Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction: (i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation; (ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered; (iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets; (iv) any litigation, proceedings or investigation against the Servicer; (v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter; (vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds; (vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt; (viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder; (ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties; (x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or (xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement. (b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error. (c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a). (d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest. (e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets. (f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement. (g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 7 contracts
Samples: Loan and Servicing Agreement, Loan and Servicing Agreement (TCG Bdc, Inc.), Loan and Servicing Agreement (Carlyle GMS Finance, Inc.)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account or the URCA Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 7 contracts
Samples: Loan and Servicing Agreement (SLR Investment Corp.), Loan and Servicing Agreement (SLR Investment Corp.), Ninth Amendment to the Loan and Servicing Agreement (SLR Senior Investment Corp.)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer hereby agrees to indemnify each of the Indemnified Party Parties forthwith on demand, from and against any and all Indemnified Amounts, Amounts awarded against or incurred by any Indemnified Party as a consequence of them arising out of or relating to the Servicer’s performance of, or failure to perform, any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith its obligations under or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate Transaction Document, or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (or any of its officers officers) under or in connection with this Agreement or any other Transaction Document, any Servicing Monthly Report, Servicer’s Certificate Weekly Report, computation of Cash Collateral Payment or any other information or report delivered by or on behalf of the Servicer pursuant heretoServicer, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) , as the case may be, or the failure by of the Servicer to comply with (A) any termapplicable law, provision rule or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it regulation with respect to any Portfolio Assets;
Receivable or the related Contract and Invoice. Notwithstanding the foregoing, in no event shall any Indemnified Party be awarded any Indemnified Amounts (iva) any litigation, proceedings to the extent determined by a court of competent jurisdiction to have resulted from gross negligence or investigation against willful misconduct on the Servicer;
part of such Indemnified Party or (vb) any action or inaction by as recourse for Indemnified Amounts to the Servicer that causes extent the Collateral Agent, for the benefit same includes losses in respect of Receivables which are uncollectible on account of the Secured Partiesinsolvency, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear bankruptcy or lack of any Lien other than Permitted Liens, whether existing at the time creditworthiness of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts)Obligor. The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 13.2 (and subject to the exceptions set forth therein) is unavailable to the an Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilitiesharmless, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such lossesloss, claimsclaim, damages damage or liabilities liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 4 contracts
Samples: Credit and Security Agreement (Quest Diagnostics Inc), Credit and Security Agreement (Quest Diagnostics Inc), Credit and Security Agreement (Quest Diagnostics Inc)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionhereunder:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) comply with any material term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, Agreement or (B) comply with any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first first-priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) except as permitted under this Agreement, the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(ix) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements and/or covenants set forth in Article IV, Article V or Article VI or this Agreement; and/or
(x) failure or delay in reasonably assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with reasonable instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.028.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(ed) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(fe) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Bank or the Collateral Custodian and the termination of this Agreement.
(gf) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 4 contracts
Samples: Loan and Servicing Agreement (FS KKR Capital Corp), Loan and Servicing Agreement (FS KKR Capital Corp), Loan and Servicing Agreement (Corporate Capital Trust, Inc.)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer (if LEAF Financial or one of its Affiliates) hereby agrees to indemnify each Indemnified Party from and against any and all damages, losses, claims, liabilities and related costs and expenses (including reasonable attorneys’ fees and disbursements) (all of the foregoing being collectively referred to as “Servicer Indemnified Amounts, awarded against ”) suffered or incurred sustained by any Indemnified Party as a consequence of any of the following, excluding, however, Servicer Indemnified Amounts to the extent resulting solely from (A) any gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined hereunder, (B) taxes (including interest and penalties imposed thereon) imposed by the jurisdiction in a final decision which such Indemnified Party’s principal executive office is located, on or measured by a court the overall net income of competent jurisdictionsuch Indemnified Party; (C) Indemnified Amounts to the extent that they are or result from lost profits (other than principal, interest and Fees with respect to the Loans); and (D) Indemnified Amounts to the extent the same includes losses that arise solely due to Receivables being uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor or would constitute recourse to Servicer for such losses:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or Monthly Remittance Report or other report prepared by it hereunder, of any Loan Assets Pledged Receivables which were not Eligible Loan Assets Receivables as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (if LEAF Financial or one of its Affiliates) or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant heretoAgreement, which shall have been false, false or incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer (if LEAF Financial or any of its Affiliates) to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction DocumentAgreement, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable law, rule or regulation applicable to it with respect to any Portfolio Pledged Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer (if LEAF Financial or one of its Affiliates) that causes the Collateral Agent, for the benefit of the Secured Parties, Agent not to have a first priority perfected security interest in the Receivables that are, or are purported to be, Pledged Receivables, together with all related Other Conveyed Property, Collections, Related Security and other Pledged Assets related thereto (including without limitation, the Borrower’s interest in and to any and all Obligor Collateral Portfoliowith respect to such Receivables), free and clear of any Lien other than Permitted Liens, Adverse Claim whether existing at the time of the related Advance Borrowing or any time thereafter;
(viv) the commingling by the Servicer (if LEAF Financial or one of its Affiliates) of the Collections required to be remitted to the Collection Account of Pledged Receivables at any time with any other funds;
(viivi) any failure of the Servicer (if LEAF Financial or one of its Affiliates) or any of its agents or representatives (including, without limitation, agents, representatives and employees of such the Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets of Pledged Receivables remitted to the Servicer or any such agent or representative within two Business Days of receiptrepresentative;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ixvii) the failure by the Servicer (if LEAF Financial or any of its Affiliates) to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;; and/or
(xviii) failure or delay in assisting a successor notwithstanding whether any Pledged Receivable shall have been repurchased by the Servicer in assuming each and all of the Servicer’s obligations pursuant to service and administer the Collateral PortfolioSection 6.20, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of this AgreementVI.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Servicer Indemnified Amounts shall be paid by the Servicer (if LEAF Financial or one of its Affiliates) to the Administrative Agent on behalf Lender, for the benefit of the applicable Indemnified Party Party, within five two (2) Business Days following receipt by the Servicer of the Administrative AgentLender’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent Lender shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent Lender of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Lender, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party indemnifying party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 4 contracts
Samples: Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.), Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.), Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionhereunder:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral AgentTrustee, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) except as permitted by this Agreement, the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(xix) the failure or delay in assisting a successor by the Servicer in assuming each and all to comply with any of the Servicer’s obligations covenants relating to service and administer the Collateral Portfolio, or failure or delay Hedging Agreement in complying accordance with instructions from the Administrative Agent with respect theretoTransaction Documents; orand/or
(xix) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of or this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 8.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.028.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 8.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Trustee or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 4 contracts
Samples: Loan and Servicing Agreement (Ares Capital Corp), Loan and Servicing Agreement (Ares Capital Corp), Omnibus Amendment (Ares Capital Corp)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer (if LEAF Financial or one of its Affiliates) hereby agrees to indemnify each Indemnified Party from and against any and all damages, losses, claims, liabilities and related costs and expenses (including reasonable attorneys’ fees and disbursements) (all of the foregoing being collectively referred to as “Servicer Indemnified Amounts, awarded against ”) suffered or incurred sustained by any Indemnified Party as a consequence of any of the following, excluding, however, Servicer Indemnified Amounts to the extent resulting solely from (A) any gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined hereunder, (B) taxes (including interest and penalties imposed thereon) imposed by the jurisdiction in a final decision which such Indemnified Party’s principal executive office is located, on or measured by a court the overall net income of competent jurisdictionsuch Indemnified Party; (C) Indemnified Amounts to the extent that they are or result from lost profits (other than principal, interest and Fees with respect to the Loans); and (D) Indemnified Amounts to the extent the same includes losses that arise solely due to Receivables being uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor or would constitute recourse to Servicer for such losses:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Facility Limit Certificate or Monthly Remittance Report or other report prepared by it hereunder, of any Loan Assets Pledged Receivables which were not Eligible Loan Assets Receivables as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (if LEAF Financial or one of its Affiliates) or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant heretoAgreement, which shall have been false, false or incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer (if LEAF Financial or any of its Affiliates) to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction DocumentAgreement, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable law, rule or regulation applicable to it with respect to any Portfolio Pledged Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer (if LEAF Financial or one of its Affiliates) that causes the Collateral Agent, for the benefit of the Secured Parties, Agent not to have a first priority perfected security interest in the Receivables that are, or are purported to be, Pledged Receivables, together with all related Other Conveyed Property, Collections, Related Security and other Pledged Assets related thereto (including without limitation, the Borrower’s interest in and to any and all Obligor Collateral Portfoliowith respect to such Receivables), free and clear of any Lien other than Permitted Liens, Adverse Claim whether existing at the time of the related Advance Borrowing or any time thereafter;
(viv) the commingling by the Servicer (if LEAF Financial or one of its Affiliates) of the Collections required to be remitted to the Collection Account of Pledged Receivables at any time with any other funds;
(viivi) any failure of the Servicer (if LEAF Financial or one of its Affiliates) or any of its agents or representatives (including, without limitation, agents, representatives and employees of such the Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets of Pledged Receivables remitted to the Servicer or any such agent or representative within two Business Days of receiptrepresentative;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ixvii) the failure by the Servicer (if LEAF Financial or any of its Affiliates) to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;; and/or
(xviii) failure or delay in assisting a successor notwithstanding whether any Pledged Receivable shall have been repurchased by the Servicer in assuming each and all of the Servicer’s obligations pursuant to service and administer the Collateral PortfolioSection 6.20, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of this AgreementVI.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Servicer Indemnified Amounts shall be paid by the Servicer (if LEAF Financial or one of its Affiliates) to each related Lender, for the Administrative Agent on behalf benefit of the applicable Indemnified Party Party, within five two (2) Business Days following receipt by the Servicer of the Administrative Agentsuch Lender’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent such Lender shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent such Lender of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent a Lender, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party indemnifying party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 4 contracts
Samples: Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.), Receivables Loan and Security Agreement (LEAF Equipment Leasing Income Fund III, L.P.), Receivables Loan and Security Agreement (LEAF Equipment Leasing Income Fund III, L.P.)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionhereunder:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) except in the case of any Excluded Collections or Excluded Amounts, the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof6.01) to remit to Collection Account, Collections payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(xix) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect theretothereto (solely to the extent the Administrative Agent is permitted to give the related instructions under the terms of the Transaction Documents); orand/or
(xix) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of this AgreementVI.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five two Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(ed) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for Loan Assets which are not collected, not paid or uncollectible on account of the insolvency, bankruptcy or uncollected Loan Assetsfinancial inability to pay of the related Obligor.
(fe) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Bank or the Collateral Custodian and the termination of this Agreement.
(gf) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 Sections 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 4 contracts
Samples: Loan and Servicing Agreement (Business Development Corp of America), Loan and Servicing Agreement (Business Development Corp of America), Loan and Servicing Agreement (Business Development Corp of America)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any acts or omissions of the followingServicer constituting bad faith, excluding, however, willful misconduct or gross negligence in the performance of its duties hereunder and any other Transaction Document to which it is a party; provided that Indemnified Amounts shall not be available to an Indemnified Party to the extent resulting that such Indemnified Amounts are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted solely from the gross negligence, bad faith negligence or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five fifteen (15) Business Days following receipt by the Servicer of the Administrative Agent’s 's written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.022, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(d) The obligations of the Servicer under this Section 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Collateral Agent, the Account Bank or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Borrower, the Account Bank or the Collateral Custodian and the termination of this Agreement.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified AmountsCollateral.
Appears in 4 contracts
Samples: Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.), Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.), Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionhereunder:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral AgentTrustee, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) except as permitted by this Agreement and the Intercreditor Agreement, the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(xix) the failure or delay in assisting a successor by the Servicer in assuming each and all to comply with any of the Servicer’s obligations covenants relating to service and administer the Collateral Portfolio, or failure or delay Hedging Agreement in complying accordance with instructions from the Administrative Agent with respect theretoTransaction Documents; orand/or
(xix) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of or this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 8.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.028.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 8.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the LendersNote Purchaser, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Trustee or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 3 contracts
Samples: Sale and Servicing Agreement (Ares Capital Corp), Sale and Servicing Agreement (Ares Capital Corp), Sale and Servicing Agreement (Ares Capital Corp)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer hereby agrees to indemnify each of the Indemnified Party Parties forthwith on demand, from and against any and all Indemnified Amounts, Amounts awarded against or incurred by any Indemnified Party as a consequence of them arising out of or relating to the Servicer's performance of, or failure to perform, any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith its obligations under or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate Transaction Document, or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (or any of its officers officers) under or in connection with this Agreement or any other Transaction Document, any Servicing Monthly Report, Servicer’s Certificate Weekly Report, computation of Cash Collateral Payment or any other information or report delivered by or on behalf of the Servicer pursuant heretoServicer, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) , as the case may be, or the failure by of the Servicer to comply with (A) any termapplicable law, provision rule or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it regulation with respect to any Portfolio Assets;
Receivable or the related Contract and Invoice. Notwithstanding the foregoing, in no event shall any Indemnified Party be awarded any Indemnified Amounts (iva) any litigation, proceedings to the extent determined by a court of competent jurisdiction to have resulted from gross negligence or investigation against willful misconduct on the Servicer;
part of such Indemnified Party or (vb) any action or inaction by as recourse for Indemnified Amounts to the Servicer that causes extent the Collateral Agent, for the benefit same includes losses in respect of Receivables which are uncollectible on account of the Secured Partiesinsolvency, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear bankruptcy or lack of any Lien other than Permitted Liens, whether existing at the time creditworthiness of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts)Obligor. The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 13.2 (and subject to the exceptions set forth therein) is unavailable to the an Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilitiesharmless, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such lossesloss, claimsclaim, damages damage or liabilities liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 3 contracts
Samples: Credit and Security Agreement (Quest Diagnostics Inc), Credit and Security Agreement (Quest Diagnostics Inc), Credit and Security Agreement (Quest Diagnostics Inc)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionhereunder:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(xix) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; orand/or
(xix) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of or this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five two Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(ed) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(fe) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Bank or the Collateral Custodian and the termination of this Agreement.
(gf) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 3 contracts
Samples: Loan and Servicing Agreement (Fifth Street Finance Corp.), Loan and Servicing Agreement (Fifth Street Finance Corp), Loan and Servicing Agreement (Fifth Street Finance Corp)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting primarily from (a) gross negligence, bad faith negligence or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionor (b) Loan Assets which are uncollectible due to the Obligor’s financial inability to pay:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted LiensLien, whether existing at the time of the related Advance or any time thereafter;
(vi) except as permitted by this Agreement, the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(xix) failure or unreasonable delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or unreasonable delay in complying with instructions from the Administrative Agent with respect thereto; orand/or
(xix) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of or this Agreement.
(b) Any amounts Indemnified Amounts subject to the indemnification provisions of this Section 9.02 8.02 shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.028.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 8.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Bank or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 3 contracts
Samples: Loan and Servicing Agreement (Solar Capital Ltd.), Consent and Omnibus Amendment (Solar Capital Ltd.), Consent and Omnibus Amendment (Solar Senior Capital Ltd.)
Indemnities by Servicer. (a) Without Except for Taxes (other than Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim) and without limiting any other rights which the Affected Parties, the Secured Parties, the Administrative Agent, the Lenders, the Collateral Agent, the Account Bank, the Collateral Custodian or any of their respective Affiliates may have hereunder or under Applicable Law, and without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any acts or omissions of the followingServicer in its capacity as Servicer and related to any Transaction Document, excluding, however, the transactions contemplated hereby or thereby or any certificate or other written material delivered by the Servicer pursuant hereto or thereto; provided that Indemnified Amounts shall not be available to an Indemnified Party to the extent resulting that such Indemnified Amounts are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted solely from the gross negligence, bad faith negligence or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf (or, with respect to any amounts owing to the Collateral Agent, the Collateral Custodian or the Account Bank, to the Collateral Agent), for the benefit of the applicable Indemnified Party Party, within five (5) Business Days following receipt by the Servicer of the Administrative Agent’s (or the Collateral Agent’s, if applicable) written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.028.02, shall submit to the Servicer Borrower a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(ed) The Anything to the contrary notwithstanding, the Servicer shall have no liability for making an indemnification hereunder to the extent that such damages, losses, claims, liabilities and related costs and expenses result from the uncollectibility of any such indemnification constitutes recourse for uncollectible Loan Asset due to the Obligor’s financial inability to pay without breach of any representation, warranty or uncollected Loan Assetscovenant by the Borrower.
(fe) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender AgentsCollateral Agent, the Account Bank or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Borrower, the Account Bank, the Backup Servicer Bank or the Collateral Custodian and the termination of this Agreement.
(gf) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified AmountsCollateral.
Appears in 3 contracts
Samples: Loan and Servicing Agreement (Franklin BSP Capital Corp), Loan and Servicing Agreement (Franklin BSP Capital Corp), Loan and Servicing Agreement (Franklin BSP Capital Corp)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith negligence or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionor Taxes other than Taxes that represent losses, claims, damages or damages arising from any non-Tax claim:
(i) the inclusion, in any computations made by it in connection with any calculation of the Borrowing Base, Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets as Eligible Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Borrowing Base Certificate, calculation of the Borrowing Base, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (Ax) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (By) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to the Collection Account, Collections Account payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; orand/or
(xiix) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party (or to the Administrative Agent, for the benefit of the Collateral Agent or the Lenders), within five ten Business Days following receipt by the Servicer of the Administrative AgentIndemnified Party’s written demand therefor on behalf of the applicable Indemnified Party (and and, if applicable, the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any applicable Indemnified Party making a request for indemnification under this Section 9.02, 8.02 shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(ed) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification results from the performance of the Collateral Portfolio (including, without limitation, any change in the market value of the Collateral Portfolio) or constitutes recourse for uncollectible or uncollected Loan Assets.
(fe) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account BankSecurities Intermediary, the Backup Servicer Collateral Administrator or the Collateral Custodian and the termination of this Agreement.
(gf) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each .
(g) To the extent disclosure thereof is not restricted, each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and 8.01 or Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, 8.02 copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified AmountsAmounts within a reasonable time after such Indemnified Party’s receipt thereof.
(h) Notwithstanding anything to the contrary contained herein, in no event shall the Servicer be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Servicer has been advised of the likelihood of such loss or damage and regardless of the form of action; provided that nothing contained in this sentence limits the Servicer’s indemnity obligations pursuant to Section 8.02(a) to the extent such special, indirect, punitive or consequential damages are included in any third party claim against such Indemnified Party or any other party hereto in connection with which such Indemnified Party is entitled to indemnification hereunder.
(i) Notwithstanding anything herein to the contrary, each Indemnified Party hereby agrees to not seek payment from the Servicer with respect to any indemnification pursuant to this Section 8.02 prior to seeking payment from the Borrower (provided no payment shall need to be sought from the Borrower if the Borrower is insolvent or if the applicable party is stayed from such request under applicable Bankruptcy Laws) with respect to such indemnity; provided that if the Borrower is unable to make such payment on the Payment Date immediately following such written request, any Indemnified Party may then seek payment from the Servicer in accordance with this Section 8.02.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Oaktree Strategic Credit Fund), Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from Excluded Taxes or gross negligence, bad faith or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionhereunder:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets as Eligible Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to the Collection Account, Collections Account payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(xix) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; orand/or
(xix) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of or this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five fifteen Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(ed) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(fe) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Bank or the Collateral Custodian and the termination of this Agreement.
(gf) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.), Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionhereunder:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(xix) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; orand/or
(xix) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 8.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.028.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 8.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a8.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Bank or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Solar Capital Ltd.), Loan and Servicing Agreement (Solar Capital Ltd.)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionhereunder:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets as Eligible Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections Account payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(xix) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; orand/or
(xix) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of or this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five two Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(ed) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(fe) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Bank or the Collateral Custodian and the termination of this Agreement.
(gf) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Golub Capital BDC, Inc.), Loan and Servicing Agreement (Golub Capital BDC, Inc.)
Indemnities by Servicer. (a) Without limiting any other rights which that any Indemnified Party such Person may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party Party, forthwith on demand, from and against any and all Indemnified Amounts, Amounts awarded against or incurred by any such Indemnified Party as a consequence by reason of any acts or omissions of the followingServicer in its capacity as Servicer constituting bad faith, excludingwillful misconduct or gross negligence in the performance of its duties hereunder and which are related to any Transaction Document, however, the transactions contemplated hereby or thereby or any certificate or other written material delivered by the Servicer pursuant hereto or thereto; provided that Indemnified Amounts shall not be available to an Indemnified Party to the extent resulting that such Indemnified Amounts (i) are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted solely from the gross negligence, bad faith or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
or (iii) result from the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, uncollectibility of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted due to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant Obligor’s financial inability to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreementpay.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 8.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five two (2) Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 8.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan AssetsLoans.
(fe) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender AgentsCollateral Agent, the Account Bank or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Borrower, the Account Bank, the Backup Servicer Bank or the Collateral Custodian and the termination of this Agreement.
(gf) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio.
(g) If the Servicer has made any indemnity payments to the Administrative Agent, on behalf of an Indemnified Party pursuant to this Section 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will repay within a reasonable amount of time such amounts collected to the Servicer, without interest. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (FS KKR Capital Corp), Loan and Servicing Agreement (FS Investment Corp II)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer hereby agrees to indemnify each of the Indemnified Party Parties forthwith on demand, from and against any and all Indemnified Amounts, Amounts awarded against or incurred by any Indemnified Party as a consequence of them arising out of or relating to the Servicer’s performance of, or failure to perform, any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith its obligations under or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate Transaction Document, or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (or any of its officers officers) under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate Information Package or any other information or report delivered by or on behalf of the Servicer pursuant heretoServicer, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) , as the case may be, or the failure by of the Servicer to comply with (A) any termapplicable law, provision rule or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it regulation with respect to any Portfolio Assets;
Receivable or the related Contract. Notwithstanding the foregoing, in no event shall any Indemnified Party be awarded any Indemnified Amounts (iva) any litigationto the extent determined by a court of competent jurisdiction to have resulted from gross negligence or willful misconduct on the part of such Indemnified Party, proceedings or investigation against (b) as recourse for Indemnified Amounts to the Servicer;
(v) any action or inaction by extent the Servicer that causes the Collateral Agent, for the benefit same includes losses in respect of Receivables which are uncollectible on account of the Secured Partiesinsolvency, not to have a first priority perfected security interest bankruptcy or lack of creditworthiness of the related Obligor, (c) that represent taxes based upon, or measured by, net income, of changes in the Collateral Portfoliorate of tax or as determined by reference to the overall net income, free and clear of such Indemnified Party, (d) that represent franchise taxes, taxes on, or in the nature of, doing business taxes or capital taxes or (e) that represent withholding taxes required for payments made to any Lien other than Permitted Liensforeign entity which, whether existing at the time such foreign entity issues its Commitment or Liquidity Commitment or becomes an assignee of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required a Lender hereunder, fails to be remitted deliver to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts)Borrower an accurate IRS Form W-8 BEN or W-8 ECI, as applicable. The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 13.2 (and subject to the exceptions set forth therein) is unavailable to the an Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilitiesharmless, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such lossesloss, claimsclaim, damages damage or liabilities liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 2 contracts
Samples: Credit and Security Agreement (Packaging Corp of America), Credit and Security Agreement (Packaging Corp of America)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party that the Purchaser may have hereunder or under Applicable Lawapplicable law, the Servicer hereby agrees to indemnify the Purchaser and each officer, director, employee and agent of the Purchaser (herein individually each called a “Servicer Indemnified Party Party” and collectively called the “Servicer Indemnified Parties”) from and against any and all losses, claims, damages, reasonable expenses (including, without limitation, reasonable attorneys’ fees and disbursements) and liabilities (all of the foregoing being herein called the “Servicer Indemnified Amounts, awarded against or ”) incurred by any a Servicer Indemnified Party as a consequence in connection with the performance by the Servicer pursuant to any Transaction Document of any of the followingits obligations thereunder, excluding, however, in each of the foregoing instances:
(A) Servicer Indemnified Amounts to the extent resulting a final judgment of a court of competent jurisdiction holds that such Servicer Indemnified Amounts resulted solely from the gross negligence, bad faith negligence or willful misconduct on the part of the applicable Servicer Indemnified Party;
(B) Servicer Indemnified Amounts to the 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 the Servicer or limit the recourse of the Purchaser to the Servicer for amounts otherwise specifically provided to be paid by the Servicer under the terms of the Transaction Documents. Without limiting the generality of the foregoing indemnification, the Servicer shall indemnify the Servicer Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionParties for Servicer Indemnified Amounts relating to or resulting from:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (or any officers of its officers the Servicer) under or in connection with this Agreement or Agreement, any other Transaction Document, any Servicing Report, Servicer’s Certificate Document or any other information or report required to be delivered by any such Person pursuant hereto or on behalf of the Servicer pursuant heretothereto, which shall have been false, false or incorrect or misleading in any material respect when made or deemed made or deliveredmade;
(iiiii) the failure by the Servicer to comply with (A) any termapplicable law, provision rule or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it regulation with respect to the servicing of any Portfolio AssetsReceivable or Contract related thereto;
(iii) any failure of the Servicer to perform its duties, covenants or other obligations in accordance with the provisions of any Transaction Document to which it is a party;
(iv) the commingling of Collections of Receivables by the Servicer at any litigation, proceedings or investigation against time with other funds of the Servicer;
(v) any action Amortization Event described in Section 7.1(g) or inaction by (h) with respect to the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafterServicer;
(vi) the commingling any action or omission by the Servicer which reduces or impairs the rights of Collections required the Purchaser with respect to be remitted to any Receivable or the Collection Account with value of any Receivable (other fundsthan at the direction of the Purchaser and except as contemplated by the Transaction Documents);
(vii) any failure of attempt by the Servicer to void any Cash Investment or any of its agents the Security Interest in the Receivables and Related Security granted hereunder, whether under statutory provision, common law or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;equitable action; and
(viii) the Servicer or failure of any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure Receivable included by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all calculation of the Servicer’s obligations Net Pool Balance as an Eligible Receivable to service and administer be an Eligible Receivable at the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreementtime so included.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Sensient Technologies Corp), Receivables Purchase Agreement (Sensient Technologies Corp)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any acts or omissions of the followingServicer in its capacity as Servicer and related to any Transaction Document, excluding, however, the transactions contemplated hereby or thereby or any certificate or other written material delivered by the Servicer pursuant hereto or thereto; provided that Indemnified Amounts shall not be available to an Indemnified Party (i) to the extent resulting that such Indemnified Amounts are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted from the gross negligence, bad faith negligence or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on for any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf amount of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit outstanding principal amount of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized Asset that constitutes recourse for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreementuncollectible amounts.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five ten (10) Business Days following receipt by the Servicer of the Administrative Agent’s 's written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(fd) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender AgentsCollateral Agent, the Account Bank or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Borrower, the Account Bank, the Backup Servicer Bank or the Collateral Custodian and the termination of this Agreement.
(ge) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified AmountsCollateral.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (AG Twin Brook Capital Income Fund), Loan and Servicing Agreement (AGTB Private BDC)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each the Indemnified Party Parties from and against any and all claims, losses and liabilities (including, without limitation, reasonable attorneys’ fees) (all of the foregoing being collectively referred to as “Indemnified Amounts, awarded against ”) arising out of or incurred by any Indemnified Party as a consequence of resulting from any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
: (i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (or any of its officers respective officers) under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of (except with respect to the Servicer pursuant hereto, Purchased Receivables) which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
made; (iiiii) the failure by the Servicer to comply with any applicable law, rule or regulation with respect to any Purchased Receivable; (Aiii) any termfailure by Servicer or Originator to perform its duties or obligations hereunder in accordance with this Agreement or under any other Transaction Document to which it is a party, provision or covenant contained any claim brought by any Person other than an Indemnified Party arising from Servicer’s collection activities; or (iv) except as otherwise expressly provided in this Agreement or in any of the other Transaction DocumentDocuments, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account at any time with other funds;
(vii) any failure funds of the Servicer or any other Person. The foregoing indemnification shall not apply in the case any claims, losses or liabilities to the extent resulting solely from (A) the gross negligence or willful misconduct of its agents the Indemnified Party making a claim hereunder as determined in a final non-appealable judgment by a court of competent jurisdiction, (B) lack of credit worthiness of the related Account Debtor or representatives an Account Debtor Insolvency Event or (including, without limitation, agents, representatives and employees C) (w) enforcement or similar actions of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections Purchaser with respect to Loan Assets remitted a related Purchased Receivable as against the Account Debtor and which (as determined in a final non appealable judgment by a court of competent jurisdiction) are in material violation of applicable law relating to such action, (x) a Dispute or Dilution by the Account Debtor not as a result of anything relating to the Servicer product or any service provided to such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure Debtor by the Servicer Originator, Seller or Servicer, but solely as a result of a separate and distinct transaction or agreement between the Account Debtor and a Purchaser and not in any way related to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
the transactions contemplated hereby (xy) failure or delay in assisting taxes imposed upon a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral PortfolioPurchaser under FATCA, or failure or delay in complying with instructions from the Administrative Agent (z) with respect thereto; or
(xi) to the occurrence of any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IVclause (iii) or (iv) above, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan AssetsPurchased Receivable has been repurchased by the Seller. Amounts due hereunder shall accrue interest at the Delinquent Rate.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Constellium Se), Receivables Purchase Agreement (Constellium N.V.)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionhereunder:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) the reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, any Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any material term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) except as permitted by this Agreement, the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to the Collection Account, Collections payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(ix) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements and/or covenants set forth in Article IV, Article V or Article VI or this Agreement; and/or
(x) the failure or delay in assisting a successor Replacement Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 8.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.028.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 8.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Lender or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 2 contracts
Samples: Omnibus Amendment (Ares Capital Corp), Loan and Servicing Agreement (Ares Capital Corp)
Indemnities by Servicer. (a) Without limiting any other rights which that the Agent, the Managing Agents or any Indemnified Party Purchaser may have hereunder or under Applicable Lawapplicable law, the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party from and against any and all for Indemnified Amounts, Amounts awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts them relating to the extent or resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionfrom:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (or any officers of its officers Servicer) under or in connection with this Agreement or Agreement, any other Transaction Document, any Servicing Report, Servicer’s Certificate Document or any other information or report delivered by or on behalf of the Servicer pursuant heretohereto or thereto, which shall have been false, false or incorrect or misleading in any material respect when made or deemed made made;
(ii) the failure by Servicer to comply with any applicable law, rule or deliveredregulation with respect to any Receivable or Contract related thereto;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such dutiesDocument;
(xiv) failure the commingling of Collections of Receivables at any time with other funds;
(v) any investigation, litigation or delay in assisting a successor proceeding relating to Servicer in assuming each and all which any Indemnified Party becomes involved as a result of any of the Servicer’s obligations to service and administer transactions contemplated hereby;
(vi) any action or omission by the Collateral PortfolioServicer which reduces or impairs the rights of the Agent, the Managing Agents or failure or delay in complying with instructions from the Administrative Agent Purchasers with respect theretoto any Receivable or the value of any such Receivable; or
(xivii) the failure of any Receivable included in the calculation of the events Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included. Notwithstanding the foregoing, Servicer shall not have any liability under this Section 10.2 for:
(a) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or facts giving rise willful misconduct on the part of the Indemnified Party seeking indemnification;
(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 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 breach 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 Servicer or limit the recourse of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI Indemnified Parties to Servicer for amounts otherwise specifically provided to be paid by Servicer under the terms of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of (x) any acts or omissions by the Servicer in breach of its duties hereunder or under any other Transaction Document or (y) any breach by the Servicer of any representation, warranty or covenant of the following, excluding, however, Servicer hereunder or under any other Transaction Document; provided that Indemnified Amounts shall not be available to an Indemnified Party to the extent resulting that such Indemnified Amounts (i) are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted solely from the gross negligence, bad faith or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by resulting from the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf performance of the Servicer pursuant hereto, which Loan Assets (including without limitation any change in the market value of such Loan Asset). This Section 8.02 shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it not apply with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien Taxes other than Permitted Liensany Taxes that represent losses, whether existing at the time of the related Advance or claims and damages arising from any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreementnon-Tax claim.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five (5) Business Days following receipt by the Servicer of the Administrative Agent’s 's written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.|US-DOCS\148390876.14||
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(fd) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Collateral Administrator or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Borrower, the Account Bank, the Collateral Administrator or the Collateral Custodian and the termination of this Agreement.
(ge) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified AmountsCollateral.
Appears in 1 contract
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party forthwith on demand from and against any and all Indemnified Amounts, awarded against or incurred determined in a final, non-appealable judgment by any Indemnified Party as a consequence court of any competent jurisdiction to have resulted from the actions of the followingServicer in performing its duties under the Transaction Documents strictly as Servicer thereunder constituting fraud, bad faith or willful misconduct (any such action, a “Servicer Breach”), excluding, however, Indemnified Amounts payable to an Indemnified Party (i) determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted from the extent resulting from gross negligence, bad faith negligence or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusionor its agent or subcontractor, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by resulting from the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf performance of the Loan Assets (including without limitation any change in the market value of such Loan Asset) unless such performance has resulted in a loss and was caused by a Servicer pursuant heretoBreach, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained loss in this Agreement or value of any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
Permitted Investment and (iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, Taxes (other than Taxes that represent losses or damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as arising from a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerationsnon-Tax claim); provided that the Servicer shall not be required have any liability hereunder to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts Party to the Administrative Agent on behalf of extent an Indemnified Party pursuant effects any settlement of a matter that is (or could be) subject to this Section 9.02 and indemnification hereunder without the prior written consent of the Servicer (which consent shall not be unreasonably withheld or delayed), but if settled with such consent or if there be a final judgment for the plaintiff, the Servicer agrees to indemnify the Indemnified Party thereafter collects from and against any loss or liability by reason of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder settlement or judgment to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of set forth in this Section 8.02. In no case shall the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such responsible for any Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amountslost revenues or lost profits.
Appears in 1 contract
Samples: Loan and Servicing Agreement (HPS Corporate Lending Fund)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer (if BRT or one of its Affiliates) hereby agrees to indemnify each Indemnified Party from and against any and all damages, losses, claims, liabilities and related costs and expenses (including reasonable attorneys’ fees and disbursements) (all of the foregoing being collectively referred to as “Servicer Indemnified Amounts, awarded against ”) suffered or incurred sustained by any Indemnified Party as a consequence of any of the following, excluding, however, Servicer Indemnified Amounts to the extent resulting solely from any gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionhereunder:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate Monthly Remittance Report or Daily Remittance Report or other report prepared by it hereunder, of any Loan Assets Pledged Receivables which were not Eligible Loan Assets Receivables as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant heretoAgreement, which shall have been false, false or incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction DocumentAgreement, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable law, rule or regulation applicable to it with respect to any Portfolio Pledged Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer (if BRT or one of its Affiliates) that causes the Collateral Agent, for the benefit of the Secured PartiesLenders, not to have a first priority perfected security interest (subject only to Permitted Liens) in the Receivables that are, or are purported to be, Pledged Receivables, together with all related Other Conveyed Property, Collections, Related Security and other Pledged Assets related thereto (including without limitation, Borrower’s interest in and to any and all Underlying Collateral Portfoliowith respect to such Receivables), free and clear of any Lien other than Permitted Liens, Adverse Claim whether existing at the time of the related Advance Borrowing or any time thereafter;
(viv) the commingling by Servicer (if BRT or one of its Affiliates) of the Servicer Collections of Collections required to be remitted to the Collection Account Pledged Receivables at any time with any other funds;
(viivi) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection the Operating Account, Collections with respect to Loan Assets of Pledged Receivables remitted to the Servicer or any such agent or representative within two Business Days of receiptrepresentative;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ixvii) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xiviii) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of this Agreement.VI; and/or
(bix) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent any environmental claims arising in connection with any activity on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable errormortgaged property constituting Underlying Collateral.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionor Taxes other than Taxes that represent losses, claims, damages or damages arising from any non-Tax claim:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets as Eligible Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision its duties or covenant contained obligations in accordance with this Agreement or any other Transaction Document, or any other agreement executed in connection with this AgreementAgreement or errors or omissions related to such duties that result in a breach of such duties under any Transaction Document, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien (other than Permitted Liens), whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to the Collection Account, Collections Account payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receiptreceipt and identification as collections on the Collateral Portfolio;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;[Reserved].
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; orand/or
(xix) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five fifteen (15) Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.028.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party Party, pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(ed) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(fe) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Bank or the Collateral Custodian and the termination of this Agreement.
(gf) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each .
(g) To the extent disclosure thereof is not restricted, each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, 8.01 copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified AmountsAmounts within a reasonable time after such Indemnified Party’s receipt thereof.
(h) Notwithstanding anything to the contrary contained herein, in no event shall the Servicer be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Servicer has been advised of the likelihood of such loss or damage and regardless of the form of action.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Onex Direct Lending BDC Fund)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence arising out of or in connection with any (i) acts or omissions of the followingServicer constituting bad faith, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith negligence or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it Servicer in connection with this Agreement, any Borrowing Base Certificate other Transaction Document or other report prepared by it hereunderany transaction contemplated hereby or thereby, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on breach of any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered Document by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document; provided that Indemnified Amounts shall not be available to an Indemnified Party to the extent that such Indemnified Amounts (x) are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted solely from the gross negligence or willful misconduct on the part of such Indemnified Party claiming indemnification hereunder, (y) resulting from the performance of the Loan Assets (including without limitation any change in the market value of such Loan Asset) unless such loss resulting from the performance of such Loan Asset is due to the action or any other agreement executed inaction of the Servicer arising in connection with any of the items described in sub-clauses (i), (ii) or (iii) above of this Agreementclause (a), or (Bz) to the extent that any Applicable Law applicable to it such Indemnified Amounts result from a claim solely between or among Lenders and not arising out of any act or omission on the part of the Servicer. In no case shall the Servicer be responsible for any Indemnified Party’s lost revenues or lost profits. This Section 8.02 shall not apply with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien Taxes other than Permitted Liensany Taxes that represent losses, whether existing at the time of the related Advance or claims, damages, etc. arising from any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreementnon-Tax claim.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five two (2) Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(fd) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender AgentsCollateral Agent, the Account Bank or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Borrower, the Account Bank, the Backup Servicer Bank or the Collateral Custodian and the termination of this Agreement.
(ge) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified AmountsCollateral.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Apollo Debt Solutions BDC)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer hereby agrees to indemnify and defend each Indemnified Party from and against any and all damages, losses, claims, liabilities and related costs and expenses (including reasonable attorneys’ fees and disbursements) (all of the foregoing being collectively referred to as “Servicer Indemnified Amounts, awarded against ”) suffered or incurred sustained by any Indemnified Party as a consequence of any of the following, excluding, however, Servicer Indemnified Amounts to the extent (A) resulting solely from any gross negligence, bad faith or willful misconduct on of the part of any applicable Indemnified Party claiming indemnification hereunder hereunder, (B) resulting from any income or franchise taxes incurred by such Indemnified Party arising out of or as determined in a final decision by a court result of competent jurisdictionthis Agreement or (C) to the extent that providing such indemnity would constitute recourse for losses due to the uncollectibility of any Pledged Receivables due to the insolvency, bankruptcy or financial inability or refusal to pay of the related Obligor arising or occurring at any time after the date of its Conveyance under (and as defined in) the Purchase and Contribution Agreement:
(i) the inclusion, in any computations made by it the Servicer in connection with any Borrowing Base Certificate or Monthly Remittance Report or other report prepared by it hereunder, of any Loan Assets Pledged Receivables which were not Eligible Loan Assets Receivables as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant heretoDocument to which it is a party, which shall have been false, false or incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) any investigation, litigation or claim arising out of, or resulting from, the Servicer’s failure to observe the terms and covenants of this Agreement or any other Transaction Document to which it is a party;
(iv) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction DocumentDocument to which it is a party, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable law, rule or regulation applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the ServicerCollateral;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Receivables which are, or are purported to be, Pledged Receivables, together with all Borrower’s interest in Collateral Portfolio, related thereto free and clear of any Lien other than Permitted Liens, Adverse Claim whether existing at the time of the related Advance Borrowing or any time thereafter;
(vi) the commingling by the Servicer of the Collections required to be remitted to the Collection Account of Pledged Receivables at any time with any other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such the Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Account Collections with respect to Loan Assets of Pledged Receivables remitted to the Servicer or any such agent or representative within two Business Days of receiptrepresentative;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(ix) the payment by the Agent, any Lender or the Backup Servicer of taxes, including, without limitation, any taxes imposed by any jurisdiction on amounts payable and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto to the extent caused by the Servicer’s actions or failure to act;
(x) failure any action taken by the Servicer (or delay in assisting a successor Servicer in assuming each and all any assignee or designee of the Servicer’s obligations ) in the enforcement or collection of any Contract related to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; ora Pledged Receivable;
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI VI; and/or
(xii) any environmental claims arising in connection with any activity on mortgaged property constituting Equipment. provided no successor Servicer (which is not Xxxxxx or an Affiliate of this AgreementXxxxxx) shall have any liability under clause (xii) above or for Adverse Claims with respect to the Collateral for which such successor Servicer does not have knowledge.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 The Servicer Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five two Business Days following receipt by the Servicer of the Administrative Agentsuch Person’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts)therefor. The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, 8.02 shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations . Except as otherwise provided herein, none of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account BankServicer, the Backup Servicer or the Collateral Custodian Agent shall be under any obligation to appear in, prosecute or defend any legal action related to this Agreement unless such action is related to its respective duties under this Agreement; provided that, except as otherwise provided herein, any of the Servicer, the Backup Servicer or the Agent may in its discretion undertake any such action which it may deem necessary or desirable in connection with any legal action with respect to this Agreement and the termination rights and duties of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolioparties hereto. Each applicable Indemnified Party shall deliver to the Indemnifying Party indemnifying party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Marlin Business Services Corp)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any acts or omissions of the following, excluding, however, Servicer arising out of a breach of its obligations and duties under this Agreement or any other Transaction Document to which it is a party; provided that Indemnified Amounts shall not be available to an Indemnified Party to the extent resulting that such Indemnified Amounts are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted from the gross negligence, bad faith faith, fraud or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder hereunder; provided, further, that, notwithstanding the foregoing or anything else in this Agreement to the contrary, the Servicer hereby further agrees to indemnify the Administrative Agent from any indemnification expenses the Administrative Agent may incur USActive 55323723.3 under any rating agency engagement letter executed by the Administrative Agent as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, result of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made written information furnished by the Servicer Borrower or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision such rating agency or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any expressly for the purpose of the events or facts giving rise Administrative Agent furnishing such information to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreementsuch rating agency.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five two (2) Business Days following receipt by the Servicer of the Administrative Agent’s 's written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(d) The obligations of the Servicer under this Section 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Collateral Agent, the Account Bank or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Borrower, the Account Bank or the Collateral Custodian and the termination of this Agreement.
(e) Any indemnification pursuant to this Section 8.02 shall not be payable from the Collateral.
(f) Notwithstanding anything herein to the contrary, each Indemnified Party hereby agrees to not seek payment from the Servicer with respect to any indemnification pursuant to this Section 8.02 prior to seeking payment from the Borrower (provided no payment shall need to be sought from the Borrower if the Borrower is insolvent or if the applicable party is stayed from such request under applicable Bankruptcy Laws) with respect to such indemnity; provided that if the Borrower is unable to make such payment, any Indemnified Party may then seek payment from the Servicer in accordance with this Section 8.02.
(g) Notwithstanding anything to the contrary contained herein, in no event shall the Servicer be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Servicer has been advised of the likelihood of such loss or damage and regardless of the form of action.
(h) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.USActive 55323723.3
Appears in 1 contract
Samples: Loan and Servicing Agreement (BlackRock TCP Capital Corp.)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer hereby agrees to indemnify each of the Indemnified Party Parties forthwith on demand, from and against any and all Indemnified AmountsAmounts (including, without limitation, losses arising from a loss of coverage under the Insurance Policy) awarded against or incurred by any Indemnified Party as a consequence of them arising out of or relating to the Servicer's performance of, or failure to perform, any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith its obligations under or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate Transaction Document (including, without limitation, the Insurance Policy), or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (or any of its officers officers) under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate Document or any other information or report delivered by or on behalf of the Servicer pursuant heretoServicer, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) , as the case may be, or the failure by of the Servicer to comply with (A) any termapplicable law, provision rule or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it regulation with respect to any Portfolio Assets;
Pool Receivable or the related Contract. Notwithstanding the foregoing, in no event shall any Indemnified Party be awarded any Indemnified Amounts (iva) any litigation, proceedings or investigation against to the Servicer;
(v) any action or inaction extent determined by the Servicer that causes the Collateral Agent, for the benefit a court of the Secured Parties, not competent jurisdiction to have a first priority perfected security interest in resulted from gross negligence or willful misconduct on the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees part of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer Indemnified Party or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject recourse for (except as otherwise specifically provided in this Agreement) to Servicer for non-payment of the Pool Receivables due to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf credit problems of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts)Obligors thereof. The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 13.02 (and subject to the exceptions set forth therein) is unavailable to the an Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilitiesharmless, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such lossesloss, claimsclaim, damages damage or liabilities liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Asset Interest Transfer Agreement (Westpoint Stevens Inc)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionhereunder:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral AgentTrustee, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;; and/or
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xiix) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of or this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(ed) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(fe) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the LendersNote Purchaser, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Trustee or the Collateral Custodian and the termination of this Agreement.
(gf) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer (if LEAF Financial or one of its Affiliates) hereby agrees to indemnify and defend each Indemnified Party from and against any and all damages, losses, claims, liabilities and related costs and expenses (including reasonable attorneys’ fees and disbursements) (all of the foregoing being collectively referred to as “Servicer Indemnified Amounts, awarded against ”) suffered or incurred sustained by any Indemnified Party as a consequence of any of the following, excluding, however, (A) with respect to each of Lyon (in its capacity as the Backup Servicer or as a successor Servicer), the Custodian, the Agent’s Bank and its Affiliates, Servicer Indemnified Amounts resulting solely from any negligence, bad faith or willful misconduct of such Indemnified Party or (B) excluding, with respect to the extent any other Indemnified Party, Servicer Indemnified Amounts resulting solely from any gross negligence, bad faith or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder hereunder, or (C) resulting from any income or franchise taxes incurred by any Indemnified Party arising out of or as determined in a final decision by a court result of competent jurisdictionthis Agreement or (D) to the extent that providing such indemnity would constitute recourse for losses due to the uncollectability of any Pledged Receivables due to the insolvency, bankruptcy or financial inability or refusal to pay of the related Obligor arising or occurring at any time after the date of its Conveyance under (and as defined in) the Purchase and Contribution Agreement:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate Certificate, Monthly Remittance Report or Commercial Paper Remittance Report or other report prepared by it hereunder, of any Loan Assets Pledged Receivables which were not Eligible Loan Assets Receivables as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (if LEAF Financial or one of its Affiliates) or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant heretoAgreement, which shall have been false, false or incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction DocumentAgreement, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable law, rule or regulation applicable to it with respect to any Portfolio Pledged Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by failure to vest and maintain vested in the Servicer that causes the Collateral Agent, for the benefit of the Secured PartiesLender, not or to have transfer to the Agent, for the benefit of the Lender, (A) a first priority perfected security interest in: the First Priority Assets which are, or are purported to be, Pledged Receivables and the Pledged Assets related thereto and (B) a perfected security interest in the Collateral Portfolioother Pledged Receivables, Related Security and Other Conveyed Property and the Equipment related to such Pledged Receivables (except to the extent that UCC financing statements are not required to have been filed against the related Obligor for any Equipment related to any Contract that had an original equipment cost at origination of less than $50,000, or if such Contract provides for a “nominal value” purchase option, of less than $25,000), in each case, free and clear of any Lien other than Permitted Liens, Adverse Claim whether existing at the time of the related Advance Borrowing or any time thereafter;
(v) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Loans or the Pledged Assets;
(vi) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with goods, merchandise and/or services which are the commingling by the Servicer subject of Collections required to be remitted any Contract related to the Collection Account with other fundsPledged Receivables;
(vii) the commingling of the Collections of Pledged Receivables and other Pledged Assets at any time with any other funds (other than as expressly contemplated by the Master DDA Intercreditor Agreement) of the Servicer or any of its Affiliates;
(viii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such the Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to the Collection Account, Collections with respect to Loan Assets of Pledged Receivables remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunderrepresentative;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure any repayment by the Agent or delay the Lender of any amount previously distributed in assisting a successor Servicer payment of Loans or payment of Yield or Fees or any other amount due hereunder, in assuming each and all of case, which amount the Servicer’s obligations Agent or the Lender believes in good faith is required to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; orbe repaid;
(xi) the payment by such Indemnified Party of taxes (except for “Taxes” (as such term is defined in Section 2.18(a) hereof)), including, without limitation, any taxes imposed by any jurisdiction on amounts payable and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto to the extent caused by the Servicer or the Borrower’s actions or failure to act;
(xii) any failure on the part of the Borrower duly to observe or perform in any material respect any covenant or agreement under any Qualifying Interest Rate Hedge;
(xiii) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of this AgreementVI; and/or
(xiv) any environmental claims arising in connection with any activity on mortgaged property constituting Equipment.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Servicer Indemnified Amounts shall be paid by the Servicer (if LEAF Financial or one of its Affiliates) to the Administrative Agent on behalf of the applicable Indemnified Party Party, within five two (2) Business Days following receipt by the Servicer of the Administrative Agentsuch Person’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts)therefor. The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.028.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party indemnifying party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts. The liability of LEAF Financial under the Transaction Documents shall be several and not joint to any other LEAF Party.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (LEAF Equipment Leasing Income Fund III, L.P.)
Indemnities by Servicer. (a) Without Except for Taxes (other than Taxes that represent losses, claims, damages, etc. arising from any non-tax claim) which shall not be covered by this Section 8.02 and without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the followingfollowing acts or omissions by the Servicer in connection with its obligations or duties under this Agreement, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionParty:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers Responsible Officers under or in connection with this Agreement or any other Transaction Document, any Servicing Monthly Report, Servicer’s Servicer Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iiiii) the failure by the Servicer to comply with (A) any term, provision or covenant applicable to it contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;; and/or
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ixiii) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject Indemnified Amounts owing to the indemnification provisions of this Section 9.02 Facility Agent or the Lenders shall be paid by the Servicer to the Administrative Agent on behalf Facility Agent, for the benefit of the such applicable Indemnified Party Party, within five ten (10) Business Days following receipt by the Servicer of the Administrative Facility Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Facility Agent shall pay such amounts to the applicable -139- Indemnified Party promptly after the receipt by the Administrative Facility Agent of such amounts). The Administrative Facility Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.028.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable manifest error. Any Indemnified Amounts owing to the Collateral Agent, the Account Bank or the Collateral Custodian shall be paid by the Servicer to the Collateral Agent within ten (10) Business Days following receipt by the Borrower of the Collateral Agent’s written demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Facility Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(ed) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification results from the performance of the Collateral Portfolio (including, without limitation, any change in the market value of the Collateral Portfolio), or constitutes recourse for uncollectible or uncollected Loan AssetsLoans.
(fe) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Facility Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Bank or the Collateral Custodian and the termination of this Agreement.
(gf) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Loan and Security Agreement (North Haven Private Income Fund LLC)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer hereby agrees to indemnify each of the Indemnified Party Parties forthwith on demand, from and against any and all Indemnified Amounts, Amounts awarded against or incurred by any Indemnified Party as a consequence of any them arising out of the following, excluding, however, Indemnified Amounts or relating to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusionServicer's performance of, in or failure to perform, any computations made by it of its obligations under or in connection with any Borrowing Base Certificate or other report prepared by it hereunderTransaction Document, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (or any of its officers officers) under or in connection with this Agreement or any other Transaction Document, any Servicing Monthly Report, Servicer’s Certificate Weekly Report, computation of Cash Collateral Payment or any other information or report delivered by or on behalf of the Servicer pursuant heretoServicer, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
, as the case may be, (iii) the failure by of the Servicer to comply with (A) any termapplicable law, provision rule or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it regulation with respect to any Portfolio Assets;
Receivable or the related Contract and Invoice or (iv) any litigation, proceedings or investigation against the Servicer;
(v) commingling of any action or inaction funds by the Servicer relating to the Receivables with any of its funds or the funds of any other Person. Notwithstanding the foregoing, in no event shall any Indemnified Party be indemnified from and against any and all (i) Indemnified Amounts to the extent determined by a court of competent jurisdiction to have resulted from gross negligence or willful misconduct on the part of such Indemnified Party, (ii) 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; and or (iii) recourse (except as otherwise specifically provided in this Agreement) for Indemnified Amounts to the extent the same includes losses in respect of Receivables that causes were Eligible Receivables on the Collateral Agent, for date such Receivables were purchased by the benefit Borrower which are uncollectible on account of the Secured Partiesinsolvency, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear bankruptcy or lack of any Lien other than Permitted Liens, whether existing at the time creditworthiness of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this AgreementObligor.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 10.2 (and subject to the exceptions set forth therein) is unavailable to the an Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilitiesharmless, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such lossesloss, claimsclaim, damages damage or liabilities liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Credit and Security Agreement (Boston Scientific Corp)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer (if FCC or one of its Affiliates) hereby agrees to indemnify each Indemnified Party from and against any and all damages, losses, claims, liabilities and related costs and expenses (including reasonable attorneys' fees and disbursements) (all of the foregoing being collectively referred to as "Servicer Indemnified Amounts, awarded against ") suffered or incurred sustained by any Indemnified Party as a consequence of any of the following, excluding, however, Servicer Indemnified Amounts to the extent resulting solely from any gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionhereunder:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate Certificate, Monthly Remittance Report or Commercial Paper Remittance Report or other report prepared by it hereunder, of any Loan Assets Pledged Receivables which were not Eligible Loan Assets Receivables as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (if FCC or one of its Affiliates) or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant heretoAgreement, which shall have been false, false or incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer (if FCC or any of its Affiliates) to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction DocumentAgreement, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable law, rule or regulation applicable to it with respect to any Portfolio Pledged Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer (if FCC or one of its Affiliates) that causes the Collateral Agent, for the benefit of the Secured PartiesLender, not to have a first priority perfected security interest in the Receivables that are, or are purported to be, Pledged Receivables, together with all related Other Conveyed Property, Collections, Related Security and other Pledged Assets related thereto (including without limitation, the Borrower's interest in and to any and all Underlying Collateral Portfoliowith respect to such Receivables), free and clear of any Lien other than Permitted Liens, Adverse Claim whether existing at the time of the related Advance Borrowing or any time thereafter;
(viv) the commingling by the Servicer (if FCC or one of its Affiliates) of the Collections required to be remitted to the Collection Account of Pledged Receivables at any time with any other funds;
(viivi) any failure of the Servicer (if FCC or one of its Affiliates) or any of its agents or representatives (including, without limitation, agents, representatives and employees of such the Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets of Pledged Receivables remitted to the Servicer or any such agent or representative within two Business Days of receiptrepresentative;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ixvii) the failure by the Servicer (if FCC or any of its Affiliates) to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(xviii) failure or delay in assisting a successor notwithstanding whether any Pledged Receivable shall have been repurchased by the Servicer in assuming each and all of the Servicer’s obligations pursuant to service and administer the Collateral PortfolioSection 6.22, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s 's representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of this AgreementVI; and/or
(ix) any environmental claims arising in connection with any activity on Mortgaged Property constituting Underlying Collateral.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Servicer Indemnified Amounts shall be paid by the Servicer (if FCC or one of its Affiliates) to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five two (2) Business Days following receipt by the Servicer of the Administrative Agent’s 's written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.028.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent manifest or demonstrable error. Any Servicer Indemnified Amounts made by the Servicer to any Indemnified Party shall be reimbursed to the Servicer by such Indemnified Party if a court of competent jurisdiction makes a final, non-appealable judgement which determines that such Servicer Indemnified Amounts suffered or sustained by such Indemnified Party resulted solely from the gross negligence, bad faith or willful misconduct of such Indemnified Party.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party indemnifying party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s 's receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Us Home Systems Inc /Tx)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account, the URCA Account or the YRA Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Solar Senior Capital Ltd.)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of (x) any acts or omissions by the Servicer in breach of its duties hereunder or under any other Transaction Document or (y) any breach by the Servicer of any representation, warranty or covenant of the following, excluding, however, Servicer hereunder or under any other Transaction Document; provided that Indemnified Amounts shall not be available to an Indemnified Party to the extent resulting that such Indemnified Amounts (i) are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted solely from the gross negligence, bad faith or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by resulting from the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf performance of the Servicer pursuant hereto, which Loan Assets (including without limitation any change in the market value of such Loan Asset). This Section 8.02 shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it not apply with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien Taxes other than Permitted Liensany Taxes that represent losses, whether existing at the time of the related Advance or claims and damages arising from any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreementnon-Tax claim.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five (5) Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(fd) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Collateral Administrator or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Borrower, the Account Bank, the Collateral Administrator or the Collateral Custodian and the termination of this Agreement.
(ge) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified AmountsCollateral.
Appears in 1 contract
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any acts or omissions of the followingServicer constituting bad faith, excluding, however, willful misconduct or gross negligence in the performance of its duties hereunder and any other Transaction Document to which it is a party; provided that Indemnified Amounts shall not be available to an Indemnified Party to the extent resulting that such Indemnified Amounts are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted solely from the gross negligence, bad faith negligence or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five fifteen (15) Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.022, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(d) The obligations of the Servicer under this Section 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Collateral Agent, the Account Bank or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Borrower, the Account Bank or the Collateral Custodian and the termination of this Agreement.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified AmountsCollateral.
Appears in 1 contract
Samples: Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionhereunder:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two one Business Days Day of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(ix) the failure by the Servicer to comply with any of the covenants relating to the Hedging Agreement in accordance with the Transaction Documents;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; orand/or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of or this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five two Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(ed) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(fe) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Bank or the Collateral Custodian and the termination of this Agreement.
(gf) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Fifth Street Finance Corp)
Indemnities by Servicer. (a) Without Except for Taxes (other than Taxes that represent losses, claims, damages, etc. arising from any non-tax claim) which shall not be covered by this Section 8.02 and without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the followingfollowing acts or omissions by the Servicer in connection with its obligations or duties under this Agreement, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionParty:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers Responsible Officers under or in connection with this Agreement or any other Transaction Document, any Servicing Monthly Report, Servicer’s Servicer Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iiiii) the failure by the Servicer to comply with (A) any term, provision or covenant applicable to it contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;; and/or
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ixiii) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject Indemnified Amounts owing to the indemnification provisions of this Section 9.02 Facility Agent or the Lenders shall be paid by the Servicer to the Administrative Agent on behalf Facility Agent, for the benefit of the such applicable Indemnified Party Party, within five ten (10) Business Days following receipt by the Servicer of the Administrative Facility Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Facility Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Facility Agent of such amounts). The Administrative Facility Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.028.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable manifest error. Any Indemnified Amounts owing to the Collateral Agent, the Account Bank or the Collateral Custodian shall be paid by the Servicer to the Collateral Agent within ten (10) Business Days following receipt by the Borrower of the Collateral Agent’s written demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Facility Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(ed) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification results from the performance of the Collateral Portfolio (including, without limitation, any change in the market value of the Collateral Portfolio), or constitutes recourse for uncollectible or uncollected Loan AssetsLoans.
(fe) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Facility Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Bank or the Collateral Custodian and the termination of this Agreement.
(gf) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Loan and Security Agreement (North Haven Private Income Fund LLC)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer hereby agrees to indemnify each of the Indemnified Party Parties forthwith on demand, from and against any and all Indemnified Amounts, Amounts awarded against or incurred by any Indemnified Party as a consequence of any them arising out of the following, excluding, however, Indemnified Amounts or relating to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusionServicer’s performance of, in or failure to perform, any computations made by it of its obligations under or in connection with any Borrowing Base Certificate or other report prepared by it hereunderTransaction Document, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (or any of its officers officers) under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate Monthly Report or any other information or report delivered by or on behalf of the Servicer pursuant heretoServicer, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
, as the case may be, (iii) the failure by of the Servicer to comply with (A) any termapplicable law, provision rule or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it regulation with respect to any Portfolio Assets;
Receivable or the related Contract and Invoice or (iv) any litigation, proceedings or investigation against the Servicer;
(v) commingling of any action or inaction funds by the Servicer relating to the Receivables with any of its funds or the funds of any other Person. Notwithstanding the foregoing, in no event shall any Indemnified Party be indemnified from and against any and all (i) Indemnified Amounts to the extent determined by a court of competent jurisdiction to have resulted from gross negligence or willful misconduct on the part of such Indemnified Party, (ii) Excluded Taxes; and or (iii) recourse (except as otherwise specifically provided in this Agreement) for Indemnified Amounts to the extent the same includes losses in respect of Receivables that causes were Eligible Receivables on the Collateral Agent, for date such Receivables were purchased by the benefit Borrower which are uncollectible on account of the Secured Partiesinsolvency, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear bankruptcy or lack of any Lien other than Permitted Liens, whether existing at the time creditworthiness of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives Obligor. Second Amended and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives Restated Credit and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Security Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 10.2 (and subject to the exceptions set forth therein) is unavailable to the an Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilitiesharmless, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such lossesloss, claimsclaim, damages damage or liabilities liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Credit and Security Agreement (Boston Scientific Corp)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionhereunder:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or L/C Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two one Business Days Day of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(ix) the failure by the Servicer to comply with any of the covenants relating to the Hedging Agreement in accordance with the Transaction Documents;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; orand/or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of or this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five two Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(ed) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(fe) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Bank or the Collateral Custodian and the termination of this Agreement.
(gf) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Fifth Street Finance Corp)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:hereunder: USActive 52762757.1552762757.22 131
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral AgentTrustee, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) except as permitted by this Agreement, the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(xix) the failure or delay in assisting a successor by the Servicer in assuming each and all to comply with any of the Servicer’s obligations covenants relating to service and administer the Collateral Portfolio, or failure or delay Hedging Agreement in complying accordance with instructions from the Administrative Agent with respect theretoTransaction Documents; orand/or
(xix) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of or this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 8.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.028.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.. USActive 52762757.1552762757.22 132
(c) If for any reason the indemnification provided above in this Section 9.02 8.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Trustee or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any acts or omissions of the followingServicer in its capacity as Servicer and related to any Transaction Document, excluding, however, the transactions contemplated hereby or thereby or any certificate or other written material delivered by the Servicer pursuant hereto or thereto; provided that Indemnified Amounts shall not be available to an Indemnified Party to the extent resulting that such Indemnified Amounts are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted from the gross negligence, bad faith faith, fraud or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five thirteen (13) Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(d) The obligations of the Servicer under this Section 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Collateral Agent, the Account Bank or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Borrower, the Account Bank or the Collateral Custodian and the termination of this Agreement.
(e) Any indemnification pursuant to this Section 8.02 shall not be payable from the Collateral.
(f) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Loan and Servicing Agreement (First Eagle Private Credit Fund)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any acts or omissions of the followingServicer in its capacity as Servicer and related to any Transaction Document, excluding, however, the transactions contemplated hereby or thereby or any certificate or other written material delivered by the Servicer pursuant hereto or thereto; provided that Indemnified Amounts shall not be available to an Indemnified Party to the extent resulting that such Indemnified Amounts are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted solely from the gross negligence, bad faith negligence or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five two (2) Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(fd) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender AgentsCollateral Agent, the Account Bank or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Borrower, the Account Bank, the Backup Servicer Bank or the Collateral Custodian and the termination of this Agreement.
(ge) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified AmountsCollateral.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Owl Rock Capital Corp)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer hereby agrees to indemnify each of the Indemnified Party Parties forthwith on demand, from and against any and all Indemnified Amounts, Amounts awarded against or incurred by any Indemnified Party as a consequence of them arising out of or relating to the Servicer's performance of, or failure to perform, any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith its obligations under or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate Transaction Document, or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (or any of its officers officers) under or in connection with this Agreement or any other Transaction Document, any Servicing Monthly Report, Servicer’s Certificate Weekly Report, computation of Cash Collateral Payment or any other information or report delivered by or on behalf of the Servicer pursuant heretoServicer, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) , as the case may be, or the failure by of the Servicer to comply with (A) any termapplicable law, provision rule or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it regulation with respect to any Portfolio Assets;
Receivable or the related Contract and Invoice. Notwithstanding the foregoing, in no event shall any Indemnified Party be awarded any Indemnified Amounts (iva) any litigation, proceedings to the extent determined by a court of competent jurisdiction to have resulted from gross negligence or investigation against willful misconduct on the Servicer;
part of such Indemnified Party or (vb) any action or inaction by as recourse for Indemnified Amounts to the Servicer that causes extent the Collateral Agent, for the benefit same includes losses in respect of Receivables which are uncollectible on account of the Secured Partiesinsolvency, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear bankruptcy or lack of any Lien other than Permitted Liens, whether existing at the time creditworthiness of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts)Obligor. The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 13.2 (and subject to the exceptions set forth therein) is unavailable to the an Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilitiesharmless, then the Servicer shall contribute to the amount paid or 55 payable by such Indemnified Party as a result of such lossesloss, claimsclaim, damages damage or liabilities liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Credit and Security Agreement (Quest Diagnostics Inc)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith negligence or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionor Taxes other than Taxes that represent losses, claims, damages or damages arising from any non-Tax claim:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets as Eligible Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) [Reserved];
(vi) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vivii) the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;
(viiviii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to the Collection Account, Collections AmericasActive:18709990.5 Account payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties[Reserved];
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; orand/or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party (or to the Administrative Agent, for the benefit of the Collateral Agent or the Lenders), within five Business Days following receipt by the Servicer of the Administrative AgentIndemnified Party’s written demand therefor on behalf of the applicable Indemnified Party (and and, if applicable, the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any applicable Indemnified Party making a request for indemnification under this Section 9.02, 8.02 shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(ed) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(fe) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Collateral Administrator or the Collateral Custodian and the termination of this Agreement.
(gf) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each .
(g) To the extent disclosure thereof is not restricted, each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and 8.01 or Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, 8.02 copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified AmountsAmounts within a reasonable time after such Indemnified Party’s receipt thereof. AmericasActive:18709990.5
(h) Notwithstanding anything to the contrary contained herein, in no event shall the Servicer be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but no limited to lost profits), even if the Servicer has been advised of the likelihood of such loss or damage and regardless of the form of action; provided that nothing contained in this sentence limits the Servicer’s indemnity obligations pursuant to Section 8.02(a) to the extent such special, indirect, punitive or consequential damages are included in any third party claim against such Indemnified Party in connection with which such Indemnified Party is entitled to indemnification hereunder
(i) Notwithstanding anything herein to the contrary, each Indemnified Party hereby agrees to not seek payment from the Servicer with respect to any indemnification pursuant to this Section 8.02 prior to seeking payment from the Borrower (provided no payment shall need to be sought from the Borrower if the Borrower is insolvent or if the applicable party is stayed from such request under applicable Bankruptcy Laws) with respect to such indemnity; provided that if the Borrower is unable to make such payment on the Payment Date immediately following such written request, any Indemnified Party may then seek payment from the Servicer in accordance with this Section 8.02.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith negligence or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionor Taxes other than Taxes that represent losses, claims, damages or damages arising from any non-Tax claim:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets as Eligible Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) [Reserved];
(vi) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vivii) the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;
(viiviii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to the Collection Account, Collections Account payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties[Reserved];
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; orand/or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party (or to the Administrative Agent, for the benefit of the Collateral Agent or the Lenders), within five Business Days following receipt by the Servicer of the Administrative AgentIndemnified Party’s written demand therefor on behalf of the applicable Indemnified Party (and and, if applicable, the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any applicable Indemnified Party making a request for indemnification under this Section 9.02, 8.02 shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(ed) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(fe) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Collateral Administrator or the Collateral Custodian and the termination of this Agreement.
(gf) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each .
(g) To the extent disclosure thereof is not restricted, each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and 8.01 or Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, 8.02 copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified AmountsAmounts within a reasonable time after such Indemnified Party’s receipt thereof.
(h) Notwithstanding anything to the contrary contained herein, in no event shall the Servicer be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but no limited to lost profits), even if the Servicer has been advised of the likelihood of such loss or damage and regardless of the form of action; provided that nothing contained in this sentence limits the Servicer’s indemnity obligations pursuant to Section 8.02(a) to the extent such special, indirect, punitive or consequential damages are included in any third party claim against such Indemnified Party in connection with which such Indemnified Party is entitled to indemnification hereunder
(i) Notwithstanding anything herein to the contrary, each Indemnified Party hereby agrees to not seek payment from the Servicer with respect to any indemnification pursuant to this Section 8.02 prior to seeking payment from the Borrower (provided no payment shall need to be sought from the Borrower if the Borrower is insolvent or if the applicable party is stayed from such request under applicable Bankruptcy Laws) with respect to such indemnity; provided that if the Borrower is unable to make such payment on the Payment Date immediately following such written request, any Indemnified Party may then seek payment from the Servicer in accordance with this Section 8.02.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer hereby agrees to indemnify each of the Indemnified Party Parties forthwith on demand, from and against any and all Indemnified Amounts, Amounts awarded against or incurred by any Indemnified Party as a consequence of them arising out of or relating to the Servicer's performance of, or failure to perform, any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith its obligations under or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate Transaction Document, or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (or any of its officers officers) under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate Information Package or any other information or report delivered by or on behalf of the Servicer pursuant heretoServicer, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) , as the case may be, or the failure by of the Servicer to comply with (A) any termapplicable law, provision rule or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it regulation with respect to any Portfolio Assets;
Receivable or the related Contract. Notwithstanding the foregoing, in no event shall any Indemnified Party be awarded any Indemnified Amounts (iva) any litigationto the extent determined by a court of competent jurisdiction to have resulted from gross negligence or willful misconduct on the part of such Indemnified Party, proceedings or investigation against (b) as recourse for Indemnified Amounts to the Servicer;
(v) any action or inaction by extent the Servicer that causes the Collateral Agent, for the benefit same includes losses in respect of Receivables which are uncollectible on account of the Secured Partiesinsolvency, not to have a first priority perfected security interest bankruptcy or -42- lack of creditworthiness of the related Obligor, (c) that represent taxes based upon, or measured by, net income, of changes in the Collateral Portfoliorate of tax or as determined by reference to the overall net income, free and clear of such Indemnified Party, (d) that represent franchise taxes, taxes on, or in the nature of, doing business taxes or capital taxes or (e) that represent withholding taxes required for payments made to any Lien other than Permitted Liensforeign entity which, whether existing at the time such foreign entity issues its Commitment or Liquidity Commitment or becomes an assignee of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required a Lender hereunder, fails to be remitted deliver to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts)Borrower an accurate IRS Form W-8 BEN or W-8 ECI, as applicable. The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 13.2 (and subject to the exceptions set forth therein) is unavailable to the an Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilitiesharmless, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such lossesloss, claimsclaim, damages damage or liabilities liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Credit and Security Agreement (Packaging Corp of America)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any acts or omissions of the followingServicer in its capacity as Servicer and related to any Transaction Document, excluding, however, the transactions contemplated hereby or thereby or any certificate or other written material delivered by the Servicer pursuant hereto or thereto; provided that Indemnified Amounts shall not be available to an Indemnified Party (i) to the extent resulting that such Indemnified Amounts are determined by a court of competent jurisdiction by a final and non‑appealable judgment to have resulted from the gross negligence, bad faith negligence or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on for any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf amount of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit outstanding principal amount of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized Asset that constitutes recourse for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreementuncollectible amounts.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five ten (10) Business Days following receipt by the Servicer of the Administrative Agent’s 's written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(fd) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender AgentsCollateral Agent, the Account Bank or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Borrower, the Account Bank, the Backup Servicer Bank or the Collateral Custodian and the termination of this Agreement.
(ge) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified AmountsCollateral.
Appears in 1 contract
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party forthwith on demand from and against any and all Indemnified Amounts, awarded against or incurred determined in a final, non-appealable judgment by any Indemnified Party as a consequence court of any competent jurisdiction to have resulted from the actions of the followingServicer in performing its duties under the Transaction Documents strictly as Servicer thereunder constituting fraud, bad faith or willful misconduct (any such action, a “Servicer Breach”), excluding, however, Indemnified Amounts payable to an Indemnified Party (i) determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted from the extent resulting from gross negligence, bad faith negligence or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusionor its agent or subcontractor, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on resulting from the performance of the Loan Assets (including without limitation any representation change in the market value of such Loan Asset) unless such performance has resulted in a loss and was caused by a Servicer Breach, (iii) any loss in value of any Permitted Investment and (iv) in respect of Taxes (other than Taxes that represent losses or warranty made or deemed made by damages arising from a non-Tax claim); provided that the Servicer shall not have any liability hereunder to any Indemnified Party to the extent an Indemnified Party effects any settlement of a matter that is (or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf could be) subject to indemnification hereunder without the prior written consent of the Servicer pursuant hereto(which consent shall not be unreasonably withheld or delayed), which shall have been falsebut if settled with such consent or if there be a final judgment for the plaintiff, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer agrees to comply with (A) indemnify the Indemnified Party from and against any term, provision loss or covenant contained in this Agreement liability by reason of such settlement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted judgment to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants extent set forth in Article IV, Article V this Section 8.02. In no case shall the Servicer be responsible for any Indemnified Party’s lost revenues or Article VI of this Agreementlost profits.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf (or, with respect to any amounts owing to the Collateral Agent, the Collateral Custodian or the Account Bank, to the Collateral Agent), for the benefit of the applicable Indemnified Party Party, within five three (3) Business Days following receipt by the Servicer of the Administrative Agent’s (or the Collateral Agent’s, if applicable) written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(fd) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender AgentsCollateral Agent, the Account Bank or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Borrower, the Account Bank, the Backup Servicer Bank or the Collateral Custodian and the termination of this Agreement.
(ge) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified AmountsCollateral.
Appears in 1 contract
Samples: Loan and Servicing Agreement (HPS Corporate Lending Fund)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of (x) any acts or omissions by the Servicer in breach of its duties hereunder or under any other Transaction Document or (y) any breach by the Servicer of any representation, warranty or covenant of the following, excluding, however, Servicer hereunder or under any other Transaction Document; provided that Indemnified Amounts shall not be available to an Indemnified Party to the extent resulting that such Indemnified Amounts (i) are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted from the gross negligence, bad faith or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by resulting from the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf performance of the Servicer pursuant hereto, which Loan Assets (including without limitation any change in the market value of such Loan Asset). This Section 8.02 shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it not apply with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien Taxes other than Permitted Liensany Taxes that represent losses, whether existing at the time of the related Advance or claims and damages arising from any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreementnon-Tax claim.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five (5) Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(d) The obligations of the Servicer under this Section 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Collateral Agent, the Collateral Administrator, the Account Bank or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Borrower, the Account Bank or the Collateral Custodian and the termination of this Agreement.
(e) Any indemnification pursuant to this Section 8.02 shall not be payable from the Collateral.
(f) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Indemnities by Servicer. (a) Without limiting any other rights which that the Agent, the Managing Agents or any Indemnified Party Purchaser may have hereunder or under Applicable Lawapplicable law, the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party from and against any and all for Indemnified Amounts, Amounts awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts them relating to the extent or resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionfrom:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (or any officers of its officers Servicer) under or in connection with this Agreement or Agreement, any other Transaction Document, any Servicing Report, Servicer’s Certificate Document or any other information or report delivered by or on behalf of the Servicer pursuant heretohereto or thereto, which shall have been false, false or incorrect or misleading in any material respect when made or deemed made made;
(ii) the failure by Servicer to comply with any applicable law, rule or deliveredregulation with respect to any Receivable or Contract related thereto;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such dutiesDocument;
(xiv) failure the commingling of Collections of Receivables at any time with other funds;
(v) any investigation, litigation or delay in assisting a successor proceeding relating to Servicer in assuming each and all which any Indemnified Party becomes involved as a result of any of the Servicer’s obligations to service and administer transactions contemplated hereby;
(vi) any action or omission by the Collateral PortfolioServicer which reduces or impairs the rights of the Agent, the Managing Agents or failure or delay in complying with instructions from the Administrative Agent Purchasers with respect theretoto any Receivable or the value of any such Receivable; or
(xivii) the failure of any Receivable included in the calculation of the events Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included. Notwithstanding the foregoing, Servicer shall not have any liability under this Section 10.2 for:
(a) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or facts giving rise willful misconduct on the part of the Indemnified Party seeking indemnification;
(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 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 breach 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 Servicer or limit the recourse of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI Indemnified Parties to Servicer for amounts otherwise specifically provided to be paid by Servicer under the terms of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer or any Person to whom the Servicer delegates any of its duties or responsibilities pursuant to Section 6.02(e) (the “Subservicer”) hereby agrees to indemnify each Indemnified Party from and against any and all damages, losses, claims, liabilities and related costs and expenses (including reasonable attorneys’ fees and disbursements) (all of the foregoing being collectively referred to as “Servicer Indemnified Amounts, awarded against ”) suffered or incurred sustained by any Indemnified Party as a consequence of any of the following, excluding, however, Servicer Indemnified Amounts to the extent resulting solely from any gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionhereunder:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or the Subservicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant heretoAgreement, which shall have been false, false or incorrect or misleading in any material respect when made or deemed made or delivered;
(iiiii) the failure by the Servicer or the Subservicer to comply in all material respects with (A) any term, provision or covenant contained in this Agreement or any other Transaction DocumentAgreement, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law Law, applicable to it with respect to any Portfolio Assetsof the Collateral;
(iv) any litigation, proceedings or investigation against the Servicer;
(viii) any action or inaction by the Servicer or the Subservicer that causes the Collateral Agent, for the benefit of the Secured PartiesLenders, not to have a first priority perfected security interest (subject only to Permitted Liens) in any of the Collateral PortfolioCollateral, together with all Collections related thereto, free and clear of any Lien other than Permitted Liens, Adverse Claim whether existing at the time of the related Advance Closing Date or any time thereafter;
(viiv) the commingling by the Servicer or the Subservicer of the Collections required to be remitted to the Collection Account at any time with any other funds;
(viiv) any failure of the Servicer or any of its agents or representatives (including, without limitation, including agents, representatives and employees of such the Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to the Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receiptrepresentative;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ixvi) the failure by the Servicer to perform in all material respects any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;Agreement; and/or
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xivii) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of this AgreementVI.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Servicer Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five (5) Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.028.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party Party, pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Loan and Security Agreement (Iconix Brand Group, Inc.)
Indemnities by Servicer. (axvii) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer (if LEAF Financial or one of its Affiliates) hereby agrees to indemnify each Indemnified Party from and against any and all damages, losses, claims, liabilities and related costs and expenses (including reasonable attorneys’ fees and disbursements) (all of the foregoing being collectively referred to as “Servicer Indemnified Amounts, awarded against ”) suffered or incurred sustained by any Indemnified Party as a consequence of any of the following, excluding, however, Servicer Indemnified Amounts to the extent resulting solely from (A) any gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined hereunder, (B) taxes (including interest and penalties imposed thereon) imposed by the jurisdiction in a final decision which such Indemnified Party’s principal executive office is located, on or measured by a court the overall net income of competent jurisdictionsuch Indemnified Party; (C) Indemnified Amounts to the extent that they are or result from lost profits (other than principal, interest and Fees with respect to the Loans); and (D) Indemnified Amounts to the extent the same includes losses that arise solely due to Receivables being uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor or would constitute recourse to Servicer for such losses:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or Monthly Remittance Report or other report prepared by it hereunder, of any Loan Assets Pledged Receivables which were not Eligible Loan Assets Receivables as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (if LEAF Financial or one of its Affiliates) or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant heretoAgreement, which shall have been false, false or incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer (if LEAF Financial or any of its Affiliates) to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction DocumentAgreement, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable law, rule or regulation applicable to it with respect to any Portfolio Pledged Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer (if LEAF Financial or one of its Affiliates) that causes the Collateral Agent, for the benefit of the Secured Parties, Agent not to have a first priority perfected security interest in the Receivables that are, or are purported to be, Pledged Receivables, together with all related Other Conveyed Property, Collections, Related Security and other Pledged Assets related thereto (including without limitation, the Borrower’s interest in and to any and all Obligor Collateral Portfoliowith respect to such Receivables), free and clear of any Lien other than Permitted Liens, Adverse Claim whether existing at the time of the related Advance Borrowing or any time thereafter;
(viv) the commingling by the Servicer (if LEAF Financial or one of its Affiliates) of the Collections required to be remitted to the Collection Account of Pledged Receivables at any time with any other funds;
(viivi) any failure of the Servicer (if LEAF Financial or one of its Affiliates) or any of its agents or representatives (including, without limitation, agents, representatives and employees of such the Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets of Pledged Receivables remitted to the Servicer or any such agent or representative within two Business Days of receiptrepresentative;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ixvii) the failure by the Servicer (if LEAF Financial or any of its Affiliates) to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;; and/or
(xviii) failure or delay in assisting a successor notwithstanding whether any Pledged Receivable shall have been repurchased by the Servicer in assuming each and all of the Servicer’s obligations pursuant to service and administer the Collateral PortfolioSection 6.20, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of this AgreementVI.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Resource America Inc)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith negligence or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionor Taxes other than Taxes that represent losses, claims, damages or damages arising from any non-Tax claim:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets as Eligible Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer; AmericasActive:18709990.5
(v) [Reserved];
(vvi) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vivii) the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;
(viiviii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to the Collection Account, Collections Account payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties[Reserved];
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; orand/or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party (or to the Administrative Agent, for the benefit of the Collateral Agent or the Lenders), within five Business Days following receipt by the Servicer of the Administrative AgentIndemnified Party’s written demand therefor on behalf of the applicable Indemnified Party (and and, if applicable, the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any applicable Indemnified Party making a request for indemnification under this Section 9.02, 8.02 shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(ed) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(fe) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Collateral Administrator or the Collateral Custodian and the termination of this Agreement.
(gf) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each AmericasActive:18709990.5
(g) To the extent disclosure thereof is not restricted, each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and 8.01 or Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, 8.02 copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified AmountsAmounts within a reasonable time after such Indemnified Party’s receipt thereof.
(h) Notwithstanding anything to the contrary contained herein, in no event shall the Servicer be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but no limited to lost profits), even if the Servicer has been advised of the likelihood of such loss or damage and regardless of the form of action; provided that nothing contained in this sentence limits the Servicer’s indemnity obligations pursuant to Section 8.02(a) to the extent such special, indirect, punitive or consequential damages are included in any third party claim against such Indemnified Party in connection with which such Indemnified Party is entitled to indemnification hereunder
(i) Notwithstanding anything herein to the contrary, each Indemnified Party hereby agrees to not seek payment from the Servicer with respect to any indemnification pursuant to this Section 8.02 prior to seeking payment from the Borrower (provided no payment shall need to be sought from the Borrower if the Borrower is insolvent or if the applicable party is stayed from such request under applicable Bankruptcy Laws) with respect to such indemnity; provided that if the Borrower is unable to make such payment on the Payment Date immediately following such written request, any Indemnified Party may then seek payment from the Servicer in accordance with this Section 8.02.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Indemnities by Servicer. (aq) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer (if LEAF Financial or one of its Affiliates) hereby agrees to indemnify each Indemnified Party from and against any and all damages, losses, claims, liabilities and related costs and expenses (including reasonable attorneys’ fees and disbursements) (all of the foregoing being collectively referred to as “Servicer Indemnified Amounts, awarded against ”) suffered or incurred sustained by any Indemnified Party as a consequence of any of the following, excluding, however, Servicer Indemnified Amounts to the extent resulting solely from (A) any gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined hereunder, (B) taxes (including interest and penalties imposed thereon) imposed by the jurisdiction in a final decision which such Indemnified Party’s principal executive office is located, on or measured by a court the overall net income of competent jurisdictionsuch Indemnified Party; (C) Indemnified Amounts to the extent that they are or result from lost profits (other than principal, interest and Fees with respect to the Loans); and (D) Indemnified Amounts to the extent the same includes losses that arise solely due to Receivables being uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor or would constitute recourse to Servicer for such losses:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Facility Limit Certificate or Monthly Remittance Report or other report prepared by it hereunder, of any Loan Assets Pledged Receivables which were not Eligible Loan Assets Receivables as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (if LEAF Financial or one of its Affiliates) or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant heretoAgreement, which shall have been false, false or incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer (if LEAF Financial or any of its Affiliates) to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction DocumentAgreement, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable law, rule or regulation applicable to it with respect to any Portfolio Pledged Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer (if LEAF Financial or one of its Affiliates) that causes the Collateral Agent, for the benefit of the Secured Parties, Agent not to have a first priority perfected security interest in the Receivables that are, or are purported to be, Pledged Receivables, together with all related Other Conveyed Property, Collections, Related Security and other Pledged Assets related thereto (including without limitation, the Borrower’s interest in and to any and all Obligor Collateral Portfoliowith respect to such Receivables), free and clear of any Lien other than Permitted Liens, Adverse Claim whether existing at the time of the related Advance Borrowing or any time thereafter;
(viv) the commingling by the Servicer (if LEAF Financial or one of its Affiliates) of the Collections required to be remitted to the Collection Account of Pledged Receivables at any time with any other funds;
(viivi) any failure of the Servicer (if LEAF Financial or one of its Affiliates) or any of its agents or representatives (including, without limitation, agents, representatives and employees of such the Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets of Pledged Receivables remitted to the Servicer or any such agent or representative within two Business Days of receiptrepresentative;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ixvii) the failure by the Servicer (if LEAF Financial or any of its Affiliates) to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;; and/or
(xviii) failure or delay in assisting a successor notwithstanding whether any Pledged Receivable shall have been repurchased by the Servicer in assuming each and all of the Servicer’s obligations pursuant to service and administer the Collateral PortfolioSection 6.20, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of this AgreementVI.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Resource America Inc)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of breach by the followingServicer which is related to any Transaction Document, excluding, however, the transactions contemplated hereby or thereby or any certificate or other written material delivered by the Servicer pursuant hereto or thereto; provided that Indemnified Amounts shall not be available to an Indemnified Party to the extent resulting that such Indemnified Amounts are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted solely from the gross negligence, bad faith negligence or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five two (2) Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.028.02, shall submit to provide the Servicer a certificate setting forth with written notice (which shall include calculations in reasonable detail the basis for and the computations detail) of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(d) The obligations of the Servicer under this Section 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Collateral Agent, the Account Bank or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Borrower, the Account Bank or the Collateral Custodian and the termination of this Agreement.
(e) The Any indemnification pursuant to this Section 8.02 shall not be payable from the Collateral.
(f) Without limiting clause (a) above, the Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionhereunder:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) comply with any material term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, Agreement or (B) comply with any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first first-priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) except as permitted under this Agreement, the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(ix) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements and/or covenants set forth in Article IV, Article V or Article VI of this Agreement; and/or
(x) failure or delay in reasonably assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with reasonable instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.028.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(ed) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(fe) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Bank or the Collateral Custodian and the termination of this Agreement.
(gf) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any acts or omissions of the followingServicer in its capacity as Servicer and related to any Transaction Document, excluding, however, the transactions contemplated hereby or thereby or any certificate or other written material delivered by the Servicer pursuant hereto or thereto; provided that Indemnified Amounts shall not be available to an Indemnified Party to the extent resulting that such Indemnified Amounts are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted from the gross negligence, bad faith faith, fraud or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five thirteen (13) Business Days following receipt by the Servicer of the Administrative Agent’s 's written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(d) The obligations of the Servicer under this Section 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Collateral Agent, the Account Bank or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Borrower, the Account Bank or the Collateral Custodian and the termination of this Agreement.
(e) Any indemnification pursuant to this Section 8.02 shall not be payable from the Collateral.
(f) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Loan and Servicing Agreement (First Eagle Private Credit Fund)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Purchaser (together with its officers, directors, agents, representatives, shareholders, counsel and employees, each, an “Indemnified Party Party”) from and against any and all claims, losses and liabilities (including, without limitation, reasonable attorneys’ fees) (all of the foregoing being collectively referred to as “Indemnified Amounts, awarded against ”) arising out of or incurred by any Indemnified Party as a consequence of resulting from any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
: (i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (or any of its officers respective officers) under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of (except with respect to the Servicer pursuant hereto, Purchased Receivables) which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
made; (iiiii) the failure by the Servicer to comply with any applicable law, rule or regulation with respect to any Purchased Receivable; (Aiii) any term, provision failure by Servicer to perform its duties or covenant contained obligations as Servicer hereunder in accordance with this Agreement or any claim brought by any Person other Transaction Document, or any other agreement executed in connection with this Agreement, than an Indemnified Party arising from Servicer’s collection activities; or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account at any time with other funds;
(vii) any failure funds of the Servicer or any other Person. The foregoing indemnification shall not apply in the case any claims, losses or liabilities to the extent resulting solely from (i) the gross negligence or willful misconduct of its agents an Indemnified Party as determined in a final non-appealable judgment by a court of competent jurisdiction, (ii) lack of credit worthiness of the related Account Debtor or representatives an Account Debtor Insolvency Event or (including, without limitation, agents, representatives and employees iii) (x) enforcement or similar actions of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections the Purchaser with respect to Loan Assets remitted a related Purchased Receivable as against the Account Debtor and which (as determined in a final non appealable judgment by a court of competent jurisdiction) are in material violation of applicable law relating to the Servicer such action or any such agent (y) a Dispute or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure Dilution by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party Account Debtor not as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party anything relating to the claim giving rise product or service provided to such Account Debtor by the Indemnified AmountsOriginator, Seller or Servicer, but solely as a result of a separate and distinct transaction or agreement between the Account Debtor and the Purchaser and not in any way related to this Agreement or the transactions contemplated hereby. Amounts due hereunder shall accrue interest at the Delinquent Rate.
Appears in 1 contract
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Purchaser (together with its officers, directors, agents, representatives, shareholders, counsel and employees, each, an “Indemnified Party Party”) from and against any and all claims, losses and liabilities (including, without limitation, reasonable attorneys’ fees) (all of the foregoing being collectively referred to as “Indemnified Amounts, awarded against ”) arising out of or incurred by any Indemnified Party as a consequence of resulting from any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
: (i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (or any of its officers respective officers) under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of (except with respect to the Servicer pursuant hereto, Purchased Receivables) which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
made; (iiiii) the failure by the Servicer to comply with any applicable law, rule or regulation with respect to any Purchased Receivable; (Aiii) any termfailure by Servicer or Originator to perform its duties or obligations hereunder in accordance with this Agreement or under any other Transaction Document to which it is a party, provision or covenant contained any claim brought by any Person other than an Indemnified Party arising from Servicer’s collection activities; or (iv) except as otherwise expressly provided in this Agreement or in any of the other Transaction DocumentDocuments, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account at any time with other funds;
(vii) any failure funds of the Servicer or any other Person. The foregoing indemnification shall not apply in the case any claims, losses or liabilities to the extent resulting solely from (A) the gross negligence or willful misconduct of its agents an Indemnified Party as determined in a final non-appealable judgment by a court of competent jurisdiction, (B) lack of credit worthiness of the related Account Debtor or representatives an Account Debtor Insolvency Event or (including, without limitation, agents, representatives and employees C) (w) enforcement or similar actions of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections the Purchaser with respect to Loan Assets remitted a related Purchased Receivable as against the Account Debtor and which (as determined in a final non appealable judgment by a court of competent jurisdiction) are in material violation of applicable law relating to such action, (x) a Dispute or Dilution by the Account Debtor not as a result of anything relating to the Servicer product or any service provided to such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure Debtor by the Servicer Originator, Seller or Servicer, but solely as a result of a separate and distinct transaction or agreement between the Account Debtor and the Purchaser and not in any way related to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
the transactions contemplated hereby (xy) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfoliotaxes imposed upon Purchaser under FATCA, or failure or delay in complying with instructions from the Administrative Agent (z) with respect thereto; or
(xi) to the occurrence of any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IVclause (iii) or (iv) above, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan AssetsPurchased Receivable has been repurchased by the Seller. Amounts due hereunder shall accrue interest at the Delinquent Rate.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each the Indemnified Party Parties from and against any and all claims, losses and liabilities (including, without limitation, reasonable attorneys’ fees) (all of the foregoing being collectively referred to as “Indemnified Amounts, awarded against ”) arising out of or incurred by any Indemnified Party as a consequence of resulting from any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
: (i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (or any of its officers respective officers) under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of (except with respect to the Servicer pursuant hereto, Purchased Receivables) which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
made; (iiiii) the failure by the Servicer to comply with any applicable law, rule or regulation with respect to any Purchased Receivable; (Aiii) any termfailure by Servicer or Originator to perform its duties or obligations hereunder in accordance with this Agreement or under any other Transaction Document to which it is a party, provision or covenant contained any claim brought by any Person other than an Indemnified Party arising from Servicer’s collection activities; or (iv) except as otherwise expressly provided in this Agreement or in any of the other Transaction DocumentDocuments, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account at any time with other funds;
(vii) any failure funds of the Servicer or any other Person. The foregoing indemnification shall not apply in the case any claims, losses or liabilities to the extent resulting solely from (A) the gross negligence or willful misconduct of its agents the Indemnified Party making a claim hereunder as determined in a final non- appealable judgment by a court of competent jurisdiction, (B) lack of credit worthiness of the related Account Debtor or representatives an Account Debtor Insolvency Event or (including, without limitation, agents, representatives and employees C) (w) enforcement or similar actions of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections Purchaser with respect to Loan Assets remitted a related Purchased Receivable as against the Account Debtor and which (as determined in a final non appealable judgment by a court of competent jurisdiction) are in material violation of applicable law relating to such action, (x) a Dispute or Dilution by the Account Debtor not as a result of anything relating to the Servicer product or any service provided to such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure Debtor by the Servicer Originator, Seller or Servicer, but solely as a result of a separate and distinct transaction or agreement between the Account Debtor and a Purchaser and not in any way related to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
the transactions contemplated hereby (xy) failure or delay in assisting taxes imposed upon a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral PortfolioPurchaser under FATCA, or failure or delay in complying with instructions from the Administrative Agent (z) with respect thereto; or
(xi) to the occurrence of any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IVclause (iii) or (iv) above, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan AssetsPurchased Receivable has been repurchased by the Seller. Amounts due hereunder shall accrue interest at the Delinquent Rate.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Receivables Sale Agreement and Receivables Purchase Agreement (Constellium Se)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer (if LEAF Financial or one of its Affiliates) hereby agrees to indemnify each Indemnified Party from and against any and all damages, losses, claims, liabilities and related costs and expenses (including reasonable attorneys’ fees and disbursements) (all of the foregoing being collectively referred to as “Servicer Indemnified Amounts, awarded against ”) suffered or incurred sustained by any Indemnified Party as a consequence of any of the following, excluding, however, Servicer Indemnified Amounts to the extent resulting solely from (A) any gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined hereunder, (B) taxes (including interest and penalties imposed thereon) imposed by the jurisdiction in a final decision which such Indemnified Party’s principal executive office is located, on or measured by a court the overall net income of competent jurisdictionsuch Indemnified Party; (C) Indemnified Amounts to the extent that they are or result from lost profits (other than principal, Yield and Fees with respect to the Loans); and (D) Indemnified Amounts to the extent the same includes losses that arise solely due to Receivables being uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor or would constitute recourse to Servicer for such losses:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or Monthly Remittance Report or other report prepared by it hereunder, of any Loan Assets Pledged Receivables which were not Eligible Loan Assets Receivables as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (if LEAF Financial or one of its Affiliates) or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant heretoAgreement, which shall have been false, false or incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer (if LEAF Financial or any of its Affiliates) to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction DocumentAgreement, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable law, rule or regulation applicable to it with respect to any Portfolio Pledged Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer (if LEAF Financial or one of its Affiliates) that causes the Collateral Agent, for the benefit of the Secured PartiesLender, not to have a first priority perfected security interest in the Receivables that are, or are purported to be, Pledged Receivables, together with all related Other Conveyed Property, Collections, Related Security and other Pledged Assets related thereto (including without limitation, the Borrower’s interest in and to any and all Obligor Collateral Portfoliowith respect to such Receivables), free and clear of any Lien other than Permitted Liens, Adverse Claim whether existing at the time of the related Advance Borrowing or any time thereafter;
(viv) the commingling by the Servicer (if LEAF Financial or one of its Affiliates) of the Collections required to be remitted to the Collection Account of Pledged Receivables at any time with any other funds;
(viivi) any failure of the Servicer (if LEAF Financial or one of its Affiliates) or any of its agents or representatives (including, without limitation, agents, representatives and employees of such the Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets of Pledged Receivables remitted to the Servicer or any such agent or representative within two Business Days of receiptrepresentative;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ixvii) the failure by the Servicer (if LEAF Financial or any of its Affiliates) to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;; and/or
(xviii) failure or delay in assisting a successor notwithstanding whether any Pledged Receivable shall have been repurchased by the Servicer in assuming each and all of the Servicer’s obligations pursuant to service and administer the Collateral PortfolioSection 6.22, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of this AgreementVI.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Servicer Indemnified Amounts shall be paid by the Servicer (if LEAF Financial or one of its Affiliates) to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five two (2) Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party indemnifying party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;; 152 DMSLIBRARY01\32370595.v1
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.. 153 DMSLIBRARY01\32370595.v1
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer hereby agrees to indemnify each of the Indemnified Party Parties forthwith on demand, from and against any and all Indemnified Amounts, Amounts awarded against or incurred by any Indemnified Party as a consequence of them arising out of or relating to the Servicer's performance of, or failure to perform, any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith its obligations under or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate Transaction Document, or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (or any of its officers officers) under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate Information Package or any other information or report delivered by or on behalf of the Servicer pursuant heretoServicer, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) , as the case may be, or the failure by of the Servicer to comply with (A) any termapplicable law, provision rule or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it regulation with respect to any Portfolio Assets;
Receivable or the related Contract and/or Invoice. Notwithstanding the foregoing, in no event shall any Indemnified Party be awarded any Indemnified Amounts (iva) any litigation, proceedings to the extent determined by a court of competent jurisdiction to have resulted from gross negligence or investigation against willful misconduct on the Servicer;
part of such Indemnified Party or (vb) any action or inaction by as recourse for Indemnified Amounts to the Servicer that causes extent the Collateral Agent, for the benefit same includes losses in respect of Receivables which are uncollectible on account of the Secured Partiesinsolvency, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear bankruptcy or lack of any Lien other than Permitted Liens, whether existing at the time creditworthiness of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts)Obligor. The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 SECTION 13.2 (and subject to the exceptions set forth therein) is unavailable to the an Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilitiesharmless, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such lossesloss, claimsclaim, damages damage or liabilities liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Credit and Security Agreement (Interim Services Inc)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any acts or omissions of the following, excluding, however, Servicer arising out of a breach of its obligations and duties under this Agreement or any other Transaction Document to which it is a party; provided that Indemnified Amounts shall not be available to an Indemnified Party to the extent resulting that such Indemnified Amounts are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted from the gross negligence, bad faith faith, fraud or willful misconduct on the part of any such Indemnified Party claiming indemnification hereunder hereunder; provided, further, that, notwithstanding the foregoing or anything else in this Agreement to the contrary, the Servicer hereby further agrees to indemnify the Administrative Agent from any indemnification expenses the Administrative Agent may incur under any rating agency engagement letter executed by the Administrative Agent as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, result of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made written information furnished by the Servicer Borrower or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision such rating agency or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any expressly for the purpose of the events or facts giving rise Administrative Agent furnishing such information to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreementsuch rating agency.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five two (2) Business Days following USActive 55125247.5 152 receipt by the Servicer of the Administrative Agent’s 's written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(d) The obligations of the Servicer under this Section 8.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Collateral Agent, the Account Bank or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Borrower, the Account Bank or the Collateral Custodian and the termination of this Agreement.
(e) Any indemnification pursuant to this Section 8.02 shall not be payable from the Collateral.
(f) Notwithstanding anything herein to the contrary, each Indemnified Party hereby agrees to not seek payment from the Servicer with respect to any indemnification pursuant to this Section 8.02 prior to seeking payment from the Borrower (provided no payment shall need to be sought from the Borrower if the Borrower is insolvent or if the applicable party is stayed from such request under applicable Bankruptcy Laws) with respect to such indemnity; provided that if the Borrower is unable to make such payment, any Indemnified Party may then seek payment from the Servicer in accordance with this Section 8.02.
(g) Notwithstanding anything to the contrary contained herein, in no event shall the Servicer be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Servicer has been advised of the likelihood of such loss or damage and regardless of the form of action.
(h) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Loan and Servicing Agreement (BlackRock TCP Capital Corp.)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer hereby agrees to indemnify each of the Indemnified Party Parties forthwith on demand, from and against any and all Indemnified Amounts, Amounts awarded against or incurred by any Indemnified Party as a consequence of them arising out of or relating to the Servicer's performance of, or failure to perform, any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith its obligations under or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate Transaction Document, or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (or any of its officers officers) under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate Document or any other information or report delivered by or on behalf of the Servicer pursuant heretoServicer, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) , as the case may be, or the failure by of the Servicer to comply with (A) any termapplicable law, provision rule or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it regulation with respect to any Portfolio Assets;
Pool Receivable or the related Contract. Notwithstanding the foregoing, in no event shall any Indemnified Party be awarded any Indemnified Amounts (iva) any litigation, proceedings or investigation against to the Servicer;
(v) any action or inaction extent determined by the Servicer that causes the Collateral Agent, for the benefit a court of the Secured Parties, not competent jurisdiction to have a first priority perfected security interest in resulted from gross negligence or willful misconduct on the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees part of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer Indemnified Party or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject recourse for (except as otherwise specifically provided in this Agreement) to Servicer for non-payment of the Pool Receivables due to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf credit problems of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts)Obligors thereof. The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 13.02 (and subject to the exceptions set forth therein) is unavailable to the an Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilitiesharmless, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such lossesloss, claimsclaim, damages damage or liabilities liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Asset Interest Transfer Agreement (Westpoint Stevens Inc)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer (if LEAF Financial or one of its Affiliates) hereby agrees to indemnify each Indemnified Party from and against any and all damages, losses, claims, liabilities and related costs and expenses (including reasonable attorneys’ fees and disbursements) (all of the foregoing being collectively referred to as “Servicer Indemnified Amounts, awarded against ”) suffered or incurred sustained by any Indemnified Party as a consequence of any of the following, excluding, however, Servicer Indemnified Amounts to the extent resulting solely from (A) any gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined hereunder, (B) taxes (including interest and penalties imposed thereon) imposed by the jurisdiction in a final decision which such Indemnified Party’s principal executive office is located, on or measured by a court the overall net income of competent jurisdictionsuch Indemnified Party; (C) Indemnified Amounts to the extent that they are or result from lost profits (other than principal, interest and Fees with respect to the Loans); and (D) Indemnified Amounts to the extent the same includes losses that arise solely due to Receivables being uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor or would constitute recourse to Servicer for such losses:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or Monthly Remittance Report or other report prepared by it hereunder, of any Loan Assets Pledged Receivables which were not Eligible Loan Assets Receivables as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (if LEAF Financial or one of its Affiliates) or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant heretoAgreement, which shall have been false, false or incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer (if LEAF Financial or any of its Affiliates) to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction DocumentAgreement, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable law, rule or regulation applicable to it with respect to any Portfolio Pledged Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer (if LEAF Financial or one of its Affiliates) that causes the Collateral Agent, for the benefit of the Secured Parties, Agent not to have a first priority perfected security interest in the Receivables that are, or are purported to be, Pledged Receivables, together with all related Other Conveyed Property, Collections, Related Security and other Pledged Assets related thereto (including without limitation, the Borrower’s interest in and to any and all Obligor Collateral Portfoliowith respect to such Receivables), free and clear of any Lien other than Permitted Liens, Adverse Claim whether existing at the time of the related Advance Borrowing or any time thereafter;
(viv) the commingling by the Servicer (if LEAF Financial or one of its Affiliates) of the Collections required to be remitted to the Collection Account of Pledged Receivables at any time with any other funds;
(viivi) any failure of the Servicer (if LEAF Financial or one of its Affiliates) or any of its agents or representatives (including, without limitation, agents, representatives and employees of such the Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets of Pledged Receivables remitted to the Servicer or any such agent or representative within two Business Days of receiptrepresentative;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ixvii) the failure by the Servicer (if LEAF Financial or any of its Affiliates) to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;; and/or
(xviii) failure or delay in assisting a successor notwithstanding whether any Pledged Receivable shall have been repurchased by the Servicer in assuming each and all of the Servicer’s obligations pursuant to service and administer the Collateral PortfolioSection 6.20, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of this AgreementVI.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Resource America Inc)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer hereby agrees to indemnify each of the Indemnified Party Parties forthwith on demand, from and against any and all Indemnified Amounts, Amounts awarded against or incurred by any Indemnified Party as a consequence of any them arising out of the following, excluding, however, Indemnified Amounts or relating to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusionServicer's performance of, in or failure to perform, any computations made by it of its obligations under or in connection with any Borrowing Base Certificate or other report prepared by it hereunderTransaction Document, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (or any of its officers officers) under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate Monthly Report or any other information or report delivered by or on behalf of the Servicer pursuant heretoServicer, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
, as the case may be, (iii) the failure by of the Servicer to comply with (A) any termapplicable law, provision rule or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it regulation with respect to any Portfolio Assets;
Receivable or the related Contract and Invoice or (iv) any litigation, proceedings or investigation against the Servicer;
(v) commingling of any action or inaction funds by the Servicer relating to the Receivables with any of its funds or the funds of any other Person. Notwithstanding the foregoing, in no event shall any Indemnified Party be indemnified from and against any and all (i) Indemnified Amounts to the extent determined by a court of competent jurisdiction to have resulted from gross negligence or willful misconduct on the part of such Indemnified Party, (ii) 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; and or (iii) recourse (except as otherwise specifically provided in this Agreement) for Indemnified Amounts to the extent the same includes losses in respect of Receivables that causes were Eligible Receivables on the Collateral Agent, for date such Receivables were purchased by the benefit Borrower which are uncollectible on account of the Secured Partiesinsolvency, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear bankruptcy or lack of any Lien other than Permitted Liens, whether existing at the time creditworthiness of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this AgreementObligor.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 10.2 (and subject to the exceptions set forth therein) is unavailable to the an Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilitiesharmless, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such lossesloss, claimsclaim, damages damage or liabilities liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Credit and Security Agreement (Boston Scientific Corp)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, the Servicer hereby agrees to indemnify each of the Indemnified Party Parties forthwith on demand, from and against any and all Indemnified Amounts, Amounts awarded against or incurred by any Indemnified Party as a consequence of them arising out of or relating to the Servicer’s performance of, or failure to perform, any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith its obligations under or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate Transaction Document, or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (or any of its officers officers) under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate Settlement Report or any other information or report delivered by or on behalf of the Servicer pursuant heretoServicer, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) , as the case may be, or the failure by of the Servicer to comply with (A) any termapplicable law, provision rule or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it regulation with respect to any Portfolio Assets;
Receivable or the related Contract. Notwithstanding the foregoing, in no event shall any Indemnified Party be awarded any Indemnified Amounts (iva) any litigation, proceedings or investigation against to the Servicer;
(v) any action or inaction extent determined by the Servicer that causes the Collateral Agent, for the benefit a court of the Secured Parties, not competent 48 jurisdiction to have a first priority perfected security interest in resulted from gross negligence or willful misconduct on the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees part of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer Indemnified Party or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts)recourse for Defaulted Receivables. The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 13.2 (and subject to the exceptions set forth therein) is unavailable to the an Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilitiesharmless, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such lossesloss, claimsclaim, damages damage or liabilities liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Credit and Security Agreement (Lanier Worldwide Inc)
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdictionhereunder:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;
(iv) any litigation, proceedings or investigation against the Servicer;
(v) any action or inaction by the Servicer that causes the Collateral AgentTrustee, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(vi) except as permitted by this Agreement and the Intercreditor Agreement, the commingling by the Servicer of Collections payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;; and/or
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xiix) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or and/or covenants set forth in Article IV, Article V or Article VI of or this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 Indemnified Amounts shall be paid by the Servicer to the Administrative Agent on behalf Agent, for the benefit of the applicable Indemnified Party Party, within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any indemnity payments in respect of Indemnified Amounts to the Administrative Agent Agent, on behalf of an Indemnified Party pursuant to this Section 9.02 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified AmountsServicer, without interest.
(ed) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(fe) The obligations of the Servicer under this Section 9.02 8.02 shall survive the resignation or removal of the Administrative Agent, the LendersNote Purchaser, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer Trustee or the Collateral Custodian and the termination of this Agreement.
(gf) Any indemnification pursuant to this Section 9.02 8.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 8.01 and Section 9.028.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Indemnities by Servicer. (a) Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Lawapplicable law, except as Servicer and Agent may hereafter otherwise agree in writing, the Servicer hereby agrees to indemnify each of the Indemnified Party Parties forthwith on demand, from and against any and all Indemnified Amounts, Amounts awarded against or incurred by any Indemnified Party as a consequence of them arising out of or relating to the Servicer performance of, or failure to perform, any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith its obligations under or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder as determined in a final decision by a court of competent jurisdiction:
(i) the inclusion, in any computations made by it in connection with any Borrowing Base Certificate Transaction Document, or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;
(ii) reliance on any representation or warranty made or deemed made by the Servicer (or any of its officers officers) under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate Document or any other information or report delivered by or on behalf of the Servicer pursuant heretoServicer, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;
(iii) , as the case may be, or the failure by of the Servicer to comply with (A) any termapplicable law, provision rule or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it regulation with respect to any Portfolio Assets;
Receivable or the related Contract. Notwithstanding the foregoing, in no event shall any Indemnified Party be awarded any Indemnified Amounts (ivi) any litigationto the extent determined by a court of competent jurisdiction pursuant to a final, proceedings non-appealable order to have resulted from gross negligence or investigation against willful misconduct on the Servicer;
part of such Indemnified Party or (vii) any action or inaction by the constituting recourse (except as otherwise specifically provided in this Agreement) to Servicer that causes the Collateral Agent, for the benefit non-payment of the Secured Parties, not Receivables due to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time credit problems of the related Advance or any time thereafter;
(vi) the commingling by the Servicer of Collections required to be remitted to the Collection Account with other funds;
(vii) any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection Account, Collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;
(viii) the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) permits or causes or authorizes the withdraw from the Collection Account of amounts not expressly authorized for withdrawal hereunder;
(ix) the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties;
(x) failure or delay in assisting a successor Servicer in assuming each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, or failure or delay in complying with instructions from the Administrative Agent with respect thereto; or
(xi) any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements or covenants set forth in Article IV, Article V or Article VI of this AgreementObligors thereof.
(b) Any amounts subject to the indemnification provisions of this Section 9.02 shall be paid by the Servicer to the Administrative Agent on behalf of the applicable Indemnified Party within five Business Days following receipt by the Servicer of the Administrative Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Administrative Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Administrative Agent of such amounts). The Administrative Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 9.02, shall submit to the Servicer a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.02 12.2 (and subject to the exceptions set forth therein) is unavailable to the an Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilitiesharmless, then the Servicer shall contribute to the amount paid or payable by such Indemnified Party as a result of such lossesloss, claimsclaim, damages damage or liabilities liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Servicer on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Servicer shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.02(a).
(d) If the Servicer has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.
(f) The obligations of the Servicer under this Section 9.02 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer or the Collateral Custodian and the termination of this Agreement.
(g) Any indemnification pursuant to this Section 9.02 shall not be payable from the Collateral Portfolio. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 9.01 and Section 9.02, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.
Appears in 1 contract
Samples: Loan and Security Agreement (Westpoint Stevens Inc)
