xxxxx or an Affiliate thereof) of any Control Agreement or any amounts (including in respect of any indemnity) payable by the Administrative Agent to a Collection Bank (other than Xxxxx or an Affiliate thereof) under any Control Agreement;
(xv) the extent failure or delay by the Originator to provide any loss arises Obligor with an invoice or other evidence of indebtedness;
(xvi) the use of proceeds of any Investment by Seller; or
(xvii) any reduction in Capital as a result of the distribution of Collections if all or a Credit Reason portion of an Account Debtor. If such distributions shall thereafter be rescinded or otherwise must be returned for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable lawreason.
Appears in 1 contract
Samples: Receivables Purchase Agreement (MSC Industrial Direct Co Inc)
Indemnities by Seller. (a) Without limiting any other rights which Xxxxx Fargo that the Buyer may have hereunder or under applicable lawApplicable Law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo the Buyer and its assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called an “Indemnified Party”), forthwith on demand, from and against any and all damages, losses, claims, judgmentstaxes, liabilities and related costs and expenses, including reasonable attorneys’ fees (which attorneys may be employees of the Buyer) and disbursements (all of the foregoing being collectively called referred to as “Indemnified Amounts”) awarded against or incurred by any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this Agreement or the followingacquisition, either directly or indirectly, by the Buyer of the Originator Collateral Debt Obligations, excluding, however:
(ai) Indemnified Amounts to the transfer by a Seller extent that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of an interest in any Receivable to any Person other than Xxxxx Fargothe Indemnified Party seeking indemnification;
(bii) Indemnified Amounts to the breach extent the same includes losses in respect of Originator Collateral Debt Obligations that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party; provided, however, that nothing contained in this sentence shall limit the liability of the Seller or limit the recourse of Buyer to the Seller for amounts otherwise specifically provided to be paid by the Seller under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, the Seller shall indemnify Buyer for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Originator Collateral Debt Obligations, regardless of whether reimbursement therefor would constitute recourse to the Seller) relating to or resulting from:
(i) any Originator Collateral Debt Obligation treated as or represented by the Seller to be an Eligible Collateral Debt Obligation that is not at the applicable time an Eligible Collateral Debt Obligation;
(ii) any representation or warranty made or deemed made by the Seller Representative or any Seller of its officers under or in connection with this Agreement Agreement, any other Sale Document or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto thereto, which shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(ciii) the failure by the Seller Representative or any Seller to comply with any applicable lawterm, rule provision or regulation covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Receivable Originator Collateral Debt Obligation or Related Assetthe Collateral Debt Obligation Documents related thereto, or the nonconformity of any Receivable Originator Collateral Debt Obligation, the Related Property or the Related Asset Collateral Debt Obligation Documents related thereto with any such applicable law, rule or regulationApplicable Law, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative to perform its duties, express or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount implied, with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorOriginator Collateral Debt Obligation;
(eiv) the failure to vest and maintain vested in Xxxxx Fargo a perfected security interest any dispute, claim, offset or defense (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear of any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time discharge in bankruptcy of the purchase Obligor) of such Receivables or at any time thereafter;
(f) any Dispute of an Account Debtor the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller Originator Collateral Debt Obligation (including, without limitation, a defense based on such Receivables Originator Collateral Debt Obligation or the Collateral Debt Obligation Documents related Contracts thereto not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods or services related to any such Receivable or the furnishing of or failure to furnish such goods or services;
(gv) any failure of the Seller Representative or any Seller to perform its duties or obligations under the Originator Collateral Debt Obligations or in accordance with the provisions of the Transaction Documentsthis Agreement or any other Sale Document;
(hvi) any products liability claiminvestigation, personal injury litigation or property damage suit, environmental liability claim proceeding related to or arising from this Agreement or any other claim or action by Sale Document, the transactions contemplated hereby, the use of the proceeds of a party purchase hereunder, the ownership of whatever sort, whether in tort, contract the Originator Collateral Debt Obligations or any other legal theoryinvestigation, arising out of litigation or in connection with the goods or services that are the subject of any Receivable with respect thereto; excluding, however, (i) Indemnified Amounts proceeding relating to the extent directly resulting from gross negligence or willful misconduct on the part of such Seller in which any Indemnified Party, and (ii) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises Party becomes involved as a result of any of the transactions contemplated hereby;
(vii) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, any Originator Collateral Debt Obligation, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(viii) the failure of the Seller to or any of its agents or representatives to remit to the Buyer or its assignees, Collections remitted to the Seller or any such agent or representative in accordance with the terms hereof or the commingling by the Seller of any Collections;
(ix) any action or omission by the Seller which causes the occurrence of a Credit Reason Subordination Event;
(x) any action or omission by Seller which reduces or impairs the rights of an Account Debtor. Buyer with respect to any Originator Collateral Debt Obligation or the value of any such Originator Collateral Debt Obligation; and
(xi) any attempt by any Person to void the purchases made hereunder under statutory provisions or common law or equitable action.
(b) If for any reason the indemnification provided above in this Section 9.15 is unavailable to an the Indemnified Party or is insufficient to hold such an Indemnified Party harmless, then such the Seller shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the maximum extent permitted relative benefits received by such Indemnified Party on the one hand and the Seller, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(c) The obligations of the Seller under applicable lawthis Section 9.15 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
Appears in 1 contract
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo may have hereunder or under applicable law, the The Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo the Buyer, the Operating Agent and its assigns, officers, directors, employees their respective Affiliates and agents (each of the foregoing Persons being individually called an “Indemnified Party”), on demand, Collection Agent from and against any and all damages, losses, claims, judgments, liabilities and related reasonable costs and expenses, including reasonable attorneys’ ' fees and disbursements together with VAT thereon (all of the foregoing being collectively called “referred to as "Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result relating to this Agreement or the ownership of Purchased Receivables, excluding, however, (a) such amounts resulting from gross negligence or wilful misconduct on the part of the followingPerson who would otherwise be entitled to claim such indemnification or (b) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Purchased Receivables or for losses arising out of late Collections. Without limiting the foregoing, Indemnified Amounts include amounts relating to or resulting from:
(a1) the transfer by a Seller of an interest in any Receivable to any Person other than Xxxxx Fargo;
(b) the breach of reliance on any representation or warranty made or deemed made by the Seller Representative or any Seller under or in connection with this Agreement Agreement, or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller the Collection Agent pursuant hereto or thereto to this Agreement, which shall have been false or incorrect in any material respect when made or deemed mademade or delivered (to the extent that such amounts have not already been recovered by the applicable indemnified party pursuant to Clause 5(D));
(c2) the failure by the Seller Representative or any Seller to comply with any term, provision or covenant contained in this Agreement or with any applicable law, rule or regulation with respect to any Receivable Receivable, the related Contract or the Related AssetSecurity, or the nonconformity of any Receivable or the related Contract or the Related Asset Security with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(e3) the failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Buyer ownership of each Purchased Receivables and the proceeds thereofReceivable, free and clear of any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, Adverse Claim whether existing at the time of the purchase Purchase of such Receivables Receivable or at any time thereafter, excluding any such Adverse Claim created by the Buyer;
(f4) any Dispute dispute, claim, offset or defence (other than discharge in bankruptcy or winding up by reason of an insolvency or analogous event of the Account Debtor) of the Account Debtor to the payment of any Receivable which is, or is purported to be, a Purchased Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense defence based on such Receivables Receivable or the related Contracts Contract not being a legal, valid valid, binding and binding enforceable obligation of such Account Debtor enforceable against it in accordance with its termsDebtor), or any other claim arising resulting from the breach, as sale of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods or services related to any such Receivable or the furnishing of or failure to furnish such goods or services;
(g5) any failure of the Seller Representative Seller, as Collection Agent or any Seller otherwise, to perform its duties or obligations in accordance with the provisions of the Transaction Documentsthis Agreement;
(h6) the Buyer, at the request or with the approval of the Seller, contracting for or arranging foreign exchange transactions and/or funding in connection with any anticipated Purchase and such Purchase does not in fact take place as a result of the Seller not delivering a Notice of Sale, the operation of Clause 3(B) or any other provision of this Agreement, or a sale of Receivables not being effected in relation to a Notice of Sale by reason of any event described in Clause 11(D)(l), (2), (3) and (4) or any breach by the Seller (in whatever capacity) of any of its obligations under or in connection with this Agreement;
(7) any products liability claim, or personal injury or property damage suitclaim, environmental liability claim or any other similar or related claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, sort arising out of or in connection with the goods goods, merchandise or services that which are the subject of any Receivable with respect theretoor Contract; excluding, however, and
(i) Indemnified Amounts 8) the transfer of an ownership interest in any Receivable other than an Eligible Receivable (to the extent directly resulting from gross negligence that such amounts have not already been recovered by the applicable indemnified party pursuant to Clause 5(D)). The Operating Agent will provide the Seller with a certificate or willful misconduct on certificates showing in reasonable detail the part basis for the calculation of Indemnified Amounts claimed under this Clause 15(B) provided, for the avoidance of doubt, that the provision of such Indemnified Party, and (ii) certificate or certificates shall not be a condition for the making of any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted claim under applicable lawthis Clause 15(B).
Appears in 1 contract
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo that the Agent or the Purchasers, may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo (and its pay upon demand to) the Agent, each of the Purchasers and each of the respective assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called (each, an “Indemnified Party”), on demand, ) from and against any and all damages, losses, claims, judgmentstaxes, liabilities liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent or another Indemnified Party) and disbursements (all of the foregoing being collectively called 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 followingacquisition, either directly or indirectly, by any Purchaser of an interest in the Receivables, excluding, however:
(a) Indemnified Amounts to the transfer by extent a Seller final judgment of an interest in any Receivable to any Person other than Xxxxx Fargoa court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the breach extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(c) (i) taxes on or measured by the overall net income of such Indemnified Party imposed by the United States, the jurisdiction under the laws of which such Indemnified Party is incorporated or otherwise organized, in which such Indemnified Party is a resident for income tax purposes, or in which such Indemnified Party’s principal executive office or lending office is located, in each case, including any political subdivision thereof, (ii) branch profits taxes, franchise taxes, or similar taxes imposed on the Indemnified Party, and (iii) other taxes imposed by any jurisdiction in which such Indemnified Party is subject to taxation for reasons other than the execution, delivery, performance, filing, recording, and enforcement of, and the other activities contemplated in this Agreement and the Indemnified Party’s participation in the transactions contemplated by this Agreement, to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by any Purchaser, of Receivables as a loan or loans by any Purchaser, to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of Seller or limit the recourse of any Purchaser, to Seller for amounts otherwise specifically provided to be paid by Seller under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify the Agent and the Purchasers, for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller) relating to or resulting from:
(a) PLEASE do not delete this hidden level
(i) any representation or warranty made by Seller or (to the extent Seller Representative actually receives indemnity under a Receivables Sale Agreement) the Originator (or any Seller officers of any such Person) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller such Person pursuant hereto or thereto thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(cii) the failure by Seller or (to the extent Seller Representative or any Seller actually receives indemnity under a Receivables Sale Agreement) the Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Related AssetContract related thereto, or the nonconformity of any Receivable or the Related Asset Contract included therein with any such applicable law, rule or regulation, regulation or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or (to the extent Seller actually receives indemnity under a Receivables Sale Agreement) any other circumstance beyond the control failure of the related Seller Originator to keep or the related Account Debtor;
(d) the failure by the Seller Representative perform any of its obligations, express or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount implied, with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorContract;
(eiii) any failure of Seller or (to the extent Seller actually receives indemnity under a Receivables Sale Agreement) the failure Originator to vest and maintain vested perform its duties, covenants or other obligations in Xxxxx Fargo a perfected security interest (as defined in accordance with the UCC) in the Purchased Receivables and the proceeds thereof, free and clear provisions of this Agreement or any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafterTransaction Document;
(fiv) any Dispute products liability, personal injury or damage suit, or other similar claim arising out of an Account Debtor or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(gvi) the commingling by Seller or (to the extent Seller actually receives indemnity under a Receivables Sale Agreement) by the Originator of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of any Purchase, the Purchased Assets or any other investigation, litigation or proceeding relating to Seller or (to the extent Seller actually receives indemnity under a Receivables Sale Agreement) the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Amortization Event of the type described in Section 9.1(g) with respect to any Seller Party;
(x) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any of the Seller Representative Purchased Assets from the Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Seller to perform its duties give reasonably equivalent value to the Originator under a Receivables Sale Agreement in consideration of the transfer by the Originator of any Receivable, or obligations 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 accordance the Agent for the benefit of the Purchasers or to transfer to the Agent for the benefit of the Purchasers, a valid first priority perfected security interest in the Purchased Assets, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(xii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC, the PPSA (as applicable) or any comparable law of any applicable jurisdiction or other applicable laws with respect to any Purchased Assets, and the proceeds thereof, whether at the time of any Purchase or at any subsequent time;
(xiii) any action or omission by Seller which reduces or impairs the rights of the Agent or any Purchaser with respect to any Purchased Assets or the value of any Purchased Assets;
(xiv) any attempt by any Person to void any Purchase or the Agent’s security interest in the Purchased Assets under statutory provisions or common law or equitable action;
(xv) the failure of any Receivable included in the calculation of the Net Pool Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xvi) any civil penalty or fine assessed by OFAC against, and all reasonable costs and expenses (including counsel fees and disbursements) incurred in connection with defense thereof by Agent or any Purchaser as a result of the funding of the Commitments or the acceptance of payments due under the Transaction Documents;
(hxvii) any products liability claimpayment required to be made by the Agent to the Collateral Agent under the Intercreditor Agreement or by the Collateral Agent under any Collection Account Agreement; and
(xviii) any present or future Taxes (as defined in Section 10.1.3) or similar charges or imposts, personal injury together with all interest and penalties thereon or property damage suitwith respect thereto and all out-of-pocket costs and expenses, environmental liability claim including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of any interest in the Receivables or any other claim Related Security, the financing of such purchase or action ownership by a party Seller or the servicing of whatever sortthe Receivables, whether in tortincluding without limitation, contract any withholding taxes that are imposed by Canada or any political subdivision thereof on any Indemnified Party or that are withheld from any Collections or other legal theorypayments made hereunder, arising out and any such Taxes or similar charges or imposts that are imposed on any Indemnified Party as a result of such Indemnified Party having a permanent establishment in Canada or being found to be carrying on business in connection with Canada (unless it acquired such permanent establishment or commenced to be carrying on business in Canada otherwise than as a result of the goods transactions contemplated hereby or services by the other Transaction Documents); provided that promptly following an Authorized Officer of any Indemnified Party becoming aware of receipt (the “Receipt”) by such Indemnified Party of a written claim (the “Claim”) from Canadian tax authorities for payment of any Taxes in respect of which this clause (xviii) would apply, such Indemnified Party shall notify Seller thereof; and provided, further, that failure or delay in giving any such notice shall not affect the rights of such Indemnified Party under this clause (xviii) except that, if such notice is not given within 30 days after such Authorized Officer becomes aware of such Receipt, and no employee or advisor of Seller or any Affiliate thereof has, within such 30-day period, otherwise learned of such Claim (or that Canadian tax authorities have made or may make a claim for payment of any Taxes that are the subject of such Claim), Seller will not be liable to such Indemnified Party in respect of any Receivable interest or penalties under this clause (xviii) on or with respect thereto; excluding, however, (i) Indemnified Amounts to such Taxes to the extent directly resulting from gross negligence that such interest or willful misconduct on penalty accrues after the part end of such Indemnified Party, 30-day period and before the date an employee or advisor of Seller or any Affiliate thereof learns of such Claim (ii) any indemnification which has the effect of recourse to such Seller or that Canadian tax authorities have made or may make a claim for non-payment of any Taxes that are the Receivables to the extent any loss arises as a result subject of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable lawClaim).
Appears in 1 contract
Samples: Receivables Purchase Agreement (Wolverine Tube Inc)
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo may have Wells max xxxe hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo Wells anx xxx affiliates and its and their assigns, successors, officers, directors, employees employees, representatives, attorneys and agents (each of the foregoing Persons being individually called an “Indemnified Party”), on upon demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any of them arising out of or in connection with any Transaction Document, the transactions contemplated thereby, or the ownership, maintenance or funding, directly or indirectly, of the Purchased Receivables (or any of them) or otherwise arising out of or resulting from the actions or inactions of Seller or any of its Affiliates as a result of the following:
(a) the transfer by a Seller of an interest in any Purchased Receivable to any Person other than Xxxxx FargoWells;
(bx) the breach of any xny representation or warranty made by the Seller Representative or any Seller under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by the Seller Representative or Servicer (during any period that Seller pursuant hereto or thereto is Servicer) which shall have been false false, misleading or incorrect in any material respect when made or deemed made;
(c) the failure by the Seller Representative or any Seller to comply with any applicable law, rule or regulation with respect to any Receivable or Related AssetReceivable, or the nonconformity of any Receivable or the Related Asset Contract with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(e) the failure to vest and maintain vested in Xxxxx Fargo Wells an xxxxrship interest and a first-priority perfected security interest (as defined in within the meaning of the UCC) in the Purchased Receivables and the proceeds thereof, free and clear of any Lien (other than a Lien arising solely as a result in favor of an act of Xxxxx FargoWells), whether xxxxxer existing at the time of the purchase of such Receivables or at any time thereafter;
(e) any Dispute or other claim resulting from the services performed or merchandise furnished in connection with any Purchased Receivable or the furnishing or failure to furnish such services or merchandise or relating to collection activities with respect to any Purchased Receivable;
(f) any Dispute of an Account Debtor suit or claim related to the payment of any Receivable or purported Receivable generated by the Seller Representative Purchased Receivable, any Contract or any Seller Transaction Document (including, without limitation, including a defense based on such Receivables or the related Contracts not being a legal, valid and binding obligation of such Account Debtor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, breach of the eligibility criteria set forth in the defined term “Eligible Receivable” (including by virtue of Wells’ rxxxxxce on information set forth in any Posting by Seller) or otherwise resulting from the goods or services related to any such Purchased Receivable or the furnishing of or failure to furnish such goods or services;
(g) any failure of the Seller Representative or any Seller to perform its covenants, duties or obligations in accordance with the provisions of the any Transaction DocumentsDocument;
(h) any suit, demand, claim or other dispute arising in whole or in part out of Seller’s use of the Platform in a manner not expressly contemplated hereunder;
(i) any products liability claim, personal injury or property damage suit, environmental liability claim or any other claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with the goods or services that are the subject of any Receivable Purchased Receivable;
(j) the failure of Seller to notify any Account Debtor of the sale of the Purchased Receivables to Wells puxxxxxt to this Agreement;
(k) the commingling by Seller of Collections at any time with respect theretoother funds of Seller or any other Person;
(l) any civil penalty or fine assessed by any other governmental authority administering any Anti-Corruption Laws or Sanctions, and all reasonable costs and expenses (including reasonable documented legal fees and disbursements) incurred in connection with defense thereof by, any Indemnified Party in connection with the Transaction Documents as a result of any action of Seller or any of its Affiliates; and
(m) any failure by the Seller to reimburse Wells fox xxx Receivables review in accordance with Section 5.1(f). excluding, however, (i) Indemnified Amounts to the extent directly solely resulting from bad faith, gross negligence or willful misconduct on the part of such Indemnified Party, Party as determined in a final non-appealable judgment by a court of competent jurisdiction and (ii) any indemnification which has the effect of recourse to such Seller for non-payment of the Receivables to the extent any loss arises solely as a result of a Credit Reason either (i) an Insolvency Event of an Account Debtor, or (ii) such Account Debtor’s failure to pay its debts as they become due as a result of its financial condition. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable law.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Hayward Holdings, Inc.)
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo that Buyer may have hereunder or under applicable law, the Seller Representative and each Seller hereby agrees to indemnify Xxxxx Fargo (and pay upon demand to) Buyer and its assigns, officers, directors, agents and employees and agents (each of the foregoing Persons being individually called each, an “Indemnified Party”), on demand, ) from and against any and all damages, losses, claims, judgmentstaxes, liabilities liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of Buyer or any such assign) and disbursements (all of the foregoing being collectively called 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 followingacquisition, either directly or indirectly, by Buyer of an interest in the Receivables, excluding, however:
(a) Indemnified Amounts to the transfer by extent a Seller final judgment of an interest in any Receivable to any Person other than Xxxxx Fargoa court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the breach extent the same includes losses in respect of such Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(c) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; provided, however, that nothing contained in this sentence shall limit the liability of Seller or limit the recourse of Buyer to Seller for amounts otherwise specifically provided to be paid by Seller under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify Buyer for Indemnified Amounts relating to or resulting from:
(i) any representation or warranty made by the Seller Representative (or any Seller officers of Seller) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto for which Buyer has not received a Deemed Collection that shall have been false or incorrect in any material respect when made or deemed made;
(cii) the failure by the Seller Representative or any Seller Seller, to comply with any applicable law, rule or regulation with respect to any Receivable or Related AssetContract related thereto, or the nonconformity of any such Receivable or the Related Asset Contract included therein with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations regulation or any other circumstance beyond the control failure of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities keep or perform any VAT related the VAT Invoice Amount of its obligations, express or implied, with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account DebtorContract;
(eiii) any failure of Seller to perform its duties, covenants or other obligations in accordance with the failure to vest and maintain vested in Xxxxx Fargo a perfected security interest (as defined in the UCC) in the Purchased Receivables and the proceeds thereof, free and clear provisions of this Agreement or any Lien other than a Lien arising solely as a result of an act of Xxxxx Fargo, whether existing at the time of the purchase of such Receivables or at any time thereafterTransaction Document;
(fiv) any Dispute products liability, personal injury or damage, suit or other similar claim arising out of an Account Debtor or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a (A) defense based on such Receivables Receivable or the related Contracts Contract not being a legal, valid and binding obligation of such Account Debtor Obligor enforceable against it in accordance with its termsterms and/or (B) a claim that the sale or other assignment of all or any part of Seller’s (or any of its assignees’) rights under the related Contract violates any anti- assignment clause contained therein), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods sale of the merchandise or services service related to any such Receivable or the furnishing of or failure to furnish such goods merchandise or services;
(gvi) the commingling of Collections of Receivables any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of the Purchase from Seller, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Seller in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Termination Event described in Section 5.1(d);
(x) 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 the Seller Representative or any Seller to perform its duties or obligations in accordance with the provisions of the Transaction DocumentsAdverse Claim (other than any Adverse Claim permitted hereunder);
(hxi) any products liability claimthe failure to have filed, personal injury or property damage suit, environmental liability claim or any delay in filing, financing statements or other claim similar instruments or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with documents under the goods or services that are the subject UCC of any Receivable applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto; excluding, however, (i) Indemnified Amounts to the extent directly resulting from gross negligence or willful misconduct on the part of such Indemnified Party, and the proceeds of any thereof, whether at the time of the Purchase or at any subsequent time;
(iixii) any indemnification action or omission by Seller which has reduces or impairs the effect rights of recourse Buyer with respect to any Receivable or the value of any such Receivable;
(xiii) any attempt by any Person to void the Purchase from Seller for non-payment hereunder under statutory provisions or common law or equitable action; and
(xiv) any inability of the Receivables Buyer to the extent review any loss arises Contract or to exercise its rights under any Contract or this Agreement as a result of a Credit Reason of an Account Debtor. If for confidentiality provision in any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable by such Indemnified Party to the maximum extent permitted under applicable lawContract.
Appears in 1 contract
Indemnities by Seller. Without limiting any other rights which Xxxxx Fargo any RPA Indemnified Party (as defined below) may have hereunder or under applicable law, the Seller Representative and each Seller hereby severally agrees to indemnify Xxxxx Fargo WPS Xxxxx, each of its successors, permitted transferees and its assignsassigns (including, for this purpose, the assignment made pursuant to Section 11.03 of the Insurance Policy to the Insurer), and all officers, directors, shareholders, controlling Persons, employees and agents of any of the foregoing (each of the foregoing Persons being individually called an “a "RPA Indemnified Party”"), forthwith on demand, from and against any and all damages, losses, claimsclaims (whether on account of settlements or otherwise), judgments, liabilities and related reasonable costs and expenses, expenses (including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “Indemnified Amounts”disbursements) awarded against or incurred by any of them arising out of or as a result of any of the following:following (all of the foregoing being collectively called "RPA Indemnified Losses"):
(a) any representation or warranty made in writing by Seller (or any of its Authorized Officers) under or in connection with any of the transfer Transaction Documents, any Monthly Report, any Interim Report or any other information or report delivered by Seller or the Servicer (for so long as the Servicer is a Seller of an interest in any Receivable WPS Person) shall have been false, incorrect or materially misleading when made or deemed made or omitted to any Person other than Xxxxx Fargostate material facts necessary to make the statements made not misleading;
(b) the breach of any representation or warranty made by the Seller Representative or any Seller under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by the Seller Representative or any Seller pursuant hereto or thereto which shall have been false or incorrect in any material respect when made or deemed made;
(c) the failure by the Seller Representative or any Seller to comply with any applicable law, rule or regulation with respect to any Receivable or any Related AssetAsset or to comply with any Contract related thereto, or the nonconformity of any Receivable Receivable, the related Contract or the any Related Asset Assets with any such applicable law, rule or regulation, or resulting from an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations or any other circumstance beyond the control of the related Seller or the related Account Debtor;
(d) the failure by the Seller Representative or any Seller to remit to the appropriate tax authorities any VAT related the VAT Invoice Amount with respect to any Purchased Receivable that has not been paid in full for any reason other than the claim or existence of a Dispute or as a result of a Credit Reason with respect to the related Account Debtor;
(ec) the failure to vest and maintain vested in WPS Xxxxx Fargo and its assigns a first priority perfected security ownership interest (as defined in the UCC) in Receivables, the Purchased Receivables Related Assets, the related Collections and the proceeds thereofof each of the foregoing, free and clear of any Lien Adverse Claim (other than a Lien arising solely as a result an Adverse Claim created in favor of an act WPS Xxxxx pursuant to this Purchase Agreement or in favor of Xxxxx Fargothe Administrator on behalf of the Secured Parties pursuant to the Amended and Restated AITA), whether existing at the time of the purchase sale of such Receivables Receivable or at any time thereafter;
(f) any Dispute of an Account Debtor to the payment of any Receivable or purported Receivable generated by the Seller Representative or any Seller (including, without limitation, a defense based on such Receivables or the related Contracts not being a legal, valid and binding obligation of such Account Debtor enforceable against it in accordance with its terms), or any other claim arising from the breach, as of the Purchase Date, of the eligibility criteria set forth in the defined term “Eligible Receivable” or otherwise resulting from the goods or services related to any such Receivable or the furnishing of or failure to furnish such goods or services;
(gd) any failure of the Seller Representative or any Seller to perform its duties or obligations in accordance with the provisions of the Transaction Documents;
(he) any products liability claim, personal injury or property damage suit, environmental liability claim or any other claim or action by a party other than WPS Xxxxx or a WPS Person of whatever sort, whether sounding in tort, contract or any other legal theory, arising out of or in connection with the goods or services that are the subject of any Receivable or the Related Assets with respect thereto or Collections thereof;
(f) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdic- tion or other applicable laws with respect to any Receivables or the Related Assets or Collections, whether at the time of any sale or at any subsequent time;
(g) any dispute, claim, offset or defense (other than the discharge in bankruptcy) of an Obligor to the payment of any Receivable or Related Asset, or Related Asset, 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 merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(h) any tax or governmental fee or charge (other than franchise taxes and taxes on or measured by the net income of WPS Xxxxx or any of its assignees), all interest and penalties thereon or with respect thereto; excluding, howeverand all reasonable out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables or any Related Asset connected with any such Receivables or in any goods which secure any such Receivable or Related Asset;
(i) Indemnified Amounts any transfer by Seller of any interest in any Receivable other than the transfer of Receivables and related property by the Seller to WPS Xxxxx pursuant to this Purchase Agreement; and
(j) any claim of breach by any Seller of any related Contract with respect to any Receivable. Notwithstanding the foregoing (and with respect to clause (ii) below, without prejudice to the extent directly rights that WPS Xxxxx may have pursuant to the other provisions of this Purchase Agreement or the provisions of any of the other Transaction Documents), in no event shall any RPA Indemnified Party be indemnified for any RPA Indemnified Losses (i) resulting from gross negligence or willful misconduct on the part of such RPA Indemnified Party, and (ii) any indemnification which has to the effect extent the same includes losses in respect of Receivables and reimbursement therefor that would constitute credit recourse to such Seller for non-payment the amount of any Receivable or Related Asset not paid by the related Obligor, (iii) resulting from the action or omission of the Receivables Servicer (unless the Servicer is a WPS Person), (iv) to the extent that the same are or result from lost profits (except to the extent any loss arises such lost profits are incurred under Sections 4.02 or 4.03 of the Amended and Restated AITA), (v) to the extent the same are or result from taxes on or measured by the net income of such RPA Indemnified Party and (vi) to the extent the same constitute consequential, special or punitive damages (except to the extent any such consequential, special or punitive damages are actually imposed on an RPA Indemnified Party as a result of a Credit Reason of an Account Debtor. If for any reason the indemnification provided above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless, then such Seller shall contribute to the amount paid or payable claim brought by such Indemnified Party to the maximum extent permitted under applicable lawa third party).
Appears in 1 contract
Samples: Receivables Purchase Agreement (Westpoint Stevens Inc)
