Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 “Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this Agreement, excluding, however, Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from: (i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan; (ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered; (iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral; (iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral; (v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents; (vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan); (vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans; (viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property; (ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral; (x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid; (xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property; (xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or (xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections. (b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor. (c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations. (d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement. (e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 10 contracts
Samples: Fifth Amended and Restated Credit Agreement (Gladstone Investment Corporation\de), Credit Agreement (Gladstone Investment Corporation\de), Credit Agreement (Gladstone Investment Corporation\de)
Indemnities by the Borrower. (a) Without limiting any other rights that which any such Person Affected Party may have hereunder or under Applicable Lawapplicable law (including, without limitation, the right to recover damages for breach of contract), the Borrower hereby agrees to indemnify each Lender, the Administrative Program Agent, each Managing Agent, the Managing AgentsServicer (if not an Affiliate of the Borrower), the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee Paying Agent and each of Liquidity Provider, and their respective Affiliates and officers, directors, employees, members officers and agents thereof employees (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable external attorneys’ fees and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) ), awarded against or incurred by, any by such Indemnified Party to the extent relating to or other non-monetary damages of any such Indemnified Party any of them arising out of from or as a result of this Agreement, excluding, however, Indemnified Amounts Agreement or the funding or maintenance of Loans made by a Lender hereunder subject to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Partyproviso set forth below. Without limiting the foregoinggenerality of the foregoing indemnification, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts to the extent relating to or resulting fromfrom any of the following:
(i) the failure of any Loan treated as or Pledged Contract represented by the Borrower to be an Eligible Loan that is not Contract hereunder to be an “Eligible Contract” at the applicable time an Eligible Loanof such representation;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Borrower under this Agreement or any of their respective officers under or in connection with this Agreement, other Facility Document to which it is a party which shall have been false or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement, the Purchase Agreement or any agreement executed in connection with this Agreement, other Facility Document to which it is party or with any Applicable Law applicable law, rule or regulation with respect to any Loan comprising a portion of the Pledged Contract or other Collateral, or the nonconformity of any Loan, the Related Property Pledged Contract or other Collateral with any such Applicable Law applicable law, rule or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateralregulation;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise any Financed Vehicle or services that other goods or services, the sale or provision of which gave rise to or are the subject of any Transferred Loan or the Related PropertyPledged Contract;
(ixv) the failure by Borrower to pay when due any Taxes for which the Borrower is liabletaxes, including including, without limitation, sales, excise or personal property taxes payable by the Borrower in connection with the Collateral;
(xvi) the payment by such Indemnified Party 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 Borrower’s actions or failure to act in breach of this Agreement;
(vii) the failure to vest and maintain vested in the Program Agent, on behalf of the Secured Parties, a first priority perfected security interest in the Collateral, free and clear of any Lien except a Lien in favor of the Program Agent, whether existing at the time such Collateral arose or at any time thereafter;
(viii) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the applicable UCC or other applicable laws naming the Borrower as “Debtor” with respect to any Collateral;
(ix) any repayment by dispute, claim, offset or defense (other than as a result of the Administrative Agent, any Managing Agent bankruptcy or insolvency of the related Contract Debtor) of a Secured Party Contract Debtor to the payment of any amount previously distributed Pledged Contract (including, without limitation, a defense based on such Pledged Contract not being a legal, valid and binding obligation of such Contract Debtor enforceable against it in reduction of Advances Outstanding or payment of Interest accordance with its terms), or any other amount due hereunder claim resulting from the sale or under financing of the Financed Vehicle related to such Pledged Contract (other than as a result of the bankruptcy or insolvency of the related Contract Debtor);
(x) the commingling of Collections with any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaidother funds;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property Pledged Contract, or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of or the Bankruptcy Code;
(xii) the failure of any Depository Account Bank to remit any amounts or items of payment held in a Depository Account or in a Lock-Box pursuant to the instructions of the Program Agent given in accordance with this Agreement, orthe Master Agency Agreement or the other Facility Documents, whether by reason of the exercise of setoff rights or otherwise;
(xiii) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Loans made pursuant to this Agreement or any other Facility Document delivered hereunder or in respect of any of the Collateral;
(xiv) any claim brought by any Person arising from any activity by the Borrower in servicing, administering or collecting any Pledged Contract; or
(xv) the grant by the Borrower of a security interest in any Pledged Contract in violation of any applicable law, rule or regulation; provided, however, that the Borrower shall not be required to indemnify any Indemnified Party to the extent of any amounts (x) resulting from the gross negligence or willful misconduct of such Indemnified Party, or (y) constituting credit recourse for the failure of a Contract Debtor to pay a Pledged Contract, or (z) constituting net income or franchise taxes that are imposed by the Borrower, United States or franchise taxes or net income taxes that are imposed on such Indemnified Party by the Originator state or foreign jurisdiction under the laws of which such Indemnified Party is organized or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) political subdivision thereof. Any amounts subject to the indemnification provisions of this Section 9.1 8.01 shall be paid by the Borrower to the applicable related Indemnified Party within two (2) 10 Business Days following the Administrative Agent’s written demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 9 contracts
Samples: Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Credit Company, LLC)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 “Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this Agreement, excluding, however, Indemnified Amounts to the extent finally judicially determined by a court of competent jurisdiction to have been resulting from the gross negligence or willful misconduct on the part of any Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan included as part of the Collateral that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 8 contracts
Samples: Credit Agreement (Gladstone Capital Corp), Credit Agreement (Gladstone Capital Corp), Fifth Amended and Restated Credit Agreement (Gladstone Capital Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, Secured Parties and the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee Independent Member and each of their respective Affiliates assigns and officers, directors, employees, members employees and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 the “Indemnified Amounts”) awarded against, incurred by or asserted against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this AgreementAgreement or having an interest in the Collateral or in respect of any Loan included in the Collateral, excluding, however, any Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Party. If the Borrower has made any indemnity payment pursuant to this Section 10.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts then, the recipient shall repay to the Borrower an amount equal to the amount it has collected from others in respect of such Indemnified Amounts. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts (except to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Party) relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer Collateral Manager (or one on behalf of its Affiliatesthe Borrower) or any of their respective officers under or in connection with this AgreementAgreement or any other Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(ii) the failure of any Loan acquired on the Closing Date to be an Eligible Loan as of the Closing Date and the failure of any Loan acquired after the Closing Date to be an Eligible Loan on the related Funding Date;
(iii) the failure by the Borrower or the Servicer Collateral Manager (or one on behalf of its Affiliatesthe Borrower) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law Law, with respect to any Loan comprising a portion of the Collateral, Collateral or the nonconformity of any Loan, the Related Property Collateral with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent Collateral Agent, for the benefit of the Secured Parties, a first priority priority, perfected security interest in the Collateral, together with all Collections, free and clear of any Lien (other than Permitted Liens) whether existing at the time of any Advance or at any time thereafter;
(v) the failure to maintain, as of the close of business on each Business Day prior to the Termination Date, an amount of Advances Outstanding that is less than or equal to the Borrowing Base on such Business Day;
(vi) the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws Law with respect to any Collateral Collateral, whether at the time of any Advance or at any subsequent time and as required by the Transaction Documentstime;
(vivii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of with respect to any Transferred Loan that is, or is purported to be, an Eligible Loan Collateral (including, without limitation, (A) a defense based on the Loan Collateral not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(viiviii) any failure of the Borrower or the Servicer Collateral Manager (if on behalf of the Originator or one of its AffiliatesBorrower) to perform its duties or obligations in accordance with the provisions of this Agreement or any of the other Transaction Documents to which it is a party or any failure by the Originator, the Borrower or any Affiliate thereof the Collateral Manager (on behalf of the Borrower) to perform its respective duties under the Transferred Loansany Collateral;
(viiiix) any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Borrower to qualify to do business or file any notice or business activity report or any similar report;
(x) any action taken by the Borrower or the Collateral Manager (on behalf of the Borrower) in the enforcement or collection of any Collateral;
(xi) 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 merchandise the Underlying Assets or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(xxii) [reserved];
(xiii) any repayment by the Administrative Agent, any Managing Agent or a another Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a another Secured Party believes in good faith is required to be repaid;
(xixiv) except with respect to funds held in the Collection Account, the commingling of Collections on the Collateral at any time with other funds;
(xv) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or the security interest in respect of any Transferred Loan or the Related PropertyCollateral;
(xiixvi) any failure by the Borrower to give reasonably equivalent value to the Originator Seller or to the applicable third party transferor, in consideration for the transfer by the Originator Seller or such third party to the Borrower of any Transferred Loan or the Related Property item of Collateral or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, ;
(xvii) the use of the proceeds of any Advance in a manner other than as provided in this Agreement and the Sale Agreement; or
(xiiixviii) the failure of the Borrower, the Originator Borrower or any of their respective its agents or representatives to remit to the Servicer Collateral Manager (on behalf of the Borrower) or the Administrative Collateral Agent, Collections on the Collateral remitted to the Borrower Borrower, the Collateral Manager (on behalf of the Borrower) or any such agent or representative as provided in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsthis Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 10.1 shall be paid by the Borrower to the applicable Indemnified Party within two pursuant to Section 2.7 or 2.8, as applicable, on the Payment Date following such Person’s demand therefor (2if given at least five (5) Business Days following prior to such Payment Date, and, if not, on the Administrative Agent’s demand therefor.
(c) If for any reason next subsequent Payment Date), accompanied by a reasonably detailed description in writing of the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmlessrelated damage, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerationsrelated costs and expenses.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 6 contracts
Samples: Loan and Security Agreement (Crescent Capital BDC, Inc.), Loan and Security Agreement (Crescent Capital BDC, Inc.), Loan and Security Agreement (Crescent Capital BDC, Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that which any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agentindemnify, the Managing AgentsLender, the Backup Servicerits Affiliates, any Successor Servicersuccessors, the Collateral Custodian, any Secured Party or its assignee permitted transferees and each of their respective Affiliates assigns and all officers, directors, employeesshareholders, members controlling persons, employees and agents thereof of any of the foregoing (collectively, the each an “Indemnified PartiesParty”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party by any of them arising out of or as a result of this Agreement, the other Facility Documents, or any transaction contemplated hereby or thereby excluding, however, (a) Indemnified Amounts to the extent resulting a court of competent jurisdiction determines that they resulted from gross negligence negligence, bad faith or willful misconduct on the part of any such Indemnified Party. Without limiting , (b) in the foregoing, event that the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to Lender has assigned its rights or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one delegated its obligations in respect of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) and the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law Indemnified Amounts with respect to any Loan comprising a portion of such assignee exceed the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan Indemnified Amounts that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes would otherwise have been payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following Lender, the Administrative Agent’s demand therefor.
amount of such excess, (c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the lost profits or indirect, exemplary, punitive or consequential damages of any Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) any other amounts specifically identified herein as to which Borrower’s liability is expressly limited, but only to the extent of such express limitation. In any suit, proceeding or action brought by the Lender in connection with any Collateral for any sum owing thereunder, or to enforce any provisions of any Collateral, the Borrower will save, indemnify and hold the Lender harmless from and against all expense, loss or damage suffered by reason of any defense, set-off, counterclaim, recoupment or reduction or liability whatsoever of the account debtor or obligor thereunder, arising out of a breach by Borrower of any obligation thereunder or arising out of any other agreement, indebtedness or liability at any time owing to or in favor of such account debtor or obligor or its successors from the Borrower. The obligations Borrower also agrees to reimburse the Lender as and when billed by the Lender for all the Lender’s documented out-of-pocket costs and expenses incurred in connection with the enforcement or the preservation of the Lender’s rights under this Loan Agreement, the Note, any other Facility Document or any transaction contemplated hereby or thereby, including without limitation the reasonable fees and disbursements of its counsel. The Borrower hereby acknowledges that, notwithstanding the fact that the Note is secured by the Collateral, the obligation of the Borrower under this Section 9.1 shall survive the removal Note is a recourse obligation of the Administrative Agent or Borrower. Under no circumstances shall any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not Indemnified Party be interpreted to provide recourse liable to the Borrower against loss by reason of the bankruptcy for any lost profits or insolvency (indirect, exemplary, punitive or consequential damages. This Section 10.01 shall not apply with respect to Taxes other credit condition) ofthan any Taxes that represent losses, or default byclaims, an Obligor ondamages, etc. arising from any Transferred Loannon-Tax claim.
Appears in 6 contracts
Samples: Loan and Security Agreement (Mr. Cooper Group Inc.), Loan and Security Agreement (Mr. Cooper Group Inc.), Loan and Security Agreement (Mr. Cooper Group Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that which the Affected Parties, the Secured Parties, the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Backup Servicer, the Collateral Custodian or any such Person of their respective Affiliates may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Affected Parties, the Secured Parties, Administrative Agent, the Managing Lenders, the Lender Agents, the Collateral Agent, the Backup Servicer, any Successor the Account Bank, the Backup Servicer, the Collateral Custodian, any Secured Party or its assignee Custodian and each of their respective Affiliates and Affiliates, assigns, officers, directors, employees, members employees and agents thereof (collectivelyeach, the an “Indemnified Parties”), forthwith on demand, Party” for purposes of this Article IX) 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 “Indemnified Amounts”) ), awarded against or actually incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this AgreementAgreement or in respect of any of the Collateral Portfolio, excluding, however, Indemnified Amounts to the extent resulting solely from (a) gross negligence negligence, bad faith or willful misconduct on the part of any an Indemnified PartyParty as determined in a final decision by a court of competent jurisdiction or (b) Loan Assets which are uncollectible due to the Obligor’s financial inability to pay. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts relating to or resulting from:from any of the following (to the extent not resulting from the conditions set forth in (a) or (b) above):
(i) any Loan Asset treated as or represented by the Borrower to be an Eligible Loan that Asset which is not at the applicable time an Eligible LoanLoan Asset, or the purchase by any party or origination of any Loan Asset which violates Applicable Law;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (if Solar Senior Capital or one of its AffiliatesAffiliates is the Servicer) or any of their respective officers under or in connection with this AgreementAgreement or any Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (if Solar Senior Capital or one of its AffiliatesAffiliates is the Servicer) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion item of the CollateralCollateral Portfolio, or the nonconformity of any Loan, the Related Property item of Collateral Portfolio with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent Collateral Agent, for the benefit of the Secured Parties, a first priority perfected security interest in the CollateralCollateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or at any time thereafter;
(v) the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws Law with respect to any Loan Assets included in the Collateral Portfolio or the other Portfolio Assets related thereto, whether at the time of any Advance or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the an Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Asset included in the Collateral Portfolio (including, without limitation, (A) a defense based on such Loan Asset (or the Loan Agreement evidencing such Loan Asset) not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) any other claim resulting from the equitable subordination sale of the merchandise or services related to such Loan)Collateral Portfolio or the furnishing or failure to furnish such merchandise or services;
(vii) any failure of the Borrower or the Servicer (if the Originator Solar Senior Capital or one of its AffiliatesAffiliates is the Servicer) to perform its duties or obligations in accordance with the provisions of this Agreement the Transaction Documents to which it is a party or any failure by the OriginatorSolar Senior Capital, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loansany Collateral Portfolio;
(viii) any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Borrower or the Transferor to qualify to do business or file any notice or business activity report or any similar report;
(ix) any action taken by the Borrower or the Servicer in the enforcement or collection of the Collateral Portfolio which results in any claim, suit or action of any kind pertaining to the Collateral Portfolio or which reduces or impairs the rights of the Administrative Agent, Lender Agent or Lender with respect to any Loan Asset or the value of any such Loan Asset;
(x) 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 merchandise the Underlying Collateral or services that are the subject of any Transferred Loan or the Related PropertyCollateral Portfolio;
(ixxi) any claim, suit or action of any kind arising out of or in connection with Environmental Laws relating to the Borrower or the Collateral Portfolio, including any vicarious liability;
(xii) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including including, without limitation, sales, excise or personal property taxes Taxes payable in connection with the CollateralCollateral Portfolio;
(xxiii) any repayment by the Administrative Agent, any Managing Agent the Lender Agents, the Lenders or a Secured Party of any amount previously distributed in reduction payment of Advances Outstanding or payment of Interest Yield or Fees or any other amount due hereunder or under any Hedging Agreementhereunder, in each case which amount the Administrative Agent, such Managing Agent the Lender Agents, the Lenders or a Secured Party believes in good faith is required to be repaid;
(xixiv) the commingling by the Borrower or the Servicer of payments and collections required to be remitted to the Collection Account with other funds;
(xv) any investigation, litigation or proceeding related to this Agreement (or the Transaction Documents), or the use of proceeds of Advances or in respect of any Transferred Loan the Collateral Portfolio, or the Related Propertyadministration of the Loan Assets by the Borrower or the Servicer (unless such administration is carried out by the Backup Servicer in the capacity of the Servicer, if applicable);
(xiixvi) any failure by the Borrower to give reasonably equivalent value to the Originator Transferor in consideration for the transfer by the Originator Transferor to the Borrower of any Transferred Loan or the Related Property item of Collateral Portfolio or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, ;
(xvii) the use of the proceeds of any Advance in a manner other than as provided in this Agreement and the Transaction Documents; or
(xiiixviii) the any failure of the Borrower, the Originator Servicer or any of their respective agents or representatives to remit to the Servicer or the Administrative AgentCollection Account within two Business Days of receipt, Collections on payments and collections with respect to the Collateral Portfolio remitted to the Borrower Borrower, the Servicer or any such agent or representative (other than such a failure on the part of the Backup Servicer in accordance with the terms hereof or the commingling by the Borrower or any Affiliate capacity of any collectionsServicer, if applicable).
(b) Any amounts subject to the indemnification provisions of this Section 9.1 9.01 shall be paid by the Borrower to the Administrative Agent on behalf of the applicable Indemnified Party within two (2) five Business Days following receipt by the Borrower of the Administrative Agent’s written demand therefortherefor 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 9.01, shall submit to the 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 9.1 9.01 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmlessharmless in respect of any losses, claims, damages or liabilities, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such losslosses, claimclaims, damage damages or liability 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 Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Borrower shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.01(a).
(d) If the Borrower has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.01 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Borrower in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The obligations of the Borrower under this Section 9.1 9.01 shall survive the resignation or removal of the Administrative Agent Agent, the Lenders, the Lender Agents, the Servicer, the Collateral Agent, the Account Bank, the Backup Servicer or any Managing Agent the Collateral Custodian and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 6 contracts
Samples: Ninth Amendment to the Loan and Servicing Agreement (SLR Senior Investment Corp.), Loan and Servicing Agreement (Solar Senior Capital Ltd.), Loan and Servicing Agreement (Solar Senior Capital Ltd.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any the Secured Party or its assignee Parties, the Affected Parties and each of their respective Affiliates assigns and officers, directors, employees, members employees and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 the “Indemnified Amounts”) awarded against or incurred by, any by such Indemnified Party or and other non-monetary damages of any such Indemnified Party or any of them arising out of or as a result of this AgreementAgreement or the Existing A&R Loan and Security Agreement or having an interest in the Collateral or in respect of any Loan included in the Collateral, excluding, however, any Indemnified Amounts to the extent resulting from gross negligence negligence, bad faith or willful misconduct on the part of any Indemnified Party. If the Borrower has made any indemnity payment pursuant to this Section 10.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts then, the recipient shall repay to the Borrower an amount equal to the amount it has collected from others in respect of such indemnified amounts. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts (except to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party) relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Collateral Manager or any of their respective officers under or in connection with this AgreementAgreement or any other Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(ii) the failure of any Loan acquired on the Original Closing Date to be an Eligible Loan as of the Original Closing Date and the failure of any Loan acquired after the Original Closing Date to be an Eligible Loan on the related Funding Date;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) Collateral Manager to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law Law, with respect to any Loan comprising a portion of the Collateral, Collateral or the nonconformity of any Loan, the Related Property Collateral with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent Agent, as agent for the Secured Parties, a first priority priority, perfected security interest in Lien on the Collateral, together with all Collections, free and clear of any other Lien (other than Permitted Liens) whether existing at the time of any Advance at any time thereafter;
(v) the failure to maintain, as of the close of business on each Business Day prior to the Termination Date, an amount of Advances Outstanding that is less than or equal to the Borrowing Base on such Business Day;
(vi) the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws Law with respect to any Collateral Collateral, whether at the time of any Advance or at any subsequent time and as required time, if such failure or delay (i) was caused by the Transaction DocumentsBorrower or the Collateral Manager, (ii) could have been cured by either the Collateral Manager or the Borrower and such cure was not effected in a timely manner or (iii) resulted from a failure or delay by either the Borrower or the Collateral Manager to confirm satisfactory completion in a timely manner of any and all actions they requested in order to maintain compliance with the UCC or such other Applicable Law;
(vivii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of with respect to any Transferred Loan that is, or is purported to be, an Eligible Loan Collateral (including, without limitation, (A) a defense based on the Loan Collateral not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) any other claim resulting from the equitable subordination sale of the merchandise or services related to such Loan)Collateral or the furnishing or failure to furnish such merchandise or services;
(viiviii) the failure of the Collateral Custodian to remit any amounts held in the Collection Account pursuant to the instructions of the Collateral Manager or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof) whether by reason of the exercise of set-off rights or otherwise;
(ix) any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Borrower or the Servicer (if the Originator Collateral Manager to qualify to do business or one of its Affiliates) to perform its duties file any notice or obligations in accordance with the provisions of this Agreement business activity report or any failure similar report;
(x) any action taken by the Originator, the Borrower or the Collateral Manager in the enforcement or collection of any Affiliate thereof to perform its respective duties under the Transferred LoansCollateral;
(viiixi) 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 merchandise the Underlying Assets or services that are the subject of any Transferred Loan or the Related PropertyCollateral;
(ixxii) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(xxiii) any repayment by the Administrative Agent, any Managing Agent or a another Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a another Secured Party believes in good faith is required to be repaid;
(xixiv) except with respect to funds held in the Collection Account and the Unfunded Exposure Account, the commingling of Collections on the Collateral at any time with other funds;
(xv) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or the security interest in respect of any Transferred Loan or the Related PropertyCollateral;
(xiixvi) any failure by the Borrower to give reasonably equivalent value to the Originator applicable third party transferor, in consideration for the transfer by the Originator such third party to the Borrower of any Transferred Loan or the Related Property item of Collateral or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or;
(xiiixvii) the use of the proceeds of any Advance in a manner other than as provided in this Agreement;
(xviii) the failure of the Borrower, the Originator Borrower or any of their respective its agents or representatives to remit to the Servicer Collateral Manager or the Administrative Agent, Collections on the Collateral remitted to the Borrower Borrower, the Collateral Manager or any such agent or representative as provided in accordance with this Agreement; or
(xix) the terms hereof or failure of the commingling by the Borrower or any Affiliate of any collectionsCollateral Manager to satisfy its obligations under Section 10.2.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 10.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following pursuant to Section 2.7 or 2.8, as applicable, on the Administrative Agentlater of the next Payment Date and 30 days after receipt by the Borrower of such Person’s demand therefortherefor accompanied by a reasonably detailed description in writing of the related damage, loss, claim, liability and related costs and expenses.
(c) If for any reason the indemnification provided above in this Section 9.1 10.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that, the Borrower shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 10.1(a).
(d) The obligations of the Borrower under this Section 9.1 10.1 shall survive the resignation or removal of the Administrative Agent Agent, the Collateral Manager or any Managing Agent the Collateral Custodian and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 5 contracts
Samples: Loan and Security Agreement (New Mountain Finance Corp), Loan and Security Agreement (New Mountain Finance Corp), Loan and Security Agreement (New Mountain Finance Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that which the Administrative Agent, each Agent, each Lender or its assignee, the Backup Servicer, the Account Bank or any such Person of their respective Affiliates may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agentindemnify, the Managing Agentsprotect, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or defend and hold harmless each such entity (each in its assignee capacity as such and in its individual capacity) and each of their respective Affiliates and officers, directors, employees, members employees and agents thereof (each, an “Indemnified Party” and collectively, the “Indemnified Parties”), forthwith on demand, ) from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys’ fees fees, expenses and disbursements (all of collectively, the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them in connection with, arising out of or as a result of this AgreementAgreement or the other Basic Documents, excluding, however, Indemnified Amounts to the extent resulting from the gross negligence negligence, bad faith or willful misconduct on the part of any such Indemnified PartyParty (as determined by a court of competent jurisdiction). Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or Receivable represented by the Borrower to be an Eligible Loan that Receivable which is not at the applicable time time, an Eligible LoanReceivable;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one Servicer, any of its Affiliates) their respective Affiliates or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) any other Regional Management Entity to comply with any term, provision or covenant contained in this Agreement or any other Basic Document or a failure by the Borrower or any Regional Management Entity to comply with any term, provision or covenant contained in any agreement executed in connection with this AgreementAgreement or any other Basic Document, or with any Applicable Law with respect to any Loan comprising a portion of the CollateralContract or Receivable, or the nonconformity non-conformity of any Loan, the Related Property Contract with any such Applicable Law or and any failure by the Originator, the Borrower or any Affiliate thereof other Regional Management Entity to perform its respective duties under the Loans Contracts and Receivables included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a valid and enforceable first priority perfected security interest in any or all of the Collateral, except for Permitted Liens;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws Law with respect to any Collateral the Collateral, whether at the time of any Advance a Loan or at any subsequent time and as required by the Transaction Basic Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that Receivable comprising a portion of the Collateral which is, or is purported to be, an Eligible Loan Receivable (including, without limitation, (A) including a defense based on the Loan Receivable not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(vii) any failure of by the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred LoansAgreement;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related PropertyReceivable;
(ix) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances the Loans Outstanding or payment of Interest Interest, any obligation or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party entity believes in good faith is required to be repaid;
(xi) any litigation, proceeding or investigation (a) before any Governmental Authority (1) in respect of any Contract or Receivable, (2) relating to the use of the proceeds of the Loan or (3) related to this Agreement (A) that is not commenced by the Indemnified Party or (B) if so commenced, in which such Indemnified Party is not the prevailing party; provided, that no Indemnified Party shall be entitled to any indemnification for any item described in this clause resulting from such Indemnified Party’s gross negligence or willful misconduct or (b) relating to or arising from the Basic Documents, the transactions contemplated hereby and thereby, the use of proceeds of the Loans by the Borrower or any other investigation, litigation or proceeding related relating to this Agreement the Borrower or the use of proceeds of Advances or Servicer in respect which any Indemnified Party becomes involved as a result of any Transferred Loan or of the Related Propertytransactions contemplated by the Basic Documents;
(xii) the use of the proceeds of any Loan;
(xiii) any failure by the Borrower to give reasonably equivalent value to the Originator Regional Management in consideration for the transfer by the Originator Regional Management to the Borrower of any Transferred Loan or of the Related Property Receivables and the related Collateral or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, including any provision of the Bankruptcy Code, orany Insolvency Law;
(xiiixiv) the failure of the Borrower, the Originator or any of their respective agents or representatives Borrower to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower of any Collections with other funds;
(xv) all reasonable and documented fees, costs and expense (including reasonable legal fees and expenses) incurred by any Lender, their respective Credit Providers or the Administrative Agent in connection with entering into or giving or withholding any amendments or supplements or waivers or consents (including review and analysis thereof) with respect to the Basic Documents or any Affiliate of any collections.other document or instrument delivered pursuant hereto or thereto (whether or not the same is finally agreed to) if the same is requested by the Borrower or the Servicer, or is required or necessary under the Basic Documents; or
(bxvi) any and all civil penalties or fines assessed by OFAC against, and all reasonable costs and expenses (including attorneys’ fees and disbursements) incurred in connection with the defense thereof by any Indemnified Party as a result of funding all or any portion of the Loan or the acceptance of payments or of Collateral due under the Basic Documents. Any amounts subject to the indemnification provisions of this Section 9.1 11.01 payable by the Borrower shall be paid by the Borrower solely pursuant to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to 2.08 in the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loanorder and priority set forth therein.
Appears in 5 contracts
Samples: Credit Agreement and Account Control Agreement (Regional Management Corp.), Credit Agreement (Regional Management Corp.), Credit Agreement (Regional Management Corp.)
Indemnities by the Borrower. (a) Without limiting any other rights that which any such Person may have hereunder or under Applicable Lawapplicable law, the Borrower hereby agrees to indemnify the Administrative Agentindemnify, the Managing AgentsLender, the Backup Servicerits Affiliates, any Successor Servicersuccessors, the Collateral Custodian, any Secured Party or its assignee permitted transferees and each of their respective Affiliates assigns and all officers, directors, employeesshareholders, members controlling persons, employees and agents thereof of any of the foregoing (collectively, the each an “Indemnified PartiesParty”), forthwith on demand, 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 “Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party by any of them arising out of or as a result of this Agreement, the other Facility Documents, the Freddie Mac Acknowledgment Agreement or any transaction contemplated hereby or thereby excluding, however, (a) Indemnified Amounts to the extent resulting a court of competent jurisdiction determines that they resulted from gross negligence negligence, bad faith or willful misconduct on the part of any such Indemnified Party. Without limiting , (b) in the foregoing, event that the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to Lender has assigned its rights or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one delegated its obligations in respect of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) and the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law Indemnified Amounts with respect to any Loan comprising a portion of such assignee exceed the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan Indemnified Amounts that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes would otherwise have been payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following Lender, the Administrative Agent’s demand therefor.
amount of such excess, (c) If for taxes expressly excluded from Taxes in Section 3.02(a) above (other than any such Taxes that are incremental and arise solely by reason of a breach by the indemnification provided above in Borrower of its obligations under this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmlessAgreement), then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) any lost profits or indirect, exemplary, punitive or consequential damages of any Indemnified Party. In any suit, proceeding or action brought by the Lender in connection with any Collateral for any sum owing thereunder, or to enforce any provisions of any Collateral, the Borrower will save, indemnify and hold the Lender harmless from and against all expense, loss or damage suffered by reason of any defense, set-off, counterclaim, recoupment or reduction or liability whatsoever of the account debtor or obligor thereunder, arising out of a breach by the Borrower of any obligation thereunder or arising out of any other agreement, indebtedness or liability at any time owing to or in favor of such account debtor or obligor or its successors from the Borrower. The obligations Borrower also agrees to reimburse the Lender as and when billed by the Lender for all the Lender’s reasonable and documented out-of-pocket costs and expenses incurred in connection with the enforcement or the preservation of the Lender’s rights under this Agreement, the Note, any other Facility Document, the Freddie Mac Acknowledgment Agreement or any transaction contemplated hereby or thereby, including without limitation the fees and disbursements of its counsel. The Borrower hereby acknowledges that, notwithstanding the fact that the Note is secured by the Collateral, the obligation of the Borrower under this Section 9.1 shall survive the removal Note is a recourse obligation of the Administrative Agent or Borrower. Under no circumstances shall any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not Indemnified Party be interpreted to provide recourse liable to the Borrower against loss by reason of the bankruptcy for any lost profits or insolvency (indirect, exemplary, punitive or other credit condition) of, or default by, an Obligor on, any Transferred Loanconsequential damages.
Appears in 5 contracts
Samples: Loan and Security Agreement (Mr. Cooper Group Inc.), Loan and Security Agreement (Mr. Cooper Group Inc.), Loan and Security Agreement (Mr. Cooper Group Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that which any such Person Affected Party may have hereunder or under Applicable Lawapplicable law (including the right to recover damages for breach of contract), the Borrower hereby agrees to indemnify each Lender, the Administrative Agent, each Managing Agent, the Managing AgentsPaying Agent, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee Custodian and each of Liquidity Provider, and their respective Affiliates and officers, directors, employees, members officers and agents thereof employees (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable external attorneys’ fees and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) ), awarded against or incurred by, any by such Indemnified Party to the extent relating to or other non-monetary damages of any such Indemnified Party any of them arising out of from or as a result of this Agreement, excluding, however, Indemnified Amounts Agreement or the funding or maintenance of Loans made by a Lender hereunder subject to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Partyproviso set forth below. Without limiting the foregoinggenerality of the foregoing indemnification, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts to the extent relating to or resulting fromfrom any of the following:
(i) the failure of any Pledged Timeshare Loan treated as or represented by the Borrower to be an Eligible Timeshare Loan that is not hereunder to be an “Eligible Timeshare Loan” at the applicable time an Eligible Loanof such representation;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Borrower under this Agreement or any of their respective officers under or in connection with this Agreement, other Facility Document to which it is a party which shall have been false or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement, the Sale and Contribution Agreement or any agreement executed in connection with this Agreement, other Facility Document to which it is party or with any Applicable Law applicable law, rule or regulation with respect to any Pledged Timeshare Loan comprising a portion of the or other Collateral, or the nonconformity of any Loan, the Related Property Pledged Timeshare Loan or other Collateral with any such Applicable Law applicable law, rule or regulation;
(iv) the failure to pay when due any failure Taxes, including sales, excise or personal property Taxes payable by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of in connection with the Collateral;
(ivv) the payment by such Indemnified Party of Indemnified Taxes, including any Indemnified 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 Borrower’s actions or failure to act in breach of this Agreement;
(vi) the failure to vest and maintain vested in the Administrative Agent Agent, on behalf of the Secured Parties, a first priority perfected security interest in the Collateral, free and clear of any Adverse Claim, whether existing at the time such Collateral arose or at any time thereafter;
(vvii) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the applicable UCC of any applicable jurisdiction or other Applicable Laws applicable laws naming the Borrower as “Debtor” with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction DocumentsCollateral;
(viviii) any dispute, claim, offset or defense (other than the discharge in bankruptcy as a result of the bankruptcy or insolvency of the related Obligor) of the a Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Pledged Timeshare Loan (including, without limitation, (A) including a defense based on the such Pledged Timeshare Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due commingling of Collections with any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateralother funds;
(x) any repayment failure by the Administrative Agent, any Managing Agent or a Secured Party Borrower to give reasonably equivalent value to the Seller in consideration for the transfer by the Seller to the Borrower of any amount previously distributed in reduction of Advances Outstanding or payment of Interest Pledged Timeshare Loan, or any other amount due hereunder or attempt by any Person to void any such transfer under any Hedging Agreementstatutory provision or common law or equitable action, in each case which amount including any provision of the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaidBankruptcy Code;
(xi) (A) the failure of the Clearing Account Bank to remit any Collections held in the Clearing Account to the Collection Account as provided in the Clearing Account Control Agreement or any Collections held in the Unidentified Receipts Account to the Clearing Account, whether by reason of the exercise of setoff rights or otherwise, or (B) any claim by the Clearing Account Bank for indemnification by the Administrative Agent pursuant to the terms of the Clearing Account Control Agreement;
(xii) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances Loans made pursuant to this Agreement or any other Facility Document delivered hereunder or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, orCollateral;
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling grant by the Borrower or of a security interest in any Affiliate Pledged Timeshare Loan in violation of any collections.
applicable law, rule or regulation; provided, however, that the Borrower shall not be required to indemnify any Indemnified Party to the extent of any amounts (bx) resulting from the gross negligence or willful misconduct of such Indemnified Party, or (y) constituting credit recourse for the failure of a Obligor to pay a Pledged Timeshare Loan, or (z) constituting Excluded Taxes. Any amounts subject to the indemnification provisions of this Section 9.1 8.01 shall be paid by the Borrower to the applicable related Indemnified Party within two ten (210) Business Days following the Administrative Agent’s written demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 5 contracts
Samples: Receivables Loan Agreement, Sale and Contribution Agreement, Servicing Agreement (Hilton Grand Vacations Inc.), Receivables Loan Agreement and Sale and Contribution Agreement (Hilton Grand Vacations Inc.), Receivables Loan Agreement and Sale and Contribution Agreement (Hilton Grand Vacations Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Deal Agent, the Managing Agents, the Backup Servicer, any the Collateral Agent, the Successor Servicer, the Collateral CustodianLiquidity Agents, any the Secured Party or its assignee Parties, and each of their respective Affiliates and officers, directors, employees, members employees and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 the “Indemnified Amounts”) awarded against or incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this AgreementAgreement or the financing or maintenance of the Capital or in respect of any Loan or any Contract, excluding, however, (a) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party or (b) Indemnified Amounts that have the effect of recourse for non-payment of the Loans due to credit problems of the Obligors (except as otherwise specifically provided in this Agreement). If the Borrower has made any indemnity payment pursuant to this Section 11.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified PartyAmounts then, the recipient shall repay to the Borrower an amount equal to the amount it has collected from others in respect of such indemnified amounts. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts relating to or resulting from:
(i) any Contract or Loan treated as or represented by the Borrower Credit Acceptance to be an Eligible Dealer Loan Contract or Eligible Loan that is not at the applicable time an Eligible Dealer Loan Contract or Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Borrower or any of their respective its officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law Law, with respect to any Loan comprising a portion of the CollateralLoan, Dealer Agreement, Purchase Agreement, any Contract, or the nonconformity of any Loan, the Related Property Dealer Agreement, Purchase Agreement or Contract with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Collateral Agent for the Secured Parties a first priority perfected security interest in the Collateral, together with all Collections, free and clear of any Lien whether existing at the time of any Funding or at any time thereafter;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral the Collateral, whether at the time of any Advance the Funding or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Contract (including, without limitation, (A) a defense based on the such Loan or Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(xix) any repayment by the Administrative Deal Agent, any Managing Liquidity Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding Capital or payment of Interest Yield or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Deal Agent, such Managing any Liquidity Agent or a Secured Party believes in good faith is required to be repaid;
(x) the commingling of Collections of the Collateral at any time with other funds;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances the Funding or the funding of or maintenance of Capital or in respect of any Transferred Loan or the Related PropertyContract;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of the Loans, Related Security or any Transferred Loan or the Related Property portion thereof or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or;
(xiii) the use of the Proceeds of the Funding in a manner other than as provided in this Agreement and the Contribution Agreement; or
(xiv) the failure of the Borrower, the Originator Borrower or any of their respective its agents or representatives to remit to the Servicer or Servicer, the Administrative Deal Agent, the Collateral Agent or any other Secured Party, any Collections on of the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsrepresentative.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 11.1 shall be paid by the Borrower to the applicable relevant Indemnified Party within two (2) Business Days following on the Administrative Agent’s demand therefornext Payment Date.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 11.1 shall survive the resignation or removal of the Administrative Agent Deal Agent, the Collateral Agent, the Successor Servicer, any Liquidity Agent, any Lender or any Managing Agent and the Backup Servicer or the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 4 contracts
Samples: Loan and Security Agreement (Credit Acceptance Corp), Loan and Security Agreement (Credit Acceptance Corp), Loan and Security Agreement (Credit Acceptance Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Lawapplicable law, the Borrower hereby agrees to indemnify and hold harmless the Administrative Administrator, each Group Agent, the Managing Agentseach Liquidity Provider, each Program Support Provider, each Lender, each LC Participant, the Backup Servicer, LC Bank (and any Successor Servicer, of the Collateral Custodian, any Secured Party or its assignee LC Bank’s Affiliates) and each of their respective Affiliates and officers, directors, employees, members agents and agents thereof employees (collectively, the each an “Indemnified PartiesParty”), forthwith on demand, ) from and against any and all damages, losses, claims, liabilities and related liabilities, penalties, costs and expenses, expenses (including reasonable and documented attorneys’ fees and disbursements court costs) (all of the foregoing being collectively referred to as collectively, the “Indemnified Amounts”) awarded against at any time imposed on or incurred by, by any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them to the extent arising out of or otherwise relating to any Transaction Document or the issuance of any Letter of Credit, the transactions contemplated thereby or the funding or maintenance of the Loan, or any action taken or omitted by any of the Indemnified Parties (including any action taken by the Administrator as a result attorney in fact for the Borrower or any Originator hereunder or under any other Transaction Document), whether arising by reason of this Agreementthe acts to be performed by the Borrower hereunder or otherwise, excluding, however, excluding only Indemnified Amounts to the extent resulting (a) a final judgment of a court of competent jurisdiction holds such Indemnified Amounts resulted from gross negligence or willful misconduct on of the part Indemnified Party seeking indemnification, (b) due to the credit risk or financial inability to pay of the Obligor and for which reimbursement would constitute recourse to any Originator, CB, the Borrower or the Servicer for uncollectible Receivables, (c) such Indemnified Amounts constitute Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim, (d) the same have been fully and finally paid in cash to such Indemnified Party pursuant to any other provision of this Agreement or any other Transaction Document or (e) the same are expressly excluded by any provision of this Agreement or any other Transaction Document; provided, however, that nothing contained in this sentence shall limit the liability of the Borrower or the Servicer or limit the recourse of any Indemnified PartyParty to the Borrower or the Servicer for any amounts otherwise specifically provided to be paid by the Borrower or the Servicer hereunder. Without limiting the foregoingforegoing indemnification, but subject to the limitations set forth in clauses (a), (b), (c), (d) and (e) of the previous sentence, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts (including losses in respect of uncollectible Receivables, regardless, for purposes of these specific matters, of whether reimbursement therefor would constitute recourse to the Borrower or its Servicer) to the extent relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer Borrower (or one any employee or agent of its Affiliatesthe Borrower) or any of their respective officers under or in connection with this Agreement, any Information Package or any other information or report delivered by or on behalf of the Borrower pursuant hereto, which shall have been false or incorrect in any material respect when made or deemed made made;
(ii) the failure by the Borrower to comply with any applicable law, rule or deliveredregulation related to any Receivable, or the nonconformity of any Receivable with any such applicable law, rule or regulation;
(iii) the failure by of the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent Administrator, for the benefit of the Lenders, a first priority perfected security interest in the CollateralPool Assets free and clear of any Adverse Claim;
(iv) any commingling of funds to which the Administrator, any Group Agent or any Lender is entitled hereunder with any other funds of the Borrower or their Affiliates;
(v) any failure of a Lock Box Bank to comply with the failure to file, or any delay in filing, financing statements or other similar instruments or documents under terms of the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction DocumentsLock Box Agreement;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that isReceivable, or is purported any other claim resulting from the sale or lease of goods or the rendering of services related to be, an Eligible Loan (including, without limitation, (A) a such Receivable or the furnishing or failure to furnish any such goods or services or other similar claim or defense based on not arising from the Loan not being a legal, valid and binding obligation credit risk or financial inability of such any Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan)to pay undisputed indebtedness;
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof other Transaction Document to perform its respective duties under the Transferred Loanswhich it is a party;
(viii) any action taken by the Administrator as attorney in fact for the Borrower or any Originator pursuant to this Agreement or any other Transaction Document;
(ix) any environmental liability claim, products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort sort, arising out of or in connection with merchandise any Receivable or services that are any other suit, claim or action of whatever sort relating to any of the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;Transaction Documents; or
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party issuance of any amount previously distributed in reduction Letter of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsCredit.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 4 contracts
Samples: Receivables Financing Agreement, Receivables Financing Agreement, Receivables Financing Agreement (Cincinnati Bell Inc)
Indemnities by the Borrower. (a) Without limiting any other rights that which the Administrative Agent, the Managing Agents, the Lenders, the Liquidity Providers or any such Person of their respective Affiliates may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the each Managing AgentsAgent, the Backup Servicereach Lender, any Successor Servicereach Liquidity Provider, the Collateral Custodianeach of their respective Affiliates, any Secured Party or its assignee and each of their respective Affiliates and directors, officers, directors, employees, members agents and agents thereof attorneys (collectively, all of the foregoing being individually referred to as an “Indemnified Party” and being collectively referred to as “Indemnified Parties”), forthwith on demand, ) from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (excluding Taxes for which provision is made in Section 2.12) (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or actually incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party by any of them arising out of or as a result of this Agreement, excluding, however, Indemnified Amounts to the extent resulting from gross negligence this Agreement or willful misconduct on the part other Facility Documents or the use of proceeds of Advances or remittances or the security interests in the Collateral or in respect of any Indemnified PartyReceivable, Related Security or Contract. Without limiting or being limited by the foregoing, the Borrower shall pay on demand to each Indemnified Party any and all amounts necessary to indemnify the such Indemnified Parties for Party from and against any and all Indemnified Amounts relating to or resulting fromfrom any of the following:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Borrower or any of their respective its officers under or in connection with this AgreementAgreement or any other Facility Document, which shall have been false false, incorrect or incorrect misleading in any material respect when made or deemed made or delivered;
(iiiii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement Agreement, any of the other Facility Documents, or any agreement executed in connection with this AgreementContract, or with any Applicable Law with respect to any Loan comprising a portion of Receivable, the Collateralrelated Contract or the Related Security, or the nonconformity of any LoanReceivable, the related Contract or the Related Property Security with any such Applicable Law or any Law;
(iii) the failure by to grant to the OriginatorAdministrative Agent, for the Borrower or any Affiliate thereof to perform its respective duties benefit of itself and the Secured Parties, a valid and perfected first priority security interest under the Loans included as a part Article 9 of the UCC, in and to the Receivables which are, or are purported to be, Collateral, together with all Collections and Related Security, in each case free and clear of any Lien whether existing at the time of the pledge of any such Receivable or at any time thereafter;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws Law with respect to any Collateral Receivables, whether at the time of any Advance Closing Date or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(viiv) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower other Facility Documents or any Affiliate thereof to perform its respective duties under the Transferred LoansContracts;
(viiivi) 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 merchandise or services that which are the subject of any Transferred Loan Receivable or the Related PropertyContract;
(ixvii) any set-off by any Collection Account Bank or any Concentration Account Bank against Collections;
(viii) the failure by Borrower to pay when due any Taxes for taxes which are the Borrower is liableBorrower’s responsibility, including without limitation, sales, excise or personal property taxes payable in connection with the CollateralReceivables or the contribution or purchase thereof;
(xix) any repayment by the Administrative Agent, any Managing Agent or a Secured any other Indemnified Party of any amount previously distributed in reduction of Advances Outstanding Revolving Principal Balance or payment of Interest or any other amount due hereunder or under any Hedging Agreementhereunder, in each case which amount the Administrative Agent, such Managing Agent or a Secured such Indemnified Party believes in good faith is required to be repaid;
(x) the commingling of Collections of Receivables at any time with other funds;
(xi) any investigation, litigation or proceeding related to this Agreement or the Borrower’s use of proceeds of Advances or the pledge of an interest in the Collateral generally or in respect of any Transferred Loan Receivable, Related Security or Contract (including in connection with the Related Propertypreparation of a defense or appearing as a third party witness in connection therewith and regardless of whether such investigation, litigation or proceeding is brought by the Borrower, an Indemnified Party or any other Person or an Indemnified Party is otherwise a party thereto);
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator Transferor in consideration for the transfer by the Originator Transferor to the Borrower of any Transferred Loan Receivables or the Related Property Security, or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, including any provision of the Bankruptcy Code, orLaw;
(xiii) any failure by the failure Buyer to give reasonably equivalent value to any Originator in consideration for the transfer by such Originator to the Buyer of any Receivables or Related Security, or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including any provision of the Borrower, Bankruptcy Law; or
(xiv) the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate inclusion as an Eligible Receivable of any collectionsReceivable any portion of the Expected Net Value of which represents sales taxes.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 8.01 shall be paid by the Borrower to the applicable Indemnified Party Administrative Agent within two (2) 10 Business Days following the Administrative Agent’s demand therefor.
(c) If for . Notwithstanding any reason the indemnification provided above in other provision of this Section 9.1 is unavailable Agreement to the contrary, the Borrower shall not indemnify any Indemnified Party for or is insufficient with respect to hold an any Indemnified Party harmless, then the Borrower, shall contribute Amounts (i) that would constitute recourse for uncollectible Receivables due to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency of the related Obligor or (ii) that arise solely from such Indemnified Party’s gross negligence, bad faith or other credit condition) of, or default by, an Obligor on, any Transferred Loanwillful misconduct as determined in a final non-appealable judgment of a court of competent jurisdiction.
Appears in 4 contracts
Samples: Omnibus Amendment (Community Health Systems Inc), Omnibus Amendment (Community Health Systems Inc), Omnibus Amendment (Community Health Systems Inc)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person the Administrative Agent, the Credit Parties, the Affected Persons and their respective assigns, officers, directors, agents and employees (each, an “Indemnified Party”) may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured each Indemnified Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, losses and liabilities and related costs and expenses, (including reasonable attorneys’ fees and disbursements Attorney Costs) (all of the foregoing being collectively referred to as “Borrower Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result resulting from this Agreement or any other Transaction Document or the use of this Agreement, proceeds of the Credit Extensions or the security interest in respect of any Pool Receivable or any other Collateral; excluding, however, (x) Borrower Indemnified Amounts (i) to the extent resulting a final judgment of a court of competent jurisdiction holds that such Borrower Indemnified Amounts resulted primarily from the gross negligence or willful misconduct on by the part Indemnified Party seeking indemnification and (ii) to the extent such Borrower Indemnified Amounts arise due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Indemnified PartyOriginator or the Servicer for uncollectible Receivables and (y) Taxes that are covered by Section 5.03. Without limiting or being limited by the foregoing, the Borrower shall pay on written demand (which demand shall be accompanied by documentation of the Borrower Indemnified Amounts in reasonable detail) (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 4.01), to each Indemnified Party any and all amounts necessary to indemnify the such Indemnified Parties for Party from and against any and all Borrower Indemnified Amounts relating to or resulting from:from any of the following (but excluding Borrower Indemnified Amounts and Taxes described in clauses (x) and (y) above):
(i) any Loan treated as or represented by Pool Receivable which the Borrower to be or the Servicer includes as an Eligible Loan that Receivable as part of the Net Receivables Pool Balance but which is not at the applicable time an Eligible LoanReceivable at such time;
(ii) reliance on any representation written representation, warranty or warranty statement made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their its respective officers officers) under or in connection with this Agreement, any of the other Transaction Documents, any Information Package or any other written information or report (other than projections, forward-looking statements and information of a general economic or industry nature) delivered by or on behalf of the Borrower pursuant hereto which shall have been false untrue or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, Pool Receivable or the nonconformity related Contract; or the failure of any Loan, Pool Receivable or the Related Property with related Contract to conform to any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in all or any portion of the Collateral, in each case free and clear of any Adverse Claim (other than Permitted Liens) or any Person other than an Indemnified Party having any enforceable ownership interest or perfected Lien in all or any portion of the Collateral;
(v) the failure to filehave filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable and the other Collateral and Collections in respect thereof, whether at the time of any Advance Credit Extension or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset claim or defense (other than the any reduction, revision or discharge in bankruptcy of the Obligorbankruptcy) of the an Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Pool Receivable (including, without limitation, (A) a defense based on such Pool Receivable or the Loan related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) any other claim resulting from or relating to collection activities with respect to such Pool Receivable, or the equitable subordination sale of goods or the rendering of services related to such Loan)Pool Receivable or the furnishing or failure to furnish any such goods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform any of its duties or obligations in accordance with the provisions hereof and of this Agreement each other Transaction Document related to Pool Receivables or any failure by to timely and fully comply with the Originator, the Borrower or any Affiliate thereof Credit and Collection Policy in regard to perform its respective duties under the Transferred Loanseach Pool Receivable;
(viii) any products liability claim or personal injury or property damage suit liability, environmental or other similar or related claim or action of whatever sort arising out of or in connection with merchandise any Pool Receivable or other merchandise, goods or services that which are the subject of or related to any Transferred Loan or the Related PropertyPool Receivable;
(ix) the failure by Borrower to pay when due commingling of Collections of Pool Receivables at any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection time with the Collateralother funds;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding (actual or threatened) brought by a Person other than an Indemnified Party related to this Agreement or any other Transaction Document or the use of proceeds of Advances any Credit Extensions or in respect of any Transferred Loan Pool Receivable or other Collateral or any related Contract;
(xi) any failure of the Related PropertyBorrower to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(xii) any failure by the Borrower setoff with respect to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, orPool Receivable;
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or claim brought by any such agent or representative in accordance with the terms hereof or the commingling Person other than an Indemnified Party arising from any activity by the Borrower or any the Servicer (if an Affiliate of the Borrower) in servicing, administering or collecting any collectionsPool Receivable;
(xiv) any failure of a Collection Account Bank to comply with the terms of the applicable Account Control Agreement or any amounts payable by the Administrative Agent to a Collection Account Bank under any Account Control Agreement, or the termination of any Account Control Agreement by a Collection Account Bank, or any amounts payable by the Administrative Agent to a Collection Account Bank pursuant to the applicable Account Control Agreement;
(xv) any action taken by the Administrative Agent as attorney-in-fact for the Borrower, any Originator or the Servicer pursuant to this Agreement or any other Transaction Document;
(xvi) the use of proceeds of any Credit Extension;
(xvii) any reduction in Capital as a result of the distribution of Collections if all or a portion of such distributions shall thereafter be rescinded or otherwise must be returned for any reason; or
(xviii) the failure to provide each Obligor with an invoice or other statements evidencing amounts owed under each applicable Pool Receivable.
(b) Any amounts subject Notwithstanding anything to the contrary in this Agreement, solely for purposes of the Borrower’s indemnification provisions obligations in clauses (ii), (iii), (vii) and (xi) of this Section 9.1 Article XIII, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be paid by the Borrower deemed to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand thereforbe not so qualified.
(c) If for any reason the foregoing indemnification provided above in this Section 9.1 is unavailable to the any Indemnified Party or is insufficient to hold an Indemnified Party it harmless, then the Borrower, Borrower shall contribute to such Indemnified Party the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by economic interests of the Borrower on the one hand and such Indemnified Party on the one hand and the Borrower, on the other hand but also in the matters contemplated by this Agreement as well as the relative fault of the Borrower and such Indemnified Party as well as with respect to such loss, claim, damage or liability and any other relevant equitable considerations.
(d) . The reimbursement, indemnity and contribution obligations of the Borrower under this Section 9.1 shall be in addition to any liability which the Borrower may otherwise have, shall extend upon the same terms and conditions to each Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Borrower and the Indemnified Parties.
(d) Any indemnification or contribution under this Section shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 4 contracts
Samples: Receivables Financing Agreement (DCP Midstream, LP), Receivables Financing Agreement (DCP Midstream, LP), Receivables Financing Agreement (DCP Midstream, LP)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person the Administrative Agent, the Credit Parties, the Affected Persons and their respective assigns, officers, directors, agents and employees (each, a “Borrower Indemnified Party”) may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured each Borrower Indemnified Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, losses and liabilities and related costs and expenses, (including reasonable attorneys’ fees and disbursements Attorney Costs) (all of the foregoing being collectively referred to as “Borrower Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result resulting from this Agreement or any other Transaction Document or the use of this Agreement, proceeds of the Credit Extensions or the security interest in respect of any Pool Receivable or any other Collateral; excluding, however, (a) any portion of Borrower Indemnified Amounts to the extent resulting a final non-appealable judgment of a court of competent jurisdiction holds that such portion of such Borrower Indemnified Amounts resulted from the bad faith, gross negligence or willful misconduct on by the part of Borrower Indemnified Party seeking indemnification and (b) Taxes other than as described in clause (xiv) below or Taxes that represent losses, claims or damages arising from any Indemnified Partynon-Tax claim. Without limiting or being limited by the foregoing, the Borrower shall pay on demand (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 4.01), to each Borrower Indemnified Party any and all amounts necessary to indemnify the such Borrower Indemnified Parties for Party from and against any and all Borrower Indemnified Amounts relating to or resulting from:from any of the following (but excluding Borrower Indemnified Amounts and Taxes described in clause (b) above):
(i) any Loan treated as or represented by Pool Receivable which the Borrower to be or the Servicer includes as an Eligible Loan that Receivable as part of the Net Receivables Pool Balance but which is not at the applicable time an Eligible LoanReceivable at such time;
(ii) reliance on any representation representation, warranty or warranty statement made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their its respective officers officers) under or in connection with this Agreement, any of the other Transaction Documents, any Monthly Report, any Interim Report or any other information or report delivered by or on behalf of the Borrower pursuant hereto which shall have been false untrue or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, Pool Receivable or the nonconformity related Contract; or the failure of any Loan, Pool Receivable or the Related Property with related Contract to conform to any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in all or any portion of the Collateral, in each case free and clear of any Lien;
(v) the failure to filehave filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable and the other Collateral and Collections in respect thereof, whether at the time of any Advance Credit Extension or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset claim or defense (other than the discharge in bankruptcy of the Obligorbankruptcy) of the an Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Pool Receivable (including, without limitation, (A) a defense based on such Pool Receivable or the Loan related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) the equitable subordination of any other claim resulting from or relating to collection activities with respect to such Loan)Pool Receivable;
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform any of its duties or obligations in accordance with the provisions hereof and of this Agreement each other Transaction Document related to Pool Receivables or any failure by to timely and fully comply with the Originator, the Borrower or any Affiliate thereof Credit and Collection Policy in regard to perform its respective duties under the Transferred Loanseach Pool Receivable;
(viii) any products liability claim or personal injury or property damage suit liability, environmental or other similar or related claim or action of whatever sort arising out of or in connection with merchandise any Pool Receivable or other merchandise, goods or services that which are the subject of or related to any Transferred Loan or the Related PropertyPool Receivable;
(ix) the commingling of Collections of Pool Receivables at any time with other funds;
(x) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or the use of proceeds of any Credit Extensions or in respect of any Pool Receivable or other Collateral or any related Contract;
(xi) any failure of the Borrower to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(xii) any setoff with respect to any Pool Receivable;
(xiii) any claim brought by any Person other than a Borrower Indemnified Party arising from any activity by the Borrower or any Affiliate of the Borrower in servicing, administering or collecting any Pool Receivable;
(xiv) the failure by the Borrower to pay when due any Taxes for which the Borrower is liabletaxes, including including, without limitation, sales, excise or personal property taxes payable in connection with the Collateraltaxes;
(xxv) any repayment failure of a Collection Account Bank to comply with the terms of the applicable Account Control Agreement, the termination by a Collection Account Bank of any Account Control Agreement or any amounts (including in respect of an indemnity) payable by the Administrative AgentAgent to a Collection Account Bank under any Account Control Agreement;
(xvi) [reserved];
(xvii) any dispute, any Managing Agent claim, offset or a Secured Party defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any amount previously distributed Pool Receivable (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in reduction of Advances Outstanding or payment of Interest accordance with its terms), or any other amount due hereunder or under any Hedging Agreement, claim in each case which amount resulting from the Administrative Agent, sale of goods or the rendering of services related to such Managing Agent Pool Receivable or a Secured Party believes in good faith is required the furnishing or failure to be repaidfurnish any such goods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(xixviii) any investigationaction taken by the Administrative Agent as attorney-in-fact for the Borrower, litigation any Originator or proceeding related the Servicer pursuant to this Agreement or any other Transaction Document;
(xix) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(xx) the use of proceeds of Advances any Credit Extension or in respect the usage of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower Letter of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, Credit; or
(xiiixxi) the failure any reduction in Capital as a result of the Borrower, the Originator distribution of Collections if all or a portion of such distributions shall thereafter be rescinded or otherwise must be returned for any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsreason.
(b) Any amounts subject Notwithstanding anything to the contrary in this Agreement, solely for purposes of the Borrower’s indemnification provisions obligations in clauses (ii), (iii), (vii) and (xi) of this Section 9.1 Article XII, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be paid by the Borrower deemed to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand thereforbe not so qualified.
(c) If for any reason the foregoing indemnification provided above in this Section 9.1 is unavailable (other than pursuant to the exclusions contained in Section 12.01(a)) to any Borrower Indemnified Party or is insufficient to hold an Indemnified Party it harmless, then the Borrower, Borrower shall contribute to such Borrower Indemnified Party the amount paid or payable by such Borrower Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party economic interests of the Borrower and its Affiliates on the one hand and the Borrower, such Borrower Indemnified Party on the other hand but also in the matters contemplated by this Agreement as well as the relative fault of the Borrower and its Affiliates and such Borrower Indemnified Party as well as with respect to such loss, claim, damage or liability and any other relevant equitable considerations.
(d) . The reimbursement, indemnity and contribution obligations of the Borrower under this Section 9.1 shall be in addition to (but without duplication of) any liability which the Borrower may otherwise have, shall extend upon the same terms and conditions to each Borrower Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Borrower and the Borrower Indemnified Parties.
(d) Any indemnification or contribution under this Section shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 4 contracts
Samples: Receivables Financing Agreement (BrightView Holdings, Inc.), Receivables Financing Agreement (BrightView Holdings, Inc.), Receivables Financing Agreement (BrightView Holdings, Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that which the Administrative Agent, each Agent, each Lender or its assignee, the Backup Servicer, the Securities Intermediary or any such Person of their respective Affiliates may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agentindemnify, the Managing Agentsprotect, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or defend and hold harmless each such entity (each in its assignee capacity as such and in its individual capacity) and each of their respective Affiliates and officers, directors, employees, members employees and agents thereof (each, an “Indemnified Party” and collectively, the “Indemnified Parties”), forthwith on demand, ) from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys’ fees fees, expenses and disbursements (all of collectively, the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them in connection with, arising out of or as a result of this AgreementAgreement or the other Basic Documents, excluding, however, Indemnified Amounts to the extent resulting from the gross negligence negligence, bad faith or willful misconduct on the part of any such Indemnified PartyParty (as determined by a court of competent jurisdiction). Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or Receivable represented by the Borrower to be an Eligible Loan that Receivable which is not at the applicable time time, an Eligible LoanReceivable;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one Servicer, any of its Affiliates) their respective Affiliates or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) any other Regional Management Entity to comply with any term, provision or covenant contained in this Agreement or any other Basic Document or a failure by the Borrower or any Regional Management Entity to comply with any term, provision or covenant contained in any agreement executed in connection with this AgreementAgreement or any other Basic Document, or with any Applicable Law with respect to any Loan comprising a portion of the CollateralContract or Receivable, or the nonconformity non-conformity of any Loan, the Related Property Contract with any such Applicable Law or and any failure by the Originator, the Borrower or any Affiliate thereof other Regional Management Entity to perform its respective duties under the Loans Contracts and Receivables included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a valid and enforceable first priority perfected security interest in any or all of the Collateral, except for Permitted Liens;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws Law with respect to any Collateral the Collateral, whether at the time of any Advance a Loan or at any subsequent time and as required by the Transaction Basic Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that Receivable comprising a portion of the Collateral which is, or is purported to be, an Eligible Loan Receivable (including, without limitation, (A) including a defense based on the Loan Receivable not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(vii) any failure of by the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred LoansAgreement;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related PropertyReceivable;
(ix) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances the Loans Outstanding or payment of Interest Interest, any obligation or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party entity believes in good faith is required to be repaid;
(xi) any litigation, proceeding or investigation (a) before any Governmental Authority (1) in respect of any Contract or Receivable, (2) relating to the use of the proceeds of the Loan or (3) related to this Agreement (A) that is not commenced by the Indemnified Party or (B) if so commenced, in which such Indemnified Party is not the prevailing party; provided, that no Indemnified Party shall be entitled to any indemnification for any item described in this clause resulting from such Indemnified Party’s gross negligence or willful misconduct or (b) relating to or arising from the Basic Documents, the transactions contemplated hereby and thereby, the use of proceeds of the Loans by the Borrower or any other investigation, litigation or proceeding related relating to this Agreement the Borrower or the use of proceeds of Advances or Servicer in respect which any Indemnified Party becomes involved as a result of any Transferred Loan or of the Related Propertytransactions contemplated by the Basic Documents;
(xii) the use of the proceeds of any Loan;
(xiii) any failure by the Borrower to give reasonably equivalent value to the Originator Regional Management in consideration for the transfer by the Originator Regional Management to the Borrower of any Transferred Loan or of the Related Property Receivables and the related Collateral or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, including any provision of the Bankruptcy Code, orany Insolvency Law;
(xiiixiv) the failure of the Borrower, the Originator or any of their respective agents or representatives Borrower to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower of any Collections with other funds;
(xv) all reasonable and documented fees, costs and expense (including reasonable legal fees and expenses) incurred by any Lender, their respective Credit Providers or the Administrative Agent in connection with entering into or giving or withholding any amendments or supplements or waivers or consents (including review and analysis thereof) with respect to the Basic Documents or any Affiliate of any collections.other document or instrument delivered pursuant hereto or thereto (whether or not the same is finally agreed to) if the same is requested by the Borrower or the Servicer, or is required or necessary under the Basic Documents; or
(bxvi) any and all civil penalties or fines assessed by OFAC against, and all reasonable costs and expenses (including attorneys’ fees and disbursements) incurred in connection with the defense thereof by any Indemnified Party as a result of funding all or any portion of the Loan or the acceptance of payments or of Collateral due under the Basic Documents. Any amounts subject to the indemnification provisions of this Section 9.1 11.01 payable by the Borrower shall be paid by the Borrower solely pursuant to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to 2.08 in the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loanorder and priority set forth therein.
Appears in 4 contracts
Samples: Credit Agreement (Regional Management Corp.), Credit Agreement (Regional Management Corp.), Credit Agreement (Regional Management Corp.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any successor Servicer, the Secured Party or its assignee Parties and each of their respective Affiliates assigns and officers, directors, employees, members employees and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages (exclusive of consequential damages), losses, claims, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively referred to as the “Indemnified Amounts”) awarded against or incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this AgreementAgreement or the other Transaction Documents or the Collateral or in respect of any Receivable included in the Collateral, excluding, however, Indemnified Amounts to the extent resulting from gross negligence negligence, bad faith or willful misconduct on the part of any such Indemnified PartyParty and excluding disputes among the Indemnified Parties. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts relating to or resulting from:from (for purposes of this Section 11.1, references to the “Servicer” shall only apply to any Servicer that is an Affiliate of the Borrower):
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) or any of their respective officers under or in connection with this AgreementAgreement or any other Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iiiii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement Agreement, any of the other Transaction Documents or any agreement executed in connection with this Agreementtherewith, or with any Applicable Law Law, including with respect to any Loan comprising a portion of the Collateral, Collateral or the nonconformity of any Loan, the Related Property Collateral with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iviii) the failure to vest and maintain vested in the Administrative Agent Agent, as agent for the Secured Parties, a first priority perfected security interest in the Collateral;
, free and clear of any Lien (vother than Permitted Liens) whether existing at the time of the Loan or at any time thereafter (including, without limitation, as the result of the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws Law with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction DocumentsCollateral);
(viiv) the failure to maintain, as of the close of business on each Measurement Date prior to the Termination Date, an amount of Outstanding Loan Balance that is less than or equal to the Maximum Outstanding Loan Amount on such Business Day;
(v) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the any Obligor) of the any Obligor to the payment of with respect to any Transferred Loan that is, or is purported to be, an Eligible Loan Collateral (including, without limitation, (A) a defense based on the Loan Collateral not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) the equitable subordination of any other claim related to such Loan)Collateral;
(viivi) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties under the Transaction Documents with respect to any Collateral;
(vii) the failure of any Lockbox Account Bank or obligations Concentration Account Bank to remit any amounts held in a Lockbox Account or the Concentration Account pursuant to the instructions of the Servicer or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the provisions terms hereof) whether by reason of this Agreement the exercise of set-off rights or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loansotherwise;
(viii) any products liability claim inability to obtain any judgment in, or personal injury or property damage suit utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Borrower to qualify to do business or file any notice or business activity report or any similar report;
(ix) any action taken by the Borrower or related claim the Servicer in the enforcement or collection of any Collateral;
(x) any claim, suit or action of whatever sort any kind arising out of or in connection with merchandise or services that are the subject of any Transferred Loan or the Related PropertyEnvironmental Laws, including any vicarious liability;
(ixxi) the failure by the Borrower or the Servicer to pay when due any Taxes for which the Borrower such Person is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(xxii) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding Loan Balance or payment of Interest or any other amount due hereunder or under any Hedging Agreementother Transaction Document, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xixiii) except for as provided in this Agreement, the commingling of Collections by the Borrower or the Servicer on the Collateral at any time with other funds;
(xiv) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred the Loan or the Related Property;
security interest in the Collateral (xii) any failure by the Borrower to give reasonably equivalent value other than as related to the Originator in consideration for the transfer by the Originator to the Borrower acts of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Secured Parties, the Backup Servicer or the Collateral remitted to Custodian);
(xv) the Borrower or any such agent or representative use of the proceeds of the Loan in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsa manner other than as provided in this Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 11.1 shall be paid by the Borrower to the applicable Indemnified Party within two on the Payment Date following such Person’s written demand therefor to the Borrower setting forth the basis for such Indemnified Amounts in reasonable detail (2such written demand to be delivered not less than ten (10) Business Days following prior to the Administrative Agent’s demand thereforapplicable Payment Date).
(c) If for any reason the indemnification provided above in this Section 9.1 11.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 11.1 shall survive the resignation or removal of the Administrative Agent Agent, the Servicer, the Backup Servicer, Successor Servicer or any Managing Agent the Collateral Custodian and the termination of this Agreement.
(e) The parties hereto agree that Notwithstanding the above provisions of this Section 9.1 11.1, nothing in this Section shall not be interpreted construed to require the Borrower to provide recourse any indemnification under this Agreement or the other Transaction Documents for any damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements arising out of or in connection with credit losses with respect to any of the Receivables or any Related Security or the diminution in market value of the Collateral.
(f) If any Indemnified Party receives any Indemnified Amount from the Borrower against loss and is subsequently reimbursed for such amounts by reason of another party, such Indemnified Party hereby agrees to promptly reimburse the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred LoanBorrower for such reimbursed amounts.
Appears in 4 contracts
Samples: Credit Agreement (CLST Holdings, Inc.), Credit Agreement (CLST Holdings, Inc.), Credit Agreement (CLST Holdings, Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that which the Lender, the Collateral Agent, the Backup Servicer (whether in its capacity as Backup Servicer or successor Servicer), the Lender’s Bank, the Custodian, the Initial Qualifying Swap Counterparty or any such Person of their respective Affiliates may have hereunder or under Applicable Lawapplicable law, the Borrower hereby agrees to indemnify the Administrative Lender, the Collateral Agent, the Managing AgentsCustodian, the Backup Servicer, any Successor Servicerthe Lender’s Bank, the Collateral Custodian, any Secured Party or its assignee Initial Qualifying Swap Counterparty and each of their respective Affiliates and officers(each, directors, employees, members and agents thereof (collectively, the an “Indemnified Parties”), forthwith on demand, Party” for purposes of this Article VIII) 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 “Indemnified Amounts”) ), awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party by any of them arising out of or as a result of this AgreementAgreement or in respect of any Pledged Assets, excluding, however, (A) Indemnified Amounts to the extent resulting solely from gross negligence negligence, bad faith or willful misconduct on the part of any an Indemnified Party, (B) taxes (including interest and penalties imposed thereon) 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 or (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). Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts relating to or resulting from:from any of the following (to the extent not resulting solely from gross negligence, bad faith or willful misconduct on the part of an Indemnified Party):
(i) any Loan Pledged Receivable treated as or represented by the Borrower to be an Eligible Loan that Receivable which is not at the applicable time an Eligible LoanReceivable;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Borrower or any of their respective its officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law applicable law, rule or regulation with respect to any Loan comprising a portion of the CollateralPledged Assets, or the nonconformity of any Loan, the Related Property Pledged Assets with any such Applicable Law applicable law, rule or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateralregulation;
(iv) the failure to vest and maintain vested in the Administrative Collateral Agent or to transfer to the Collateral Agent a first priority perfected security interest in the CollateralReceivables which are, or are purported to be, Pledged Receivables, together with all related Other Conveyed Property, Collections, Related Security and other Pledged Assets related thereto (including, without limitation, the Borrower’s interest in and to any and all Obligor Collateral with respect to such Receivables), free and clear of any Adverse Claim whether existing at the time of the related Borrowing or at any time thereafter;
(v) the failure to maintain, as of the close of business on each Business Day prior to the Collection Date, a Facility Amount which is less than or equal to the lesser of (x) the Borrowing Limit on such Business Day and (y) the Borrowing Base on such Business Day;
(vi) the failure to maintain, as of the close of business on each Business Day prior to the Collection Date, a Facility Amount, calculated solely with respect to Loans secured by Pool A Receivables, which is less than or equal to the Pool A Borrowing Base;
(vii) the failure to maintain, as of the close of business on each Business Day prior to the Collection Date, a Facility Amount, calculated solely with respect to Loans secured by Pool B Receivables, which is less than or equal to the Pool B Borrowing Base;
(viii) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws applicable laws with respect to any Collateral Receivables which are, or are purported to be, Pledged Receivables or the other Pledged Assets related thereto, whether at the time of any Advance Borrowing or at any subsequent time and as required by the Transaction Documentstime;
(viix) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the an Obligor) of the Obligor to the payment of any Transferred Loan that Receivable which is, or is purported to be, an Eligible Loan a Pledged Receivable (including, without limitation, (A) a defense based on such Receivable (or the Loan Contract evidencing such Receivable) not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(viix) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loansother Transaction Document;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ixxi) the failure by of the Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the CollateralPledged Receivables or the Pledged Assets related thereto;
(xxii) any repayment by the Administrative Agent, any Managing Agent or a Secured Party Lender of any amount previously distributed in reduction payment of Advances Outstanding Loans or payment of Interest interest or Fees or any other amount due hereunder or under any Hedging Agreementhereunder, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party Lender believes in good faith is required to be repaid;
(xixiii) the commingling by the Borrower of Collections of Pledged Receivables at any time with other funds;
(xiv) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan Loans or the Related PropertyPledged Assets;
(xiixv) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property Receivable or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or;
(xiiixvi) the [Reserved];
(xvii) any failure of the Borrower, the Originator Borrower or any of their respective its agents or representatives to remit to the Servicer or the Administrative AgentCollection Account, Collections on the Collateral of Pledged Receivables remitted to the Borrower or any such agent or representative in accordance with representative;
(xviii) any failure on the terms hereof or the commingling by part of the Borrower duly to observe or perform in any Affiliate of material respect any collections.covenant or agreement under any Qualifying Interest Rate Swap; and/or
(bxix) any Contract related to any Pledged Receivable being rejected by an Obligor under Section 365 of the Bankruptcy Code in the event that a Bankruptcy Event has occurred with respect to such Obligor. Any amounts subject to the indemnification provisions of this Section 9.1 8.01 shall be paid by the Borrower to the Lender on behalf of the applicable Indemnified Party within two (2) Business Days following the Administrative AgentLender’s written demand therefor.
therefor on behalf of the applicable Indemnified Party (c) If and the Lender shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Lender of such amounts). The Lender, on behalf of any Indemnified Party making a request for any reason the indemnification provided above in under this Section 9.1 is unavailable 8.01, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Party or Amounts with respect to which such indemnification is insufficient requested, which certificate shall be conclusive absent demonstrable error. If the Borrower has made any payments in respect of Indemnified Amounts to hold the Lender, on behalf of an Indemnified Party harmlesspursuant to this Section 8.01 and such Indemnified Party thereafter collects any of such amounts from others, then such Indemnified Party will promptly repay such amounts collected to the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerationswithout interest.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 4 contracts
Samples: Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.), Receivables Loan and Security Agreement (Resource America Inc), Receivables Loan and Security Agreement (Resource America Inc)
Indemnities by the Borrower. (a) Without limiting any other rights that the Lenders or the Administrative Agent or any such Person of their respective officers, directors, employees, attorneys, agents, representatives, transferees, successors or assigns (each, an “Indemnified Person”) may have hereunder or under Applicable Lawapplicable law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee and hold harmless each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, Person 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 “Indemnified Amounts”) awarded Amounts that may be claimed or asserted against or incurred by, by any such Indemnified Party Person in connection with or arising out of the transactions contemplated under this Agreement or under any other non-monetary damages of Transaction Document or any such Indemnified Party actions or failures to act in connection therewith, including any of them and any and all legal costs and expenses arising out of or incurred in connection with disputes between or among any parties to any of the Transaction Documents; provided, that the Borrower shall not be liable for any indemnification to an Indemnified Person to the extent that any such Indemnified Amount (x) results from such Indemnified Person’s gross negligence or willful misconduct, in each case as finally determined by a court of competent jurisdiction or (y) constitutes recourse for uncollectible or uncollected Transferred Receivables as a result of this Agreementthe insolvency, excluding, however, Indemnified Amounts to bankruptcy or the extent resulting from gross negligence failure (without cause or willful misconduct justification triggered by the actions of the Borrower or any Affiliate) or inability on the part of any Indemnified Partythe related Obligor to perform its obligations thereunder. Without limiting the generality of the foregoing, the Borrower shall indemnify the pay on demand to each Indemnified Parties for Person any and all Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their respective officers its officers) under or in connection with this Agreement, which Agreement or any other Transaction Document (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or on any other information delivered by the Borrower pursuant hereto or thereto that shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iiiii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement Agreement, any other Transaction Document or any agreement executed in connection with this Agreementherewith or therewith (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality), any applicable law, rule or with any Applicable Law regulation with respect to any Loan comprising a portion of Transferred Receivable or the CollateralContract therefor, or the nonconformity of any Loan, Transferred Receivable or the Related Property Contract therefor with any such Applicable Law applicable law, rule or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateralregulation;
(iv1) the failure to vest and maintain vested in the Borrower valid and properly perfected title to and sole record and beneficial ownership of the Receivables that constitute Transferred Receivables, together with all Collections in respect thereof and all other Borrower Collateral, free and clear of any Adverse Claim and (2) the failure to maintain or transfer to the Administrative Agent Agent, for the benefit of itself and the Lenders, a first priority priority, perfected security interest Lien in any portion of the Borrower Collateral;
(iv) any dispute, claim, offset or defense of any Obligor (other than its discharge in bankruptcy) to the payment of any Transferred Receivable (including a defense based on any Dilution Factor or on such Receivable or the Contract therefor not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services giving rise to such Receivable or the furnishing of or failure to furnish such merchandise or services or relating to collection activities with respect to such Receivable (if such collection activities were performed by any of its Affiliates acting as Servicer);
(v) any products liability claim or other claim arising out of or in connection with merchandise, insurance or services that is the subject of any Contract with respect to any Transferred Receivable;
(vi) the commingling of Collections with respect to Transferred Receivables by the Borrower at any time with its other funds or the funds of any other Person;
(vii) any failure by the Borrower to filecause the filing of, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or any other Applicable Laws applicable laws with respect to any Collateral Transferred Receivable hereunder or any other Borrower Collateral, whether at the time of the Borrower’s acquisition thereof or any Advance made hereunder or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loanstime;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or any other Transaction Document or the use ownership of proceeds of Advances Receivables or Collections with respect thereto or any other investigation, litigation or proceeding relating to the Borrower, the Servicer or any Seller in respect which any Indemnified Person becomes involved as a result of any Transferred Loan of the transactions contemplated hereby or the Related Propertyby any other Transaction Document;
(xiiix) any failure by of (x) a Collection Account Bank to comply with the terms of the applicable Collection Account Agreement or (y) any Concentration Account Bank to comply with the terms of any Concentration Account Agreement;
(x) any Designated Event described in Section 8.01(d) or (e);
(xi) any failure of the Borrower to give reasonably equivalent value to the Originator applicable Seller under the Receivables Sale Agreement in consideration for of the transfer by the Originator to the Borrower such Seller of any Transferred Loan or the Related Property Receivable, or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision provisions or common law or equitable action, including, without limitation;
(xii) any action or omission by Borrower, any provision Seller or the Servicer which reduces or impairs the rights of the Bankruptcy Code, orAdministrative Agent or the Secured Parties with respect to any Receivable or the value of any such Receivable;
(xiii) any attempt by any Person to void any Borrowing or the failure of the BorrowerLien granted hereunder under statutory provisions or common law or equitable action; or
(xiv) any withholding, the Originator deduction or Charge imposed upon any payments with respect to any Transferred Receivable, any Borrower Assigned Agreement or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the other Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsCollateral.
(b) Any amounts Indemnified Amounts subject to the indemnification provisions of this Section 9.1 10.01 not paid in accordance with Section 2.08 shall be paid by the Borrower to the applicable Indemnified Party Person entitled thereto within two (2) ten Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 4 contracts
Samples: Credit and Security Agreement (Sungard Data Systems Inc), Credit and Security Agreement (Sungard Capital Corp Ii), Credit and Security Agreement (SunGard Systems International Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Deal Agent, the Managing Agents, the Backup Servicer, any the Collateral Agent, the Successor Servicer, the Collateral CustodianLenders, any the other Secured Party or its assignee Parties, and each of their respective Affiliates and officers, directors, employees, members employees and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 the “Indemnified Amounts”) awarded against or incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this AgreementAgreement or the financing or maintenance of the Aggregate Loan Amount or in respect of any Loan or any Contract, excluding, however, (a) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of an Indemnified Party or (b) Indemnified Amounts that have the effect of recourse for non-payment of the Loans due to credit problems of the Obligors (except as otherwise specifically provided in this Agreement). If the Borrower has made any indemnity payment pursuant to this Section 10.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified PartyAmounts then, the recipient shall repay to the Borrower an amount equal to the amount it has collected from others in respect of such Indemnified Amounts. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts relating to or resulting from:
(i) any Contract or Loan treated as or represented by the Borrower Credit Acceptance to be an Eligible Loan or an Eligible Contract that is not at the applicable time an Eligible LoanLoan or an Eligible Contract;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Borrower or any of their respective its officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law Law, with respect to any Loan comprising a portion of the CollateralLoan, Dealer Agreement, Purchase Agreement, any Contract, or the nonconformity of any Loan, the Related Property Dealer Agreement, Purchase Agreement or Contract with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Collateral Agent for the Secured Parties a first priority perfected security interest in the Collateral, together with all Collections, free and clear of any Lien whether existing at the time of any Funding or at any time thereafter;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral the Collateral, whether at the time of any Advance the Funding or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Contract (including, without limitation, (A) a defense based on the such Loan or Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(xix) any repayment by the Administrative Agent, any Managing Deal Agent or a any other Secured Party of any amount previously distributed in reduction of Advances Outstanding the Aggregate Loan Amount or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Deal Agent or a such other Secured Party believes in good faith is required to be repaid;
(x) the commingling of Collections of the Collateral at any time with other funds;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances any Funding or the funding of or maintenance of the Aggregate Loan Amount or in respect of any Transferred Loan or the Related PropertyContract;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of the Loans, Related Security or any Transferred Loan or the Related Property portion thereof or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or;
(xiii) the use of the proceeds of any Funding in a manner other than as provided in this Agreement and the Contribution Agreement; or
(xiv) the failure of the Borrower, the Originator Borrower or any of their respective its agents or representatives to remit to the Servicer or Servicer, the Administrative Deal Agent, the Collateral Agent and the Lenders or any other Secured Party, any Collections on of the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsrepresentative.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 10.1 shall be paid by the Borrower to the applicable relevant Indemnified Party within two (2) Business Days following on the Administrative Agent’s demand therefornext Payment Date.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 10.1 shall survive the resignation or removal of the Administrative Agent Deal Agent, the Collateral Agent, the Successor Servicer, any Lender or any Managing Agent the Backup Servicer and the assignment or termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 4 contracts
Samples: Loan and Security Agreement (Credit Acceptance Corp), Loan and Security Agreement (Credit Acceptance Corp), Loan and Security Agreement (Credit Acceptance Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that which any such Person Affected Party may have hereunder or under Applicable Lawapplicable law (including, without limitation, the right to recover damages for breach of contract), the Borrower hereby agrees to indemnify the Administrative AgentLender, the Managing AgentsServicer (if not an Affiliate of the Borrower), the Backup Servicer, any Successor Servicerthe Securities Intermediary, and the Collateral CustodianPaying Agent, any Secured Party or its assignee and each of their respective Affiliates and officers, directors, employees, members officers and agents thereof employees (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable external attorneys’ fees and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) ), awarded against or incurred by, any by such Indemnified Party to the extent relating to or other non-monetary damages of any such Indemnified Party any of them arising out of from or as a result of this Agreement, excluding, however, Indemnified Amounts Agreement or the funding or maintenance of Loans made by a Lender hereunder subject to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Partyproviso set forth below. Without limiting the foregoinggenerality of the foregoing indemnification, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts to the extent relating to or resulting fromfrom any of the following:
(i) the failure of any Loan treated as or Pledged Contract represented by the Borrower to be an Eligible Loan that is not Contract hereunder to be an “Eligible Contract” at the applicable time an Eligible Loanof such representation;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Borrower under this Agreement or any of their respective officers under or in connection with this Agreement, other Facility Document to which it is a party which shall have been false or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement, the Purchase Agreement or any agreement executed in connection with this Agreement, other Facility Document to which it is party or with any Applicable Law applicable law, rule or regulation with respect to any Loan comprising a portion of the Pledged Contract or other Collateral, or the nonconformity of any Loan, the Related Property Pledged Contract or other Collateral with any such Applicable Law applicable law, rule or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateralregulation;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise any Financed Vehicle or services that other goods or services, the sale or provision of which gave rise to or are the subject of any Transferred Loan or the Related PropertyPledged Contract;
(ixv) the failure by Borrower to pay when due any Taxes for which the Borrower is liabletaxes, including including, without limitation, sales, excise or personal property taxes payable by the Borrower in connection with the Collateral;
(xvi) the payment by such Indemnified Party 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 Borrower’s actions or failure to act in breach of this Agreement;
(vii) the failure to vest and maintain vested in the Lender, on behalf of the Secured Parties, a first priority perfected security interest in the Collateral, free and clear of any Lien except a Lien in favor of the Lender, whether existing at the time such Collateral arose or at any time thereafter;
(viii) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the applicable UCC or other applicable laws naming the Borrower as “Debtor” with respect to any Collateral;
(ix) any repayment by dispute, claim, offset or defense (other than as a result of the Administrative Agent, any Managing Agent bankruptcy or insolvency of the related Contract Debtor) of a Secured Party Contract Debtor to the payment of any amount previously distributed Pledged Contract (including, without limitation, a defense based on such Pledged Contract not being a legal, valid and binding obligation of such Contract Debtor enforceable against it in reduction of Advances Outstanding or payment of Interest accordance with its terms), or any other amount due hereunder claim resulting from the sale or under financing of the Financed Vehicle related to such Pledged Contract (other than as a result of the bankruptcy or insolvency of the related Contract Debtor);
(x) the commingling of Collections with any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaidother funds;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property Pledged Contract, or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of or the Bankruptcy Code;
(xii) the failure of any Depository Account Bank to remit any amounts or items of payment held in a Depository Account or in a Lock-Box pursuant to the instructions of the Lender given in accordance with this Agreement, orthe Master Agency Agreement or the other Facility Documents, whether by reason of the exercise of setoff rights or otherwise;
(xiii) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Loans made pursuant to this Agreement or any other Facility Document delivered hereunder or in respect of any of the Collateral;
(xiv) any claim brought by any Person arising from any activity by the Borrower in servicing, administering or collecting any Pledged Contract; or
(xv) the grant by the Borrower of a security interest in any Pledged Contract in violation of any applicable law, rule or regulation; provided, however, that the Borrower shall not be required to indemnify any Indemnified Party to the extent of any amounts (x) resulting from the gross negligence or willful misconduct of such Indemnified Party, or (y) constituting credit recourse for the failure of a Contract Debtor to pay a Pledged Contract, or (z) constituting net income or franchise taxes that are imposed by the Borrower, United States or franchise taxes or net income taxes that are imposed on such Indemnified Party by the Originator state or foreign jurisdiction under the laws of which such Indemnified Party is organized or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) political subdivision thereof. Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable related Indemnified Party within two (2) 10 Business Days following the Administrative Agent’s written demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 4 contracts
Samples: Loan and Servicing Agreement (DT Acceptance Corp), Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Credit Company, LLC)
Indemnities by the Borrower. (a) Without limiting any other rights that which any such Person Class A Lender, any Class B Lender, the Collateral Agent, the Backup Servicer (whether in its capacity as Backup Servicer or successor Servicer), the Lenders’ Bank, the Custodian, the Initial Qualifying Swap Counterparty or any of their respective Affiliates may have hereunder or under Applicable Lawapplicable law, the Borrower hereby agrees to indemnify each Lender, the Administrative Collateral Agent, the Managing AgentsCustodian, the Backup Servicer, any Successor Servicerthe Lenders’ Bank, the Collateral Custodian, any Secured Party or its assignee Initial Qualifying Swap Counterparty and each of their respective Affiliates and officers(each, directors, employees, members and agents thereof (collectively, the an “Indemnified Parties”), forthwith on demand, Party” for purposes of this Article VIII) 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 “Indemnified Amounts”) ), awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party by any of them arising out of or as a result of this AgreementAgreement or in respect of any Pledged Assets, excluding, however, (A) Indemnified Amounts to the extent resulting solely from gross negligence negligence, bad faith or willful misconduct on the part of any an Indemnified Party, (B) taxes (including interest and penalties imposed thereon) 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 or (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). Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts relating to or resulting from:from any of the following (to the extent not resulting solely from gross negligence, bad faith or willful misconduct on the part of an Indemnified Party):
(i) any Loan Pledged Receivable treated as or represented by the Borrower to be an Eligible Loan that Receivable which is not at the applicable time an Eligible LoanReceivable;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Borrower or any of their respective its officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law applicable law, rule or regulation with respect to any Loan comprising a portion of the CollateralPledged Assets, or the nonconformity of any Loan, the Related Property Pledged Assets with any such Applicable Law applicable law, rule or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateralregulation;
(iv) the failure to vest and maintain vested in the Administrative Collateral Agent or to transfer to the Collateral Agent a first priority perfected security interest in the CollateralReceivables which are, or are purported to be, Pledged Receivables, together with all related Other Conveyed Property, Collections, Related Security and other Pledged Assets related thereto (including, without limitation, the Borrower’s interest in and to any and all Obligor Collateral with respect to such Receivables), free and clear of any Adverse Claim whether existing at the time of the related Borrowing or at any time thereafter;
(v) the failure to maintain, as of the close of business on each Business Day prior to the Collection Date, a Facility Amount which is less than or equal to the lesser of (x) the Borrowing Limit on such Business Day and (y) the Facility Limit on such Business Day;
(vi) the failure to maintain, as of the close of business on each Business Day prior to the Collection Date, a Facility Amount, which is less than or equal to the Facility Limit;
(vii) Reserved;
(viii) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws applicable laws with respect to any Collateral Receivables which are, or are purported to be, Pledged Receivables or the other Pledged Assets related thereto, whether at the time of any Advance the Borrowing or at any subsequent time and as required by the Transaction Documentstime;
(viix) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the an Obligor) of the Obligor to the payment of any Transferred Loan that Receivable which is, or is purported to be, an Eligible Loan a Pledged Receivable (including, without limitation, (A) a defense based on such Receivable (or the Loan Contract evidencing such Receivable) not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(viix) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loansother Transaction Document;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ixxi) the failure by of the Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the CollateralPledged Receivables or the Pledged Assets related thereto;
(xxii) any repayment by the Administrative Agent, any Managing Agent or a Secured Party Lender of any amount previously distributed in reduction payment of Advances Outstanding Loans or payment of Interest interest or Fees or any other amount due hereunder or under any Hedging Agreementhereunder, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party Lender believes in good faith is required to be repaid;
(xixiii) the commingling by the Borrower of Collections of Pledged Receivables at any time with other funds;
(xiv) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan Loans or the Related PropertyPledged Assets;
(xiixv) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property Receivable or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or;
(xiiixvi) the Reserved;
(xvii) any failure of the Borrower, the Originator Borrower or any of their respective its agents or representatives to remit to the Servicer or the Administrative AgentCollection Account, Collections on the Collateral of Pledged Receivables remitted to the Borrower or any such agent or representative in accordance with representative;
(xviii) any failure on the terms hereof or the commingling by part of the Borrower duly to observe or perform in any Affiliate of material respect any collections.covenant or agreement under any Qualifying Interest Rate Swap; and/or
(bxix) any Contract related to any Pledged Receivable being rejected by an Obligor under Section 365 of the Bankruptcy Code in the event that a Bankruptcy Event has occurred with respect to such Obligor. Any amounts subject to the indemnification provisions of this Section 9.1 8.01 shall be paid by the Borrower to the applicable Lender on behalf of the applicable Indemnified Party within two (2) Business Days following such Lender’s written demand therefor on behalf of the Administrative Agent’s demand therefor.
applicable Indemnified Party (c) If and such Lender shall pay such amounts to the applicable Indemnified Party promptly after the receipt by such Lender of such amounts). Each Lender, on behalf of any related Indemnified Party making a request for any reason the indemnification provided above in under this Section 9.1 is unavailable 8.01, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Party or Amounts with respect to which such indemnification is insufficient requested, which certificate shall be conclusive absent demonstrable error. If the Borrower has made any payments in respect of Indemnified Amounts to hold a Lender, on behalf of an Indemnified Party harmlesspursuant to this Section 8.01 and such Indemnified Party thereafter collects any of such amounts from others, then such Indemnified Party will promptly repay such amounts collected to the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerationswithout interest.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 4 contracts
Samples: 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.), Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Deal Agent, the Managing Agents, the Backup Servicer, any the Collateral Agent, the Successor Servicer, the Collateral CustodianSecured Parties, any Secured Party or its assignee and each of their respective Affiliates and officers, directors, employeesmembers, members employees and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 the “Indemnified Amounts”) awarded against or incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this AgreementAgreement or the financing or maintenance of the Capital or in respect of any Loan or any Contract, excluding, however, (a) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party or (b) Indemnified Amounts that have the effect of recourse for non-payment of the Loans due to credit problems of the Obligors (except as otherwise specifically provided in this Agreement). If the Borrower has made any indemnity payment pursuant to this Section 11.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified PartyAmounts then, the recipient shall repay to the Borrower an amount equal to the amount it has collected from others in respect of such indemnified amounts. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts relating to or resulting from:
(i) any Contract or Loan treated as or represented by the Borrower Credit Acceptance to be an Eligible Dealer Loan Contract or Eligible Loan that is not at the applicable time an Eligible Dealer Loan Contract or Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Borrower or any of their respective its officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law Law, with respect to any Loan comprising a portion of the CollateralLoan, Dealer Agreement, Purchase Agreement, any Contract, or the nonconformity of any Loan, the Related Property Dealer Agreement, Purchase Agreement or Contract with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Collateral Agent for the Secured Parties a first priority perfected security interest in the Collateral, together with all Collections, free and clear of any Lien whether existing at the time of any Funding or at any time thereafter;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral the Collateral, whether at the time of any Advance the Funding or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Contract (including, without limitation, (A) a defense based on the such Loan or Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(xix) any repayment by the Administrative Agent, any Managing Deal Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding Capital or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Deal Agent or a Secured Party believes in good faith is required to be repaid;
(x) the commingling of Collections of the Collateral at any time with other funds;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances the Funding or the funding of or maintenance of Capital or in respect of any Transferred Loan or the Related PropertyContract;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of the Loans, Related Security or any Transferred Loan or the Related Property portion thereof or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or;
(xiii) the use of the Proceeds of any Funding; or
(xiv) the failure of the Borrower, the Originator Borrower or any of their respective its agents or representatives to remit to the Servicer or Servicer, the Administrative Deal Agent, the Collateral Agent or any other Secured Party, any Collections on of the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsrepresentative.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 11.1 shall be paid by the Borrower to the applicable relevant Indemnified Party within two (2) on the earlier of the next Payment Date or 5 Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 11.1 shall survive the resignation or removal of the Administrative Agent Deal Agent, the Collateral Agent, the Servicer, the Successor Servicer, the Lender or any Managing Agent and the Backup Servicer or the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 3 contracts
Samples: Loan and Security Agreement (Credit Acceptance Corp), Loan and Security Agreement (Credit Acceptance Corp), Loan and Security Agreement (Credit Acceptance Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person the Administrative Agent, the Credit Parties, the Affected Persons and their respective assigns, officers, directors, agents and employees (each, a “Borrower Indemnified Party”) may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured each Borrower Indemnified Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, losses and liabilities and related costs and expenses, (including reasonable attorneys’ fees and disbursements Attorney Costs) (all of the foregoing being collectively referred to as “Borrower Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result resulting from this Agreement or any other Transaction Document or the use of this Agreement, proceeds of the Credit Extensions or the security interest in respect of any Pool Receivable or any other Collateral; excluding, however, (x) Borrower Indemnified Amounts to the extent resulting a final non-appealable judgment of a court of competent jurisdiction holds that such Borrower Indemnified Amounts resulted from the gross negligence or willful misconduct on by the part Borrower Indemnified Party seeking indemnification, (y) Borrower Indemnified Amounts resulting from a claim brought by the Borrower, any Originator, the Servicer, or the Performance Guarantor against an Borrower Indemnified Party for breach in bad faith of any such Borrower Indemnified Party’s obligations hereunder or under any other Transaction Document, if such party has obtained a final and nonappealable judgment in its favor on such claim against the Borrower Indemnified Party as determined by a court of competent jurisdiction and (z) Taxes that are either (i) indemnified by Section 5.03 or (ii) Taxes other than Taxes arising from any non-Tax Borrower Indemnified Amount (provided that this clause (z) shall not operate to exclude from Borrower Indemnified Amounts any Taxes described in clause (xiv) below). Without limiting or being limited by the foregoing, the Borrower shall pay on demand (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 4.01), to each Borrower Indemnified Party any and all amounts necessary to indemnify the such Borrower Indemnified Parties for Party from and against any and all Borrower Indemnified Amounts relating to or resulting from:from any of the following (but excluding Borrower Indemnified Amounts and Taxes described in clauses (x) through (z) above):
(i) any Loan treated as or represented by Pool Receivable which the Borrower to be or the Servicer includes as an Eligible Loan that Receivable as part of the Net Receivables Pool Balance but which is not at the applicable time an Eligible LoanReceivable at such time;
(ii) reliance on any representation representation, warranty or warranty statement made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their its respective officers officers) under or in connection with this Agreement, any of the other Transaction Documents, any Information Package, any Interim Report or any other information or report delivered by or on behalf of the Borrower pursuant hereto which shall have been false untrue or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, Pool Receivable or the nonconformity related Contract; or the failure of any Loan, Pool Receivable or the Related Property with related Contract to conform to any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in all or any portion of the Collateral, in each case free and clear of any Adverse Claim;
(v) the failure to filehave filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable and the other Collateral and Collections in respect thereof, whether at the time of any Advance Credit Extension or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset claim or defense (other than the discharge in bankruptcy of the Obligorbankruptcy) of the an Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Pool Receivable (including, without limitation, (A) a defense based on such Pool Receivable or the Loan related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) any other claim resulting from or relating to collection activities with respect to such Pool Receivable, or any other claim resulting from the equitable subordination sale of goods or the rendering of services related to such Loan)Pool Receivable or the furnishing or failure to furnish any such goods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform any of its duties or obligations in accordance with the provisions hereof and of this Agreement each other Transaction Document related to Pool Receivables or any failure by to timely and fully comply with the Originator, the Borrower or any Affiliate thereof Credit and Collection Policy in regard to perform its respective duties under the Transferred Loanseach Pool Receivable;
(viii) any products liability claim or personal injury or property damage suit liability, environmental or other similar or related claim or action of whatever sort arising out of or in connection with merchandise any Pool Receivable or other merchandise, goods or services that which are the subject of or related to any Transferred Loan or the Related PropertyPool Receivable;
(ix) the commingling of Collections of Pool Receivables at any time with other funds;
(x) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or the use of proceeds of any Credit Extensions or in respect of any Pool Receivable or other Collateral or any related Contract;
(xi) any failure of the Borrower to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(xii) any setoff with respect to any Pool Receivable;
(xiii) any claim brought by any Person other than a Borrower Indemnified Party arising from any activity by the Borrower or any Affiliate of the Borrower in servicing, administering or collecting any Pool Receivable;
(xiv) the failure by the Borrower to pay when due any Taxes for which the Borrower is liabletaxes, including including, without limitation, sales, excise or personal property taxes payable in connection with the Collateraltaxes;
(xxv) any repayment failure of a Collection Account Bank to comply with the terms of the applicable Account Control Agreement, the termination by a Collection Account Bank of any Account Control Agreement or any amounts (including in respect of any indemnity) payable by the Administrative Agent, any Managing Agent or to a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or Collection Account Bank under any Hedging Account Control Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xixvi) any investigationaction taken by the Administrative Agent as attorney-in-fact for the Borrower, litigation any Originator or proceeding related the Servicer pursuant to this Agreement or any other Transaction Document;
(xvii) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(xviii) the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, Credit Extension; or
(xiiixix) the failure any reduction in Capital as a result of the Borrower, the Originator distribution of Collections if all or a portion of such distributions shall thereafter be rescinded or otherwise must be returned for any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsreason.
(b) Any amounts subject Notwithstanding anything to the contrary in this Agreement, solely for purposes of the Borrower’s indemnification provisions obligations in clauses (ii), (iii), (vii) and (xi) of this Section 9.1 Article XIII, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be paid by the Borrower deemed to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand thereforbe not so qualified.
(c) If for any reason the foregoing indemnification provided above in this Section 9.1 is unavailable to the any Borrower Indemnified Party or is insufficient to hold an Indemnified Party it harmless, then the Borrower, Borrower shall contribute to such Borrower Indemnified Party the amount paid or payable by such Borrower Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party economic interests of the Borrower and its Affiliates on the one hand and the Borrower, such Borrower Indemnified Party on the other hand but also in the matters contemplated by this Agreement as well as the relative fault of the Borrower and its Affiliates and such Borrower Indemnified Party as well as with respect to such loss, claim, damage or liability and any other relevant equitable considerations.
(d) . The reimbursement, indemnity and contribution obligations of the Borrower under this Section 9.1 shall be in addition to any liability which the Borrower may otherwise have, shall extend upon the same terms and conditions to each Borrower Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Borrower and the Borrower Indemnified Parties.
(d) Any indemnification or contribution under this Section shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 3 contracts
Samples: Receivables Financing Agreement (Concentrix Corp), Receivables Financing Agreement (Concentrix Corp), Receivables Financing Agreement (Concentrix Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Deal Agent, the Managing AgentsCollateral Agent, the Backup Servicer, any Successor Servicer, the Collateral CustodianLender, any the Secured Party or its assignee Parties, and each of their respective Affiliates and officers, directors, employees, members employees and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 the “Indemnified Amounts”) awarded against or incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party Party, any of them arising out of or as a result of this AgreementAgreement or the financing or maintenance of the Aggregate Loan Amount or in respect of any Loan or any Contract, excluding, however, (a) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party or (b) Indemnified Amounts that have the effect of recourse for non-payment of the Loans due to credit problems of the Obligors (except as otherwise specifically provided in this Agreement). If the Borrower has made any indemnity payment pursuant to this Section 10.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified PartyAmounts, then the recipient shall repay to the Borrower an amount equal to the amount it has collected from others in respect of such indemnified amounts. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts relating to or resulting from:
(i) any Contract or Loan treated as or represented by the Borrower Credit Acceptance to be an Eligible Loan or an Eligible Contract that is not at the applicable time an Eligible LoanLoan or an Eligible Contract;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Borrower or any of their respective its officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law Law, with respect to any Loan comprising a portion of the CollateralLoan, Dealer Agreement, Purchase Agreement or any Contract, or the nonconformity of any Loan, the Related Property Dealer Agreement, Purchase Agreement or Contract with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Collateral Agent for the Secured Parties a first priority perfected security interest in the Collateral, together with all Collections, free and clear of any Lien whether existing at the time of any Funding or at any time thereafter;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral the Collateral, whether at the time of any Advance the Funding or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Contract (including, without limitation, (A) a defense based on the such Loan or Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(xix) any repayment by the Administrative Agent, any Managing Deal Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding the Aggregate Loan Amount or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Deal Agent or a Secured Party believes in good faith is required to be repaid;
(x) the commingling of Collections of the Collateral at any time with other funds;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances the Funding or the funding of or maintenance of the Aggregate Loan Amount or in respect of any Transferred Loan or the Related PropertyContract;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of the Loans, Related Security or any Transferred Loan or the Related Property portion thereof or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or;
(xiii) the use of the Proceeds of the Funding in a manner other than as provided in this Agreement and the Contribution Agreement; or
(xiv) the failure of the Borrower, the Originator Borrower or any of their respective its agents or representatives to remit to the Servicer or Servicer, the Administrative Deal Agent, the Collateral Agent or any other Secured Party entitled thereto any Collections on of the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsrepresentative.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 10.1 shall be paid by the Borrower to the applicable relevant Indemnified Party within two (2) Business Days following on the Administrative Agent’s demand therefornext Payment Date.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 10.1 shall survive the resignation or removal of the Administrative Agent Deal Agent, the Collateral Agent, the Successor Servicer, the Lender or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 3 contracts
Samples: Loan and Security Agreement (Credit Acceptance Corp), Loan and Security Agreement (Credit Acceptance Corp), Loan and Security Agreement (Credit Acceptance Corp)
Indemnities by the Borrower. (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 that which the Affected Parties, the Secured Parties, the Administrative Agent, the Lenders, the Collateral Agent, the Account Bank, the Collateral Custodian or any such Person of their respective Affiliates may have hereunder or under Applicable Law, the Borrower Loan Parties hereby agrees agree to indemnify indemnify, jointly and severally, the Affected Parties, the Secured Parties, the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor ServicerLenders, the Collateral CustodianAgent, any Secured Party or its assignee the Account Bank, the Collateral Custodian and each of their respective Affiliates and Affiliates, assigns, officers, directors, employees, members employees and agents thereof (collectivelyeach, the “an "Indemnified Parties”)Party" for purposes of this Article VIII) against, forthwith on demandand to hold each Indemnified Party harmless from, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys’ ' fees and disbursements of (x) one outside counsel to the Administrative Agent (and any Lender Affiliated with the Administrative Agent) and the Lenders (subject to clause (z) below), (y) one outside counsel to the Collateral Agent, the Account Bank and the Collateral Custodian, and (z) one counsel per foreign or local jurisdiction deemed reasonably necessary by the Administrative Agent or the Collateral Agent, as applicable (all of the foregoing being collectively referred to as “"Indemnified Amounts”) "), awarded against or actually incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of of, in any way connected with, or as a result of this Agreement, excludingany of the other Transaction Documents or in respect of any of the Collateral or any claim, howeverlitigation, investigation or proceeding relating to any of the foregoing, including the enforcement of this Agreement or any Transaction Document against the Borrower, regardless of whether any such Indemnified Party is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower or any of its Affiliates or shareholders); provided that Indemnified Amounts shall not be available to an Indemnified Party to the extent resulting that such damages, losses, claims, liabilities and related costs and expenses (i) are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted solely from the gross negligence or willful misconduct on the part of any such Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to Party or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) or any of their respective officers under or in connection with this Agreement, result from Loan Assets which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) are uncollectible due to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor ’s financial inability to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionspay.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 8.01 shall be paid by the Borrower to the Administrative Agent on behalf of the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s 's written demand therefortherefor 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 8.01, shall submit to the Borrower a certificate (solely based on information provided by such Indemnified Party if not the Administrative Agent) setting forth 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 9.1 8.01 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmlessharmless in respect of any losses, claims, damages or liabilities, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such losslosses, claimclaims, damage damages or liability 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 Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) If the Borrower has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 8.01 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Borrower, without interest.
(e) The obligations of the Borrower under this Section 9.1 8.01 shall survive the resignation or removal of the Administrative Agent Agent, the Lenders, the Servicer, the Collateral Agent, the Account Bank or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any Managing Agent other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Servicer, the Account Bank or the Collateral Custodian and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 3 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 the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 “Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this Agreement, excluding, however, Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan included as part of the Collateral that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or;
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections; or
(xiv) the occurrence of a Subordination Event.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 3 contracts
Samples: Credit Agreement (Gladstone Investment Corporation\de), Credit Agreement (Gladstone Investment Corporation\de), Credit Agreement (Gladstone Investment Corporation\de)
Indemnities by the Borrower. (a) Without limiting any other rights that which the Affected Parties, the Secured Parties, the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Collateral Administrator, the Backup Servicer, the Collateral Custodian or any such Person of their respective Affiliates may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Affected Parties, the Secured Parties, Administrative Agent, the Managing Lenders, the Lender Agents, the Collateral Agent, the Backup Servicer, any Successor the Account Bank, the Backup Servicer, the Collateral Administrator, the Collateral Custodian, any Secured Party or its assignee Conduit Trustee and each of their respective Affiliates and Affiliates, assigns, officers, directors, employees, members employees and agents thereof (collectivelyeach, the an “Indemnified Parties”), forthwith on demand, Party” for purposes of this Article IX) from and against any and all damages, losses, claims, liabilities and related reasonable and documented out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements of one firm of counsel to the Administrative Agent and the Lenders and, if necessary, one firm of local counsel in each appropriate jurisdiction (all of the foregoing being collectively referred to as “Indemnified Amounts”) ), awarded against or actually incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this AgreementAgreement or in respect of any of the Collateral Portfolio, excluding, however, Indemnified Amounts to the extent resulting solely from (a) gross negligence negligence, bad faith or willful misconduct on the part of any an Indemnified PartyParty as determined in a final decision by a court of competent jurisdiction or (b) Loan Assets which are uncollectible due to the Obligor’s financial inability to pay. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts relating to or resulting from:
from any of the following (i) any Loan treated as or represented by to the Borrower to be an Eligible Loan that is extent not at resulting from the applicable time an Eligible Loan;
conditions set forth in (ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliatesa) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.above):
Appears in 3 contracts
Samples: Loan and Servicing Agreement (Carlyle GMS Finance, Inc.), Loan and Servicing Agreement (NF Investment Corp.), Loan and Servicing Agreement (Carlyle GMS Finance, Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person the Administrative Agent, the Lenders, the Affected Persons and their respective assigns, officers, directors, agents and employees (each, a “Borrower Indemnified Party”) may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured each Borrower Indemnified Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, losses and liabilities (including Attorney Costs (excluding the allocated costs of in house counsel and related costs and expenseslimited to not more than one firm of counsel for all such Borrower Indemnified Parties, including reasonable attorneys’ fees and disbursements taken as a whole, and, if necessary, a single local firm of counsel in each appropriate jurisdiction for all such Borrower Indemnified Parties, taken as a whole (and, in the case of an actual or perceived conflict of interest, of another firm of counsel for such affected Borrower Indemnified Party)) (all of the foregoing being collectively referred to as “Borrower Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this Agreement, excluding, however, Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement Document or the use of proceeds of Advances the Loans or the security interest in respect of any Transferred Loan or of the Related Property;Collateral; excluding, however,
(xiii) any failure Borrower Indemnified Amounts to the extent a final non-appealable judgment of a court of competent jurisdiction holds that such Borrower Indemnified Amounts resulted solely from the fraud, gross negligence or willful misconduct by the Borrower to give reasonably equivalent value Indemnified Party seeking indemnification and (ii) Borrower Indemnified Amounts to the Originator in consideration for the transfer extent arising from a claim, action, litigation, investigation, or other proceeding that does not arise from any act or omission by the Originator to the Borrower any Bird Transaction Party or any officer, partner, director, trustee, employee, or agent of any Transferred Loan or the Related Property or any attempt Bird Transaction Party and that is brought by any Person to void or otherwise avoid Borrower Indemnified Party against another Borrower Indemnified Party (other than any such transfer under any statutory provision or common law or equitable claim, action, includinglitigation, without limitationinvestigation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or other proceeding brought against the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative Agent in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsits capacity as such).
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor[Reserved].
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 3 contracts
Samples: Loan and Security Agreement (Bird Global, Inc.), Loan and Security Agreement (Bird Global, Inc.), Loan and Security Agreement (Bird Global, Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that which any such Affected Person may have hereunder or under Applicable Lawapplicable law (including, without limitation, the right to recover damages for breach of contract), the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee and hold harmless each of Affected Person and their respective Affiliates and officersAffiliates, directorsagents, employees, members officers, and agents thereof directors (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable external attorneys’ fees and disbursements and all costs and expenses incurred, including reasonable external attorneys’ fees and disbursements, in connection with the enforcement of this provision (all of the foregoing being collectively referred to as “Indemnified Amounts”) ), awarded against or incurred by, any by such Indemnified Party to the extent relating to or other non-monetary damages of any such Indemnified Party any of them arising out of from or as a result of this Agreement, excludingthe funding, howeverissuing or maintenance of Credit Extensions hereunder, Indemnified Amounts the use of the Letters of Credit, or proceeds of Loans or Releases, or any interest therein, or in respect of any Pool Receivable, Related Security or Contract, or in respect of any other Facility Document subject to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Partyproviso set forth below. Without limiting the foregoinggenerality of the foregoing indemnification, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts to the extent relating to or resulting fromfrom any of the following:
(i) the failure of any Loan treated as or Pool Receivable represented by the Borrower to be an Eligible Loan that is not Receivable hereunder to be an “Eligible Receivable” at the applicable time an Eligible Loanof such representation;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Borrower under this Agreement or any of their respective officers under or in connection with this Agreement, other Facility Document to which it is a party which shall have been false or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement, the Receivables Sale Agreement or any agreement executed in connection with this Agreement, other Facility Document to which it is party or with any Applicable Law applicable law, tariff, rule or regulation with respect to any Loan comprising a portion of Pool Receivable, the Collateralrelated Contract, or the Related Security, or the nonconformity of any LoanPool Receivable, the related Contract or the Related Property Security with any such Applicable Law applicable law, tariff, rule or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateralregulation;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise goods or services that services, the sale or provision of which gave rise to or are the subject of any Transferred Loan Pool Receivable or the Related PropertyContract;
(ixv) the failure by Borrower to pay when due any Taxes for which the Borrower is liabletaxes, including including, without limitation, sales, excise or personal property taxes payable by the Borrower in connection with the Collateral;
(xvi) the payment by such Indemnified Party of taxes, including, without limitation, any repayment 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 Borrower’s actions or failure to act in breach of this Agreement;
(vii) the failure to vest and maintain vested in the Administrative Agent, any Managing Agent or on behalf of the Secured Parties, a Secured Party first priority perfected security interest in the Pool Receivables, together with all Collections, Related Security and other Collateral, free and clear of any amount previously distributed Lien except a Lien in reduction favor of Advances Outstanding any Affected Person, whether existing at the time such Pool Receivable arose or at any time thereafter;
(viii) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the applicable UCC or other applicable laws naming the Borrower as “Debtor” with respect to any Collateral;
(ix) any dispute, claim, offset or defense (other than as a result of the bankruptcy or insolvency of the related Obligor) of an Obligor to the payment of Interest any Pool Receivable (including, without limitation, a defense based on such Pool Receivable not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other amount due hereunder claim resulting from the sale of goods or under services related to such Pool Receivable or the furnishing or failure to furnish such goods or services (other than as a result of the bankruptcy or insolvency of the related Obligor);
(x) the commingling of Collections with any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaidother funds;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property Pool Receivables, or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code;
(xii) the failure of any Deposit Account Bank or Payment Processor to remit any amounts or items of payment held in a Deposit Account or in a Lock-Box pursuant to the instructions of the Administrative Agent given in accordance with this Agreement, orthe applicable Deposit Account Control Agreement, the applicable Lock-Box Control Agreement or the other Facility Documents, whether by reason of the exercise of setoff rights or otherwise;
(xiii) any investigation, litigation or proceeding related to this Agreement, or the use of proceeds of Loans made pursuant to this Agreement or any other Facility Document delivered hereunder or in respect of any of the Collateral;
(xiv) any claim brought by any Person arising from any activity by the Borrower in servicing, administering or collecting any Pool Receivable;
(xv) the grant by the Borrower of a security interest in any Receivable in violation of any applicable law, tariff, rule or regulation;
(xvi) the failure of the BorrowerBorrower to furnish accurate and complete documentation (including, without limitation, a Contract or invoice) to any Obligor;
(xvii) the Originator failure of any Payment Processor, Sub-Servicer or any other third party with a contractual relationship with the Borrower for the acceptance or processing of their respective agents or representatives Collections, to remit any Collections received by it to a Lock-Box or a Deposit Account within two (2) Business Days of receipt;
(xviii) the failure of any Transaction Party to pay when due any Direct Taxes, energy surcharges or other governmental charges payable by it in connection with the Pool Receivables or the Facility Documents;
(xix) the amendment, modification or termination of any tariff or similar contract governing any Pool Receivable or the activities of the Borrower; or
(xx) the failure of the sale and pledge of any Pool Receivable under the Facility Documents to comply with the requirements of the Federal Assignment of Claims Act or any analogous State or local Laws. provided, however, that the Borrower shall not be required to indemnify any Indemnified Party to the Servicer extent of any amounts (x) resulting from the gross negligence or the Administrative Agent, Collections on the Collateral remitted willful misconduct of such Indemnified Party as determined by final non-appealable judgment of a court of competent jurisdiction; (y) for which indemnification would constitute recourse (except as otherwise specifically provided in this Agreement to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling be paid by the Borrower hereunder) for uncollectible Receivables; or (z) in respect of Taxes other than any Affiliate of Taxes that represent losses, claims, damages, etc. arising from any collections.
(b) non-Tax claim. Any amounts subject to the indemnification provisions of this Section 9.1 8.01 shall be paid by the Borrower to the applicable related Indemnified Party within two five (25) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 3 contracts
Samples: Receivables Loan and Servicing Agreement (NRG Energy, Inc.), Receivables Loan and Servicing Agreement (NRG Energy, Inc.), Receivables Loan and Servicing Agreement (NRG Energy, Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that which any such Person may have hereunder or under Applicable Lawapplicable law, the Borrower hereby agrees to indemnify the Administrative Agentindemnify, the Managing AgentsLender, the Backup Servicerits Affiliates, any Successor Servicersuccessors, the Collateral Custodian, any Secured Party or its assignee permitted transferees and each of their respective Affiliates assigns and all officers, directors, employeesshareholders, members controlling persons, employees and agents thereof of any of the foregoing (collectively, the each an “Indemnified PartiesParty”), forthwith on demand, 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 “Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party by any of them arising out of or as a result of this Agreement, the other Facility Documents, or any transaction contemplated hereby or thereby excluding, however, (a) Indemnified Amounts to the extent resulting a court of competent jurisdiction determines that they resulted from gross negligence negligence, bad faith or willful misconduct on the part of any such Indemnified Party. Without limiting , (b) in the foregoing, event that the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to Lender has assigned its rights or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one delegated its obligations in respect of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) and the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law Indemnified Amounts with respect to any Loan comprising a portion of such assignee exceed the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan Indemnified Amounts that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes would otherwise have been payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following Lender, the Administrative Agent’s demand therefor.
amount of such excess, (c) If for taxes expressly excluded from Taxes in Section 3.02(a) above (other than any such Taxes that are incremental and arise solely by reason of a breach by the indemnification provided above in Borrower of its obligations under this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmlessAgreement), then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) any lost profits or indirect, exemplary, punitive or consequential damages of any Indemnified Party. In any suit, proceeding or action brought by the Lender in connection with any Collateral for any sum owing thereunder, or to enforce any provisions of any Collateral, the Borrower will save, indemnify and hold the Lender harmless from and against all expense, loss or damage suffered by reason of any defense, set-off, counterclaim, recoupment or reduction or liability whatsoever of the account debtor or obligor thereunder, arising out of a breach by the Borrower of any obligation thereunder or arising out of any other agreement, indebtedness or liability at any time owing to or in favor of such account debtor or obligor or its successors from the Borrower. The obligations Borrower also agrees to reimburse the Lender as and when billed by the Lender for all the Lender’s out-of-pocket costs and expenses incurred in connection with the enforcement or the preservation of the Lender’s rights under this Agreement, the Note, any other Facility Document or any transaction contemplated hereby or thereby, including without limitation the fees and disbursements of its counsel. The Borrower hereby acknowledges that, notwithstanding the fact that the Note is secured by the Collateral, the obligation of the Borrower under this Section 9.1 shall survive the removal Note is a recourse obligation of the Administrative Agent or Borrower. Under no circumstances shall any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not Indemnified Party be interpreted to provide recourse liable to the Borrower against loss by reason of the bankruptcy for any lost profits or insolvency (indirect, exemplary, punitive or other credit condition) of, or default by, an Obligor on, any Transferred Loanconsequential damages.
Appears in 3 contracts
Samples: Loan and Security Agreement (Pennymac Financial Services, Inc.), Loan and Security Agreement (Pennymac Financial Services, Inc.), Loan and Security Agreement (PennyMac Mortgage Investment Trust)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to defend, protect, indemnify and hold harmless the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral CustodianBank Parties (each in its individual capacity and in its capacity as such), any Secured Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, liabilities liabilities, penalties, actions, suits, and judgments and related costs and expensesexpenses of any kind or nature whatsoever, including reasonable attorneys’ fees and disbursements that may be incurred by or asserted or awarded against any Indemnified Party or other non-monetary damages of any such Indemnified Party (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them in each case arising out of or as a result in connection with or by reason of the execution, delivery, enforcement, performance, administration of or otherwise arising out of or incurred in connection with this Agreement, any other Transaction Document, any Loan Document or any transaction contemplated hereby or thereby (including, but not limited to, the costs and expenses incurred in connection with any enforcement (including any dispute, action, claim or suit brought) by an Indemnified Party of any indemnification or other obligation of the Borrower), excluding, however, (x) Indemnified Amounts arising due to the deterioration in the credit quality or market value of the Transferred Loans or other Collateral hereunder to the extent that such credit quality or market value was not misrepresented in any material respect by the Borrower or any of its Affiliates, (y) Indemnified Amounts to the extent resulting from actual fraud, gross negligence or willful misconduct on the part of any Indemnified PartyParty (as determined in a final, non-appealable adjudication by a court of competent jurisdiction) and (z) Indemnified Amounts constituting Taxes (other than (i) any Taxes that represent damages, losses, claims, etc. arising from any non-Tax claim and (ii) as enumerated below in clause (ix)). Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (if the BDC or one any of its Affiliates) or any of their respective officers under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (if the BDC or one any of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, Loan or the Related Property with any such Applicable Law or any failure by the OriginatorBorrower, the Borrower BDC or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any material delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan included as part of the Collateral that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator BDC or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the OriginatorBorrower, the Borrower BDC or any Affiliate thereof to perform its respective duties under the Transferred LoansLoans included as a part of the Collateral;
(viii) 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 merchandise or services that are the subject of any Transferred Loan included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(ix) the failure by the Borrower to pay when due any Taxes for which the Borrower is liableliable (and that are not Taxes described in clauses (i) through (v) of Section 2.13(a)), including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) the commingling of Collections at any time with other funds;
(xi) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xixii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of proceeds of Advances or in respect of any Transferred Loan included as part of the Collateral or the Related PropertyProperty included as part of the Collateral of the ownership of any Loan or any Related Property relating to any Loan or any other investigation, litigation or proceeding relating to the Borrower or the Servicer in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiixiii) any action or omission by the Servicer or the Borrower which reduces or impairs the rights of the Borrower or the Administrative Agent, any Managing Agent or any Secured Party with respect to any Loan included as part of the Collateral or the value of any such Loan (other than any such action which is expressly permitted under Article VII hereof);
(xiv) any failure by the Borrower to give reasonably equivalent value to the Originator BDC in consideration for the transfer by the Originator BDC to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or;
(xiiixv) the failure of the Borrower, the Originator Servicer or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower Borrower, the Servicer or any such agent or representative in accordance with the terms hereof or of any other Transaction Document.
(xvi) any inability to litigate any claim against any Obligor in respect of any Collateral as a result of such Obligor being immune from civil and commercial law and suit on the commingling grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(xvii) any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Borrower, the BDC or the Servicer to qualify to do business or file any notice or business activity report or any similar report;
(xviii) any action taken by the Borrower or any Affiliate the Servicer or their respective agents or representatives in the enforcement or collection of any collectionsCollateral or with respect to any Related Property; or
(xix) any fraud or material misrepresentation by the Borrower or the Servicer or on the part of the Obligor with respect to any Loan.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two five (25) Business Days following the Administrative Agentsuch Indemnified Party’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent Agent, any Managing Agent, the Bank Parties or any Managing Agent other Secured Party and the termination or assignment of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 3 contracts
Samples: Credit Agreement (Trinity Capital Inc.), Credit Agreement (Trinity Capital Inc.), Credit Agreement (Trinity Capital Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative AgentAgents (in their capacities as such or, if applicable, in their capacities as structuring or placement agents with respect to this Agreement), the Managing AgentsLenders, the Backup Servicer, any Successor Servicer, the Collateral Custodian, the Securities Custodian, any Secured Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demandwith a copy to the Documentation Agent, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable and documented attorneys’ fees and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”” and calculated without duplication of Indemnified Amounts paid by the Servicer pursuant to Section 9.2) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this AgreementAgreement (including the structuring hereof and syndication of commitments hereunder to the extent that any such Indemnified Party had been engaged therefor), excluding, however, Indemnified Amounts to the extent resulting from (x) gross negligence or negligence, willful misconduct or bad faith on the part of any Indemnified Party or (y) a claim brought by the Borrower or the Servicer against an Indemnified Party for breach in bad faith of such Indemnified Party’s obligations hereunder or under any other Transaction Document (including, in each case, the structuring hereof or syndication of commitments hereunder) as to which such breach shall have been found to have occurred by final order of a court of competent jurisdiction or (z) without limitation of the Borrower’s obligations under Section 2.13, under any Federal, state or local income or franchise taxes or any other Tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by such Indemnified Party in connection herewith to any taxing authority. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their respective its officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Facility Agent a first priority perfected security interest in the Collateral;
(v) the failure to filefile or authorize filing, or any delay in filing or authorizing filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan included as part of the Collateral that is, or is purported to be, an Eligible Loan (including, without limitation, (A) including a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Facility Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding Borrowings or payment of Interest or any other amount due hereunder or under any Hedging Agreementhereunder, in each case which amount the Administrative Agent, such Managing Facility Agent or a such Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, including any provision of the Bankruptcy Code, ; or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Facility Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following in accordance with the Administrative Agent’s demand thereforPriority of Payments. If the Borrower makes any indemnity payment pursuant to this Section 9.1 and the recipient thereafter collects any payments from other persons in respect of such Indemnified Amounts, the recipient shall repay to the Borrower an amount equal to the amount it has collected from other persons in respect of such Indemnified Amounts.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the resignation or removal of the Administrative Agent or any Managing Agent and the termination of this AgreementAgreement but only with respect to any actions or omissions prior to such resignation or removal.
(e) The parties hereto agree that the provisions of this Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, on any Transferred Loan.
Appears in 3 contracts
Samples: Loan and Servicing Agreement (Prospect Capital Corp), Loan and Servicing Agreement (Prospect Capital Corp), Loan and Servicing Agreement (Prospect Capital Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person the Administrative Agent, the Credit Parties, the Affected Persons and their respective assigns, officers, directors, agents and employees (each, a “Borrower Indemnified Party”) may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured each Borrower Indemnified Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, losses and liabilities and related costs and expenses, (including reasonable attorneys’ fees and disbursements Attorney Costs) (all of the foregoing being collectively referred to as “Borrower Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result resulting from this Agreement or any other Transaction Document or the use of this Agreement, proceeds of the Credit Extensions or the security interest in respect of any Pool Receivable or any other Collateral; excluding, however, (a) Borrower Indemnified Amounts to the extent resulting a final judgment of a court of competent jurisdiction holds that such Borrower Indemnified Amounts resulted solely from the gross negligence or willful misconduct on by the part Borrower Indemnified Party seeking indemnification or any of any Indemnified Partyits Controlled Related Parties and (b) Taxes that are covered by Section 5.03. Without limiting or being limited by the foregoing, the Borrower shall pay on demand (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 4.01), to each Borrower Indemnified Party any and all amounts necessary to indemnify the such Borrower Indemnified Parties for Party from and against any and all Borrower Indemnified Amounts relating to or resulting from:from any of the following (but excluding Borrower Indemnified Amounts and Taxes described in clauses (a) and (b) above):
(i) any Loan treated as or represented by Pool Receivable which the Borrower to be or the Servicer includes as an Eligible Loan that Receivable as part of the Net Receivables Pool Balance but which is not at the applicable time an Eligible LoanReceivable at such time;
(ii) reliance on any representation representation, warranty or warranty statement made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their its respective officers officers) under or in connection with this Agreement, any of the other Transaction Documents, any Information Package or any other information or report delivered by or on behalf of the Borrower pursuant hereto which shall have been false untrue or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, Pool Receivable or the nonconformity related Contract; or the failure of any Loan, Pool Receivable or the Related Property with related Contract to conform to any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in all or any portion of the Collateral, in each case free and clear of any Adverse Claim;
(v) the failure to filehave filed, or any delay in filing, financing statements (including as-extracted collateral filings), financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable and the other Collateral and Collections in respect thereof, whether at the time of any Advance Credit Extension or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset claim or defense (other than the discharge in bankruptcy of the Obligorbankruptcy) of the an Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Pool Receivable (including, without limitation, (A) a defense based on such Pool Receivable or the Loan related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) the equitable subordination of any other claim resulting from or relating to collection activities with respect to such Loan)Pool Receivable;
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform any its duties or obligations in accordance with the provisions hereof and of this Agreement each other Transaction Document related to Pool Receivables or any failure by to timely and fully comply with the Originator, the Borrower or any Affiliate thereof Credit and Collection Policy in regard to perform its respective duties under the Transferred Loanseach Pool Receivable;
(viii) any products liability claim or personal injury or property damage suit liability, environmental or other similar or related claim or action of whatever sort arising out of or in connection with merchandise any Pool Receivable or other merchandise, goods or services that which are the subject of or related to any Transferred Loan or the Related PropertyPool Receivable;
(ix) the commingling of Collections of Pool Receivables at any time with other funds;
(x) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or the use of proceeds of any Credit Extensions or in respect of any Pool Receivable or other Collateral or any related Contract;
(xi) any failure of the Borrower to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(xii) any setoff with respect to any Pool Receivable;
(xiii) any claim brought by any Person other than a Borrower Indemnified Party arising from any activity by the Borrower or any Affiliate of the Borrower in servicing, administering or collecting any Pool Receivable;
(xiv) the failure by the Borrower to pay when due any Taxes for which the Borrower is liabletaxes, including including, without limitation, sales, excise or personal property taxes payable in connection with the Collateraltaxes;
(xxv) any repayment failure of a Lock-Box Bank to comply with the terms of the applicable Lock-Box Agreement or any amounts payable by the Administrative AgentAgent to a Lock-Box Bank under any Lock-Box Agreement;
(xvi) any dispute, any Managing Agent claim, offset or a Secured Party defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any amount previously distributed Pool Receivable (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in reduction of Advances Outstanding or payment of Interest accordance with its terms), or any other amount due hereunder claim resulting from the sale of goods or under the rendering of services related to such Pool Receivable or the furnishing or failure to furnish any Hedging Agreement, in each case which amount such goods or services or other similar claim or defense not arising from the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required financial inability of any Obligor to be repaidpay undisputed indebtedness;
(xixvii) any investigationaction taken by the Administrative Agent as attorney-in-fact for the Borrower, litigation any Originator, the Transferor or proceeding related the Servicer pursuant to this Agreement or any other Transaction Document;
(xviii) the use of proceeds of Advances any Credit Extension or in respect the usage of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower Letter of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, Credit; or
(xiiixix) the failure any reduction in Capital as a result of the Borrower, the Originator distribution of Collections if all or a portion of such distributions shall thereafter be rescinded or otherwise must be returned for any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsreason.
(b) Any amounts subject Notwithstanding anything to the contrary in this Agreement, solely for purposes of the Borrower’s indemnification provisions obligations in clauses (ii), (iii), (vii) and (xi) of this Section 9.1 Article XIII, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be paid by the Borrower deemed to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand thereforbe not so qualified.
(c) If for any reason the foregoing indemnification provided above in this Section 9.1 is unavailable to the any Borrower Indemnified Party or is insufficient to hold an Indemnified Party it harmless, then the Borrower, Borrower shall contribute to such Borrower Indemnified Party the amount paid or payable by such Borrower Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party economic interests of the Borrower and its Affiliates on the one hand and the Borrower, such Borrower Indemnified Party on the other hand but also in the matters contemplated by this Agreement as well as the relative fault of the Borrower and its Affiliates and such Borrower Indemnified Party as well as with respect to such loss, claim, damage or liability and any other relevant equitable considerations.
(d) . The reimbursement, indemnity and contribution obligations of the Borrower under this Section 9.1 shall be in addition to any liability which the Borrower may otherwise have, shall extend upon the same terms and conditions to each Borrower Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Borrower and the Borrower Indemnified Parties.
(d) Any indemnification or contribution under this Section shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 3 contracts
Samples: Receivables Financing Agreement (Alliance Resource Partners Lp), Receivables Financing Agreement (Alliance Holdings GP, L.P.), Receivables Financing Agreement (Alliance Holdings GP, L.P.)
Indemnities by the Borrower. (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 that which the Affected Parties, the Secured Parties, the Administrative Agent, the Lenders, the Collateral Agent, the Account Bank, the Collateral Custodian or any such Person of their respective Affiliates may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Affected Parties, the Secured Parties, the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor ServicerLenders, the Collateral CustodianAgent, any Secured Party or its assignee the Account Bank, the Collateral Custodian and each of their respective Affiliates and Affiliates, assigns, officers, directors, employees, members employees and agents thereof (collectivelyeach, the an “Indemnified Parties”)Party” for purposes of this Article VIII) against, forthwith on demandand to hold each Indemnified Party harmless from, 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 “Indemnified Amounts”) ), awarded against or actually incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of of, in any way connected with, or as a result of this Agreement, excludingany of the other Transaction Documents or in respect of any of the Collateral or any claim, howeverlitigation, investigation or proceeding relating to any of the foregoing including the enforcement of this Agreement or any other Transaction Document against the Borrower, regardless of whether any such Indemnified Party is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower or any of its Affiliates or shareholders); provided that Indemnified Amounts shall not be available to an Indemnified Party to the extent resulting that such damages, losses, claims, liabilities and related costs and expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted solely from the gross negligence or willful misconduct on the part of any such Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 8.01 shall be paid by the Borrower to the Administrative Agent (or, with respect to any amounts owing to the Collateral Agent, the Collateral Custodian or the Account Bank, to the Collateral Agent) on behalf of the applicable Indemnified Party within two ten (210) Business Days following the Administrative Agent’s (or the Collateral Agent’s, if applicable) written demand therefortherefor 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 8.01, shall submit to the 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 9.1 8.01 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmlessharmless in respect of any losses, claims, damages or liabilities, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such losslosses, claimclaims, damage damages or liability 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 Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) If the Borrower has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 8.01 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Borrower, without interest.
(e) The obligations of the Borrower under this Section 9.1 8.01 shall survive the resignation or removal of the Administrative Agent Agent, the Lenders, the Servicer, the Collateral Agent, the Account Bank or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any Managing Agent other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Servicer, the Account Bank or the Collateral Custodian and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
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 the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing AgentsCollateral Agent, the Backup Servicer, any Successor ServicerSecured Parties, the Collateral Custodian, any Secured Party or its assignee Lenders and each of their respective Affiliates assigns and officers, directors, employees, members employees and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 the “Indemnified Amounts”) awarded against, incurred by or asserted by the Borrower or any third party against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this AgreementAgreement or having an interest in the Collateral or in respect of any Loan included in the Collateral, excluding, however, any Indemnified Amounts to the extent resulting solely from gross negligence or willful misconduct on the part of any Indemnified Party in the performance of such Indemnified Party’s obligations hereunder as determined in a final non-appealable decision by a court of competent jurisdiction. If the Borrower has made any indemnity payment pursuant to this Section 10.1 and Section 10.3 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts then, the recipient shall repay to the Borrower an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts (except to the extent resulting solely from gross negligence or willful misconduct on the part of any Indemnified Party in the performance of such Indemnified Party’s obligations hereunder or arising on account of Tax (except as provided in Section 10.1(a)(xiii) or if such Tax is suffered on account of a non-Tax claim)) relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 3 contracts
Samples: Loan and Security Agreement (Oaktree Specialty Lending Corp), Loan and Security Agreement (Oaktree Specialty Lending Corp), Loan and Security Agreement (Oaktree Strategic Income II, Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that which the Affected Parties, the Secured Parties, the Administrative Agent, the Lenders, the Collateral Agent, or any such Person of their respective Affiliates may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Affected Parties, the Secured Parties, Administrative Agent, the Managing Agents, the Backup Servicer, any Successor ServicerLenders, the Collateral CustodianAgent, any Secured Party or its assignee and each of their respective Affiliates and Affiliates, assigns, officers, directors, employees, members employees and agents thereof (collectivelyeach, the an “Indemnified Parties”), forthwith on demand, Party” for purposes of this Article IX) from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements of a single law firm and local counsel in each relevant jurisdiction, awarded against or actually incurred by such Indemnified Party arising out of or as a result of this Agreement or in respect of any of the Collateral (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this Agreement), excluding, however, Indemnified Amounts to the extent resulting solely from (a) gross negligence negligence, bad faith or willful misconduct on the part of any such Indemnified PartyParty as determined in a final decision by a court of competent jurisdiction or (b) Loan Assets which are uncollectible due to the Obligor’s financial inability to pay. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts relating to or resulting from:from any of the following (to the extent not resulting from the conditions set forth in (a) or (b) above):
(i) any Loan Asset treated as or represented by the Borrower to be an Eligible Loan that Asset which is not at the applicable time an Eligible LoanLoan Asset, 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, any Loan Asset being determined as a Warranty Loan Asset or the purchase by any party or origination of any Loan Asset which violates Applicable Law;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Borrower or any of their respective its officers under or in connection with this AgreementAgreement or any Transaction Document, including any Quarterly Servicing Report, Quarterly Servicing Report Certificate or any other information or report delivered by or on behalf of the Borrower pursuant hereto which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion item of the Collateral, or the nonconformity of any Loan, the Related Property item of Collateral with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent Collateral Agent, for the benefit of the Secured Parties, a first priority perfected security interest in the Collateral, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or at any time thereafter;
(v) the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws Law with respect to any Loan Assets included in the Collateral or the other Portfolio Assets related thereto, whether at the time of any Advance or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the an Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Asset included in the Collateral (including, without limitation, (A) a defense based on such Loan Asset (or the Loan Agreement evidencing such Loan Asset) not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) any other claim resulting from the equitable subordination sale of the merchandise or services related to such Loan)Collateral or the furnishing or failure to furnish such merchandise or services;
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement the Transaction Documents to which it is a party or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loansany Collateral;
(viii) any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Borrower to qualify to do business or file any notice or business activity report or any similar report;
(ix) any action taken by the Borrower in the enforcement or collection of the Collateral which results in any claim, suit or action of any kind pertaining to the Collateral or which reduces or impairs the rights of the Administrative Agent or Lender with respect to any Loan Asset or the value of any such Loan Asset or any action or inaction by the Borrower that causes the Collateral Agent, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;
(x) 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 merchandise the Underlying Collateral or services that are the subject of any Transferred Loan or the Related PropertyCollateral;
(ixxi) any claim, suit or action of any kind arising out of or in connection with Environmental Laws relating to the Borrower or the Collateral, including any vicarious liability;
(xii) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including including, without limitation, sales, excise or personal property taxes Taxes payable in connection with the Collateral;
(xxiii) any repayment by the Administrative Agent, any Managing Agent the Lenders or a Secured Party of any amount previously distributed in reduction payment of Advances Outstanding or payment of Interest interest or Fees or any other amount due hereunder or under any Hedging Agreementhereunder, in each case which amount the Administrative Agent, such Managing Agent the Lenders or a Secured Party believes in good faith is required to be repaid;
(xixiv) the commingling by the Borrower of Collections required to be remitted to the Collection Account with other funds;
(xv) any investigation, litigation or proceeding related to this Agreement (or the Transaction Documents), or the use of proceeds of Advances or in respect of any Transferred Loan the Collateral, or the Related Propertyadministration of the Loan Assets by the Borrower or any litigation, proceedings or investigation against the Borrower;
(xiixvi) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property item of Collateral or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or;
(xiiixvii) the use of the proceeds of any Advance in a manner other than as provided in this Agreement and the Transaction Documents;
(xviii) any failure of the Borrower, the Originator Borrower or any of their respective its agents or representatives to remit to the Servicer or the Administrative AgentCollection Account within two Business Days of receipt, Collections on with respect to the Collateral remitted to the Borrower or any such agent or representative representative; or
(xix) failure or delay in accordance assisting a Replacement Servicer in assuming the Loan Asset Servicing to service and administer the Collateral, or failure or delay in complying with instructions from the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsAdministrative Agent with respect thereto.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 8.01 shall be paid by the Borrower to the Administrative Agent on behalf of the applicable Indemnified Party within two (2) 10 Business Days following receipt by the Borrower of the Administrative Agent’s written demand therefortherefor 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 8.01, shall submit to the 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 the Borrower has made any reason the indemnification provided above payments in this Section 9.1 is unavailable respect of Indemnified Amounts to the Indemnified Party or is insufficient to hold Administrative Agent on behalf of an Indemnified Party harmlesspursuant to this Section 8.01 and such Indemnified Party thereafter collects any of such amounts from others, then such Indemnified Party will promptly repay such amounts collected to the Borrower, shall contribute Borrower in an amount equal to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability it has collected from others in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault respect of such Indemnified Party as well as any other relevant equitable considerationsAmounts, without interest.
(d) The obligations of the Borrower under this Section 9.1 8.01 shall survive the resignation or removal of the Administrative Agent Agent, the Lenders, or any Managing Agent the Collateral Agent, and the termination of this Agreement.
(e) The parties hereto agree that the provisions of An indemnification obligation under this Section 9.1 8.01 shall not be interpreted to provide recourse arise solely as a result of a Loan Asset being uncollectible due to the Borrower against loss Obligor’s financial inability to pay. Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 8.01, within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by reason such Indemnified Party relating to the claim giving rise to the Indemnified Amounts; provided that failure to deliver such copies shall not relieve the Indemnifying Party of its obligations hereunder unless the bankruptcy or insolvency indemnifying Party is materially and adversely prejudiced thereby (or other credit condition) ofand in such case, or default by, an Obligor on, any Transferred Loanonly to the extent so materially and adversely prejudiced by such failure).
Appears in 3 contracts
Samples: Loan and Servicing Agreement (Star Mountain Lower Middle-Market Capital Corp), Loan and Servicing Agreement (Star Mountain Lower Middle-Market Capital Corp), Loan and Servicing Agreement (Star Mountain Lower Middle-Market Capital Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any the Secured Party or its assignee Parties, the Affected Parties and each of their respective Affiliates assigns and officers, directors, employees, members employees and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 the “Indemnified Amounts”) awarded against or incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this AgreementAgreement or having an interest in the Collateral or in respect of any Loan included in the Collateral, excluding, however, any Indemnified Amounts to the extent resulting from gross negligence negligence, bad faith or willful misconduct on the part of any Indemnified Party. If the Borrower has made any indemnity payment pursuant to this Section 10.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts then, the recipient shall repay to the Borrower an amount equal to the amount it has collected from others in respect of such indemnified amounts. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts (except to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party as determined by a court of competent jurisdiction by final non-appealable judgment) relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Collateral Manager or any of their respective officers under or in connection with this AgreementAgreement or any other Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(ii) the failure of any Loan acquired on the Closing Date to be an Eligible Loan as of the Closing Date and the failure of any Loan acquired after the Closing Date to be an Eligible Loan on the related Funding Date;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) Collateral Manager to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law Law, with respect to any Loan comprising a portion of the Collateral, Collateral or the nonconformity of any Loan, the Related Property Collateral with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected Agent, as agent for the Secured Parties, an undivided security interest in the Collateral, together with all Collections, free and clear of any Lien (other than Permitted Liens) whether existing at the time of any Advance or at any time thereafter;
(v) the failure to maintain, as of the close of business on each Business Day prior to the Termination Date, an amount of Advances Outstanding that is less than or equal to the Borrowing Base on such Business Day;
(vi) the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws Law with respect to any Collateral Collateral, whether at the time of any Advance or at any subsequent time and as required time, if such failure or delay (i) was caused by the Transaction DocumentsBorrower or the Collateral Manager, (ii) could have been cured by either the Collateral Manager or the Borrower and such cure was not effected in a timely manner or (iii) resulted from a failure or delay by either the Borrower or the Collateral Manager to confirm satisfactory completion in a timely manner of any and all actions they requested in order to maintain compliance with the UCC or such other Applicable Law;
(vivii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of with respect to any Transferred Loan that is, or is purported to be, an Eligible Loan Collateral (including, without limitation, (A) a defense based on the Loan Collateral not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(viiviii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) Collateral Manager to perform its duties or obligations in accordance with the provisions of this Agreement or any of the other Transaction Documents to which it is a party or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under any Underlying Instrument related to the Transferred LoansCollateral;
(viiiix) the failure of the Collateral Custodian to remit any amounts held in the Collection Account pursuant to the instructions of the Collateral Manager or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof) whether by reason of the exercise of set-off rights or otherwise;
(x) any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Borrower or the Collateral Manager to qualify to do business or file any notice or business activity report or any similar report;
(xi) any action taken by the Borrower or the Collateral Manager in the enforcement or collection of any Collateral;
(xii) 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 merchandise the Underlying Assets or services that are the subject of any Transferred Loan or the Related PropertyCollateral;
(ixxiii) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(xxiv) any repayment by the Administrative Agent, any Managing Agent or a another Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a another Secured Party believes in good faith is required to be repaidrepay;
(xixv) except with respect to funds held in the Collection Account and the Unfunded Exposure Account, the commingling of Collections on the Collateral at any time with other funds;
(xvi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or the security interest in respect of any Transferred Loan or the Related PropertyCollateral;
(xiixvii) any failure by the Borrower to give reasonably equivalent value to the Originator Seller or the applicable third party transferor, in consideration for the transfer by the Originator Seller or such third party to the Borrower of any Transferred Loan or the Related Property item of Collateral or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or;
(xiiixviii) the use of the proceeds of any Advance in a manner other than as provided in this Agreement and the Sale Agreement;
(xix) the failure of the Borrower, the Originator Borrower or any of their respective its agents or representatives to remit to the Servicer Collateral Manager or the Administrative Agent, Collections on the Collateral remitted to the Borrower Borrower, the Collateral Manager or any such agent or representative as provided in accordance with this Agreement; or
(xx) the terms hereof or failure of the commingling by the Borrower or any Affiliate of any collectionsCollateral Manager to satisfy its obligations under Section 10.2.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 10.1 shall be paid by the Borrower to the applicable Indemnified Party within two pursuant to Section 2.7 or 2.8, as applicable, on the later of (2i) Business Days the Payment Date following the Administrative Agentsuch Person’s demand therefortherefor and (ii) 30 days after the Borrower’s receipt from such Person of a reasonably detailed description in writing of the related damage, loss, claim, liability and related costs and expenses.
(c) If for any reason the indemnification provided above in this Section 9.1 10.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that, the Borrower shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 10.1(a).
(d) The obligations of the Borrower under this Section 9.1 10.1 shall survive the resignation or removal of the Administrative Agent Agent, the Collateral Manager or any Managing Agent the Collateral Custodian and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 3 contracts
Samples: Loan and Security Agreement (New Mountain Guardian III BDC, L.L.C.), Loan and Security Agreement (New Mountain Guardian III BDC, L.L.C.), Loan and Security Agreement (New Mountain Guardian III BDC, L.L.C.)
Indemnities by the Borrower. (a) Without limiting any other rights that which the Secured Parties or any such Person of their respective Affiliates may have hereunder or under Applicable Law, the Borrower hereby agrees to shall indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee Parties and each of their respective Affiliates and Affiliates, assigns, officers, directors, employees, members employees and agents thereof (collectivelyeach, the an “Indemnified Parties”), forthwith on demand, Party” for purposes of this Article X) from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable and documented attorneys’ fees and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against ), incurred by or incurred by, any asserted such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of (i) this AgreementAgreement or the other Transaction Documents or in respect of any of the Collateral, (ii) any Advance or the use or proposed use of the proceeds therefrom or (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether any Indemnified Party is a party thereto, excluding, however, Indemnified Amounts to the extent resulting from gross negligence negligence, bad faith or willful misconduct on the part of any Indemnified PartyParty as determined in a final decision by a court of competent jurisdiction. Without limiting the foregoing, the Borrower This Section 10.01 shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law apply with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (Taxes other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liablethat represent losses, including without limitationclaims, salesdamages, excise or personal property taxes payable in connection with the Collateral;
(x) etc. arising from any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsnon-Tax claim.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 10.01 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days thirty days following receipt by the Administrative Agent’s Borrower of the written demand therefortherefor on behalf of the applicable Indemnified Party. Any request for indemnification under this Section 10.01 shall be in the form of a notice setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested.
(c) If for any reason the indemnification provided above in this Section 9.1 10.01 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmlessharmless in respect of any losses, claims, damages or liabilities (in each case, other than as a result of the express limitations set forth therein), then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such losslosses, claimclaims, damage damages or liability 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 Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) If the Borrower has made any payments in respect of Indemnified Amounts to the Indemnified Party pursuant to this Section 10.01 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Borrower in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The obligations of the Borrower under this Section 9.1 10.01 shall survive the resignation or removal of the Administrative Agent Agent, the Calculation Agent, the Portfolio Asset Servicer or any Managing Agent and the Collateral Custodian or the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 3 contracts
Samples: Loan and Servicing Agreement (Carlyle Credit Solutions, Inc.), Loan and Servicing Agreement (TCG BDC II, Inc.), Loan and Servicing Agreement (TCG BDC II, Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that which any such Person Indemnified Party (as defined below) may have hereunder or under Applicable Lawapplicable law, the Borrower Borrowers hereby agrees agree to indemnify the Administrative Agent, the Managing AgentsLender, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any each Affected Party and each other Secured Party or its assignee and each of their respective Affiliates and officers, directors, employees, members agents and agents thereof employees (collectively, the each an “Indemnified PartiesParty”), forthwith on demand, ) from and against any and all damages, losses, claims, liabilities liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or reasonably incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party by any of them arising out of or as a result of this AgreementAgreement or the acquisition, either directly or indirectly, by any Secured Party of an interest in the Assets, excluding, however, Indemnified Amounts to the extent resulting a final non-appealable judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of any such Indemnified Party. Without limiting the foregoinggenerality of the foregoing indemnification, the Borrower Borrowers shall indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Assets, regardless of whether reimbursement therefor would constitute recourse to the Borrowers, but excluding Indemnified Amounts to the extent final non-appealable judgment of a court of competent jurisdiction holds such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of such Indemnified Party) relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrowerany GWG Party, the Servicer (or one of its Affiliates) any Servicer, any Initial Lender, any Bridge Loan Lender, any Life Settlement Provider or any Originator or any officer or employee of their respective officers the foregoing under or in connection with this AgreementAgreement any Master Servicer’s Certificate, or any Borrowing Base Certificate or any other Related Document or any other information or report delivered by any such party pursuant to any Related Document, which shall have been false or incorrect in any material respect when made or deemed made or deliveredmade;
(iiiii) the failure by the Borrower any GWG Party, any Servicer, any Initial Lender, any Bridge Loan Lender, any Life Settlement Provider or the Servicer (or one of its Affiliates) any Originator to comply with any termapplicable law, provision rule or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law regulation with respect to any Loan comprising a portion of the CollateralAsset, Other Conveyed Property or Asset Documents related thereto, or the nonconformity of any LoanAsset, the Related Other Conveyed Property or Asset Documents related thereto with any such Applicable Law applicable law, rule or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateralregulation;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(viiiii) any failure of the Borrower any GWG Party, any Servicer, any Initial Lender, any Bridge Loan Lender, any Life Settlement Provider or the Servicer (if the any Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement Agreement, any other Related Document, any Asset Documents, or any failure by the Originator, the Borrower other contract or any Affiliate thereof agreement related to perform its respective duties under the Transferred Loansa Asset or Other Conveyed Property with respect thereto;
(viiiiv) 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 merchandise or services that are any transaction which is the subject of any Transferred Loan Asset Document, any Asset or the Related Propertyany Other Conveyed Property with respect thereto;
(ixv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the failure by Borrower Obligor) of any Obligor, any Insured, any Initial Lender, any Bridge Loan Lender or any Life Settlement Provider to pay when due the payment of any Taxes for which the Borrower is liableAsset (including, including without limitation, salesa defense based on such Asset or any related Asset Document not being a legal, excise valid and binding obligation of the related Obligor, Insured, Initial Lender, Bridge Loan Lender or personal property taxes payable Life Settlement Provider, as applicable, enforceable against it in connection accordance with its terms), or any other claim relating to a Asset or any Asset Document,
(vi) the Collateralcommingling of Collections at any time with other funds;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xivii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Related Document, the transactions contemplated hereby or thereby, the use of the proceeds of Advances, the holding of the security interest created hereunder or any other investigation, litigation or proceeding relating to any GWG Party, any Servicer, any Initial Lender, any Bridge Loan Lender, any Life Settlement Provider or any Originator, the Assets or Other Conveyed Property in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby or thereby;
(viii) any failure to vest and maintain vested in the Agent, for the benefit of the Secured Parties, a first priority perfected security interest in the Collateral as described in this Agreement or the use of proceeds of Advances or in respect existence of any Transferred Loan Adverse Claim upon or with respect to the Related Property;Collateral; or
(xiiix) any failure by to vest and maintain vested in the Borrower Borrowers legal and equitable title to, and ownership of, the Assets, the Other Conveyed Property and the Collections, free and clear of any Adverse Claim (other than Adverse Claims created pursuant to this Agreement); or any failure of the Borrowers to give reasonably equivalent value to the Originator applicable Seller under the Sale and Servicing Agreement in consideration for of the transfer by the Originator to the Borrower applicable Seller of any Transferred Asset or any Other Conveyed Property with respect thereto; or any failure of the applicable Seller to give reasonably equivalent value to any Initial Lender, Bridge Loan Lender or Life Settlement Provider, as applicable, in consideration of the Related transfer by such Initial Lender, Bridge Loan Lender or Life Settlement Provider, as applicable, of any Asset or any Other Conveyed Property with respect thereto; or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision provisions or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code. Notwithstanding anything to the contrary in this Agreement, or
(xiii) the failure solely for purposes of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above obligations set forth in this Section 9.1 is unavailable to the Indemnified 8.01, any representations, warranties and covenants made by any GWG Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid any Servicer in this Agreement or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault Related Documents which are qualified by or limited to events or circumstances which have, or are reasonably likely to have, given rise to a Material Adverse Effect or are qualified or limited by other concepts of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 materiality, shall not be interpreted deemed to provide recourse to the Borrower against loss by reason of the bankruptcy be so qualified or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loanlimited.
Appears in 3 contracts
Samples: Credit and Security Agreement, Credit and Security Agreement (GWG Holdings, Inc.), Credit and Security Agreement (GWG Holdings, Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person the Administrative Agent, the Credit Parties, the Affected Persons and their respective assigns, officers, directors, agents and employees (each, a “Borrower Indemnified Party”) may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured each Borrower Indemnified Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, losses and liabilities and related costs and expenses, (including reasonable attorneys’ fees and disbursements Attorney Costs) (all of the foregoing being collectively referred to as “Borrower Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result resulting from this Agreement or any other Transaction Document or the use of this Agreement, proceeds of the Credit Extensions or the security interest in respect of any Pool Receivable or any other Collateral; excluding, however, (a) Borrower Indemnified Amounts to the extent resulting a final non-appealable judgment of a court of competent jurisdiction holds that such Borrower Indemnified Amounts resulted solely from the gross negligence or willful misconduct on by the part of Borrower Indemnified Party seeking indemnification and (b) Taxes other than Taxes that represent losses, claims, damages, etc., arising from any Indemnified Partynon-Tax claim. Without limiting or being limited by the foregoing, the Borrower shall pay on demand (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 4.01), to each Borrower Indemnified Party any and all amounts necessary to indemnify the such Borrower Indemnified Parties for Party from and against any and all Borrower Indemnified Amounts relating to or resulting from:from any of the following (but excluding Borrower Indemnified Amounts and Taxes described in clauses (a) and (b) above):
(i) any Loan treated as or represented by Pool Receivable which the Borrower to be or the Servicer includes as an Eligible Loan that Receivable as part of the Net Receivables Pool Balance but which is not at the applicable time an Eligible LoanReceivable at such time;
(ii) reliance on any representation representation, warranty or warranty statement made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their its respective officers officers) under or in connection with this Agreement, any of the other Transaction Documents, any Information Package, any Interim Report or any other information or report delivered by or on behalf of the Borrower pursuant hereto which shall have been false untrue or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, Pool Receivable or the nonconformity related Contract; or the failure of any Loan, Pool Receivable or the Related Property with related Contract to conform to any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in all or any portion of the Collateral, in each case free and clear of any Lien;
(v) the failure to filehave filed, or any delay in filing, financing statements (including, as-extracted collateral filings), financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable and the other Collateral and Collections in respect thereof, whether at the time of any Advance Credit Extension or at any subsequent time and as required by the Transaction Documentstime;
(vi) [reserved];
(vii) any failure of the Borrower to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(viii) any products liability, environmental or other claim arising out of or in connection with any Pool Receivable or other merchandise, goods or services which are the subject of or related to any Pool Receivable;
(ix) the commingling of Collections of Pool Receivables at any time with other funds;
(x) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or the use of proceeds of any Credit Extensions or in respect of any Pool Receivable or other Collateral or any related Contract;
(xi) any failure of the Borrower to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(xii) the failure or delay by the Borrower to provide any Obligor with an invoice or other evidence of indebtedness;
(xiii) any setoff with respect to any Pool Receivable;
(xiv) any claim brought by any Person other than a Borrower Indemnified Party arising from any activity by the Borrower or any Affiliate of the Borrower in servicing, administering or collecting any Pool Receivable;
(xv) the failure by the Borrower to pay when due any taxes, including, without limitation, sales, excise or personal property taxes;
(xvi) any failure of a Collection Account Bank to comply with the terms of the applicable Account Control Agreement or any amounts payable by the Administrative Agent to a Collection Account Bank under any Account Control Agreement;
(xvii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Pool Receivable (including, without limitation, (A) a defense based on such Pool Receivable or the Loan related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) any other claim resulting from or relating to collection activities with respect to such Pool Receivable, the equitable subordination sale of goods or the rendering of services related to such Loan)Pool Receivable or the furnishing or failure to furnish any such goods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(viixviii) any failure of action taken by the Borrower Administrative Agent as attorney-in-fact for the Borrower, any Originator, the Sub-Originator or the Servicer (if the Originator or one of its Affiliates) pursuant to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loansother Transaction Document;
(viiixix) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances any Credit Extension or in respect the usage of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower Letter of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, Credit; or
(xiiixx) the failure any reduction in Capital as a result of the Borrower, the Originator distribution of Collections if all or a portion of such distributions shall thereafter be rescinded or otherwise must be returned for any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsreason.
(b) Any amounts subject Notwithstanding anything to the contrary in this Agreement, solely for purposes of the Borrower’s indemnification provisions obligations in clauses (ii), (iii), (vii) and (xi) of this Section 9.1 Article XIII, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be paid by the Borrower deemed to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand thereforbe not so qualified.
(c) If for any reason the Any indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 3 contracts
Samples: Receivables Financing Agreement (CONSOL Energy Inc.), Receivables Financing Agreement, Sub Originator Sale Agreement, Purchase and Sale Agreement (CONSOL Energy Inc.), Receivables Financing Agreement (CONSOL Energy Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that the Administrative Agent, the Funding Agents, the Conduit Lenders, the Committed Lenders, the Program Support Providers, any such Person Program Manager or any of their respective officers, directors, agents, employees, controlling Persons or other Affiliates (each, an "Indemnified Party") may have hereunder or under Applicable Lawapplicable law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured each Indemnified Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs liabilities, deficiencies, costs, disbursements and expenses, including including, without limitation, interest, penalties, amounts paid in settlement and reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result resulting from this Agreement or any other Transaction Document or the use of this Agreementproceeds of Loans or in respect of any Collateral, excluding, however, (a) Indemnified Amounts to the extent resulting that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of such Indemnified Party and (b) any income taxes incurred by such Indemnified PartyParty arising out of or as a result of this Agreement or the ownership of Loans. Without limiting or being limited by the foregoing, the Borrower shall pay on demand to each Indemnified Party any and all amounts necessary to indemnify the such Indemnified Parties for Party from and against any and all Indemnified Amounts relating to or resulting from:from any of the following (excluding Indemnified Amounts and taxes described in clauses (a) and (b) above):
(i) any Loan treated as or represented by Receivable which the Borrower to be or the Collection Agent includes as part of the Net Receivables Balance on any date but which is not an Eligible Loan that is not at the applicable time an Eligible LoanReceivable as of such date;
(ii) reliance on any representation other representation, warranty, certification, report or warranty other statement made or deemed made by the Borrower, the Servicer any Transaction Party (or one of its Affiliates) or any of their respective officers officers) under or in connection with this Agreement, Agreement or any of the other Transaction Documents which shall have been false or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) any Transaction Party to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable applicable Law with respect to any Loan comprising a portion of the Collateral, Receivable or the nonconformity related Contract; or the failure of any Loan, Receivable or the Related Property with related Contract to conform to any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateralapplicable Law;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in all of the Collateral, free and clear of any Adverse Claim;
(v) the failure to filehave filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws applicable laws with respect to any Collateral Collateral, whether at the time of any Advance purchase or reinvestment or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset claim or defense (other than the discharge in bankruptcy of the Obligorbankruptcy) of the an Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Receivable (including, without limitation, (A) a defense based on such Receivable or the Loan related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or any other claim resulting from the sale of the merchandise, goods or services related to such Receivable or the furnishing or failure to furnish such merchandise, goods or services or relating to collection activities with respect to such Receivable (Bif such collection activities were performed by the Borrower or any of its Affiliates acting as Collection Agent) the equitable subordination of such Loan)or relating to any Contract related thereto;
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) any Transaction Party to perform its duties or obligations in accordance with the provisions of this Agreement hereof and each other Transaction Document or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties or obligations under the Transferred LoansContracts or to timely and fully comply in all respects with the Credit and Collection Policy in regard to each Receivable and the related Contract;
(viii) any products liability claim or personal injury or property damage suit liability, environmental or other similar or related claim or action of whatever sort arising out of or in connection with merchandise merchandise, goods or services that which are the subject of any Transferred Loan Contract or the Related Propertysale of which gave rise to any Receivable;
(ix) the commingling of Collections of Receivables at any time with other funds;
(x) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or the use of proceeds of Loans or any Collateral;
(xi) any setoff with respect to any Receivable;
(xii) any claim brought by any Person other than an Indemnified Party arising from any activity by the Borrower or any Affiliate of the Borrower in servicing, administering or collecting any Collateral;
(xiii) the failure by Borrower any Transaction Party to pay when due any Taxes for which the Borrower is liabletaxes, including including, without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, taxes; or
(xiiixiv) the failure Percentage Factor exceeding the Maximum Percentage Factor as of the close of business on the Business Day immediately preceding any Release Date or Borrowing Date. Notwithstanding anything to the contrary in this Agreement, solely for purposes of the Borrower's indemnification obligations in clauses (ii) and (vii) of this Article X, the Originator any representation, warranty or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling covenant qualified by the Borrower occurrence or any Affiliate non-occurrence of any collections.
(b) Any amounts subject to the indemnification provisions a Material Adverse Effect or similar concepts of this Section 9.1 materiality shall be paid by the Borrower deemed to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand thereforbe not so qualified.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 3 contracts
Samples: Receivables Loan Agreement (TRW Automotive Inc), Receivables Loan Agreement (TRW Automotive Inc), Receivables Loan Agreement (TRW Automotive Holdings Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that which any such Person may have hereunder or under Applicable Lawapplicable law, the Borrower each Borrower, jointly and severally, hereby agrees to indemnify the Administrative Agentindemnify, the Managing AgentsLender, the Backup Servicerits Affiliates, any Successor Servicersuccessors, the Collateral Custodian, any Secured Party or its assignee permitted transferees and each of their respective Affiliates assigns and all officers, directors, employeesshareholders, members controlling persons, employees and agents thereof of any of the foregoing (collectively, the each an “Indemnified PartiesParty”), forthwith on demand, 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 “Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party by any of them arising out of or as a result of this Agreement, the other Facility Documents (including without limitation, any Acknowledgement Agreement), or any transaction contemplated hereby or thereby excluding, however, (a) Indemnified Amounts to the extent resulting a court of competent jurisdiction determines that they resulted from gross negligence negligence, bad faith or willful misconduct on the part of such Indemnified Party, (b) in the event that the Lender has assigned its rights or delegated its obligations in respect of this Agreement, and the Indemnified Amounts with respect to such assignee exceed the Indemnified Amounts that would otherwise have been payable by any Borrower to the Lender, the amount of such excess, (c) Excluded Taxes (other than any incremental Taxes arising solely by reason of a breach by any Borrower Party of its obligations under this Agreement), and (d) any lost profits or indirect, exemplary, punitive or consequential damages of any Indemnified Party. Without limiting the foregoingIn any suit, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to proceeding or resulting from:
(i) any Loan treated as or represented action brought by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) or any of their respective officers under or Lender in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with Collateral for any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreementsum owing thereunder, or with to enforce any Applicable Law with respect to provisions of any Loan comprising a portion Collateral, each Borrower will save, indemnify and hold the Lender harmless from and against all expense, loss or damage suffered by reason of any defense, set-off, counterclaim, recoupment or reduction or liability whatsoever of the Collateralaccount debtor or obligor thereunder, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of a breach by any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan obligation thereunder or the Related Property arising out of any other agreement, indebtedness or liability at any attempt by any Person time owing to void or otherwise avoid any in favor of such transfer under any statutory provision account debtor or common law obligor or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of its successors from the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan and Security Agreement (PennyMac Mortgage Investment Trust), Loan and Security Agreement (PennyMac Mortgage Investment Trust)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable LawThe Borrower agrees to hold the Lender, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing AgentsCustodian, the Collection Account Bank, the Lockbox Account Bank, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee successor servicer and each of Liquidity Provider, and their respective Affiliates and directors, officers, directorsadvisors and employees (each, employees, members and agents thereof (collectively, the an “Indemnified PartiesParty”), forthwith on demand, ) harmless from and indemnify each Indemnified Party against any and all damagesliabilities, losses, claimsdamages, liabilities and related judgments, costs and expensesexpenses of any kind which may be imposed on, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded incurred by or asserted against or incurred by, any such Indemnified Party in any suit, action, claim or other non-monetary damages of any such Indemnified Party any of them proceeding relating to or arising out of or as a result of this Agreement, excludingany other Loan Document, however, Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Collateral or any of their respective officers transaction contemplated hereby or thereby, or any amendment, supplement or modification of, or any waiver or consent under or in connection with respect of, this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with other Loan Document, any term, provision or covenant contained in this Agreement Collateral or any agreement executed in connection with this Agreementtransaction contemplated hereby or thereby, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (Ai) a defense based on any Medallion Loan pledged hereunder not constituting an Eligible Medallion Loan, (ii) the Loan not being a legaloffering or effectuation of any securitization, valid and binding obligation or (iii) the commingling of the proceeds of the Collateral at any time with other funds, except, in each case, to the extent arising from such Indemnified Party’s gross negligence or willful misconduct. In any suit, proceeding or action brought by the Agent or any other Secured Party in connection with any Collateral for any sum owing thereunder, or to enforce any provisions of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the OriginatorCollateral, the Borrower will save, indemnify and hold such Secured Party harmless from and against all expense, loss or damage suffered by reason of any Affiliate thereof to perform its respective duties under defense, set-off, counterclaim, recoupment or reduction or liability whatsoever of the Transferred Loans;
(viii) any products liability claim account debtor or personal injury or property damage suit or other similar or related claim or action of whatever sort obligor thereunder, arising out of a breach by the Borrower of any obligation thereunder or arising out of any other agreement, indebtedness or liability at any time owing to or in connection with merchandise favor of such account debtor or services that are obligor or its successors from the subject of any Transferred Loan Borrower. The Borrower also agrees to reimburse the Agent and the Lender as and when billed by the Agent or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes Lender for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable all of such Person’s reasonable costs and expenses incurred in connection with the Collateral;
enforcement or the preservation of such Person’s rights under this Agreement, any other Loan Document, any Collateral or any transaction contemplated hereby or thereby, including without limitation the reasonable fees and disbursements of its counsel (x) including reasonable fees and disbursements incurred in any repayment action or proceeding between the Borrower and an Indemnified Party or between an Indemnified Party and any third party relating hereto). The Borrower hereby acknowledges that, notwithstanding the fact that the Secured Obligations are secured by the Administrative AgentCollateral, any Managing Agent or each Secured Obligation is a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure recourse obligation of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan and Security Agreement (Medallion Financial Corp), Loan and Security Agreement (Medallion Financial Corp)
Indemnities by the Borrower. (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 that which the Affected Parties, the Secured Parties, the Administrative Agent, the Lenders, the Collateral Agent, the Account Bank, the Collateral Custodian or any such Person of their respective Investment Affiliates may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Affected Parties, the Secured Parties, the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor ServicerLenders, the Collateral CustodianAgent, any Secured Party or its assignee the Account Bank, the Collateral Custodian and each of their respective Affiliates and Investment Affiliates, assigns, officers, directors, employees, members employees and agents thereof (collectivelyeach, the an “Indemnified Parties”)Party” for purposes of this Article VIII) against, forthwith on demandand to hold each Indemnified Party harmless from, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements of (x) one outside counsel to the Administrative Agent and the Lenders, (y) one outside counsel to the Collateral Agent, the Account Bank and the Collateral Custodian, and (z) one counsel per foreign or local jurisdiction (all of the foregoing being collectively referred to as “Indemnified Amounts”) ), awarded against or actually incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of of, in any way connected with, or as a result of this Agreement, excludingany of the other Transaction Documents or in respect of any of the Collateral Portfolio or any claim, howeverlitigation, investigation or proceeding relating to any of the foregoing, including the enforcement of this Agreement or any Transaction Document against the Borrower, regardless of whether any such Indemnified Party is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower or any of its Investment Affiliates or shareholders); provided that Indemnified Amounts shall not be available to an Indemnified Party to the extent resulting that such damages, losses, claims, liabilities and related costs and expenses (i) are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted solely from the gross negligence or willful misconduct on the part of any such Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to Party or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by result from the Borrower, the Servicer (or one uncollectibility of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof due to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor ’s financial inability to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionspay.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 8.01 shall be paid by the Borrower to the Collateral Custodian if the Collateral Custodian is the Indemnified Party or the Administrative Agent on behalf of any other applicable Indemnified Party within two (2) Business Days following the Collateral Custodian or the Administrative Agent’s written demand therefortherefor 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 Collateral Custodian or the Administrative Agent, on behalf of any other Indemnified Party making a request for indemnification under this Section 8.01, shall submit to the Borrower a certificate setting forth 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 9.1 8.01 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmlessharmless in respect of any losses, claims, damages or liabilities, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such losslosses, claimclaims, damage damages or liability 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 Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations
(d) If the Borrower has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 8.01 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Borrower in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(de) The obligations of the Borrower under this Section 9.1 8.01 shall survive the resignation or removal of the Administrative Agent Agent, the Lenders, the Servicer, the Collateral Agent, the Account Bank or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any Managing Agent other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Servicer, the Account Bank or the Collateral Custodian and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (FS KKR Capital Corp), Loan and Servicing Agreement (FS Investment Corp II)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person the Administrative Agent, the Structuring Agent, the Credit Parties, the Affected Persons and their respective assigns, officers, directors, agents and employees (each, a “Borrower Indemnified Party”) may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured each Borrower Indemnified Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all claims, expenses, damages, losses, claims, losses and liabilities and related costs and expenses, (including reasonable attorneys’ fees and disbursements Attorney Costs) (all of the foregoing being collectively referred to as “Borrower Indemnified Amounts”) awarded against arising out of, relating to or incurred byin connection this Agreement or any other Transaction Document or the use of proceeds of the Credit Extensions or the security interest in respect of any Pool Receivable or any other Collateral; excluding, any however, (i) Borrower Indemnified Amounts to the extent a final non-appealable judgment of a court of competent jurisdiction holds that such Borrower Indemnified Amounts resulted solely from the gross negligence or willful misconduct by the Borrower Indemnified Party or seeking indemnification, (ii) Taxes (other than Taxes that represent losses, claims, damages, etc. arising from any non-monetary damages of any such Tax claim) and (iii) Borrower Indemnified Amounts arising from a claim by one Borrower Indemnified Party any of them arising out of against another Borrower Indemnified Party (other than actions against the Administrative Agent in its capacity as Administrative Agent or similar capacity or as a result of this Agreement, excluding, however, Indemnified Amounts to the extent resulting from gross negligence actions or willful misconduct on inaction of the part of any Indemnified PartyBorrower). Without limiting or being limited by the foregoing, the Borrower shall pay, without duplication, on demand (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 4.01), to each Borrower Indemnified Party any and all amounts necessary to indemnify the such Borrower Indemnified Parties for Party from and against any and all Borrower Indemnified Amounts relating to or resulting from:from any of the following (but excluding Borrower Indemnified Amounts and Taxes described in clauses (i), (ii) and (iii) above):
(i) any Loan treated as or represented by Pool Receivable which the Borrower to be or the Servicer includes as an Eligible Loan that Receivable as part of the Net Receivables Pool Balance but which is not at the applicable time an Eligible LoanReceivable at such time;
(ii) reliance on any representation representation, warranty or warranty statement made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their its respective officers officers) under or in connection with this Agreement, any of the other Transaction Documents, any Pool Report or any other information or report delivered by or on behalf of the Borrower pursuant hereto which shall have been false untrue or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, Pool Receivable or the nonconformity related Contract; or the failure of any Loan, Pool Receivable or the Related Property with related Contract to conform to any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in all or any portion of the Collateral, in each case free and clear of any Adverse Claim;
(v) the failure to filehave filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable and the other Collateral and Collections in respect thereof, whether at the time of any Advance Credit Extension or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset claim or defense (other than the discharge in bankruptcy of the Obligorbankruptcy) of the an Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Pool Receivable (including, without limitation, (A) a defense based on such Pool Receivable or the Loan related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) the equitable subordination of any other claim resulting from or relating to collection activities with respect to such Loan)Pool Receivable;
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform any of its duties or obligations in accordance with the provisions hereof and of this Agreement each other Transaction Document related to Pool Receivables or any failure by to timely and fully comply with the Originator, the Borrower or any Affiliate thereof Credit and Collection Policy in regard to perform its respective duties under the Transferred Loanseach Pool Receivable;
(viii) any products liability claim or personal injury or property damage suit liability, environmental or other similar or related claim or action of whatever sort arising out of or in connection with merchandise any Pool Receivable or other merchandise, goods or services that which are the subject of or related to any Transferred Loan or the Related PropertyPool Receivable;
(ix) the misdirection of Collections or the commingling of Collections of Pool Receivables at any time with other funds;
(x) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or the use of proceeds of any Credit Extensions or in respect of any Pool Receivable or other Collateral or any related Contract;
(xi) any failure of the Borrower to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(xii) any offset, setoff, adjustment, or other non-cash reduction of any Pool Receivable (including Deemed Collections) not arising from the bankruptcy or insolvency, lack of creditworthiness or other financial default or inability to pay of the related Obligor;
(xiii) any claim brought by any Person other than a Borrower Indemnified Party arising from any activity by the Borrower or any Affiliate of the Borrower in servicing, administering or collecting any Pool Receivable;
(xiv) the failure by the Borrower to pay when due any Taxes for which the Borrower is liableTaxes, including including, without limitation, sales, excise or personal property taxes payable in connection with the Collateraltaxes;
(xxv) any repayment failure of a Collection Account Bank to comply with the terms of the applicable Account Control Agreement, the termination by a Collection Account Bank of any Account Control Agreement or any amounts (including in respect of an indemnity) payable by the Administrative AgentAgent to a Collection Account Bank under any Account Control Agreement;
(xvi) any dispute, any Managing Agent claim, offset or a Secured Party defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any amount previously distributed Pool Receivable (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in reduction of Advances Outstanding or payment of Interest accordance with its terms), or any other amount due hereunder claim resulting from the sale of goods or under the rendering of services related to such Pool Receivable or the furnishing or failure to furnish any Hedging Agreement, in each case which amount such goods or services or other similar claim or defense not arising from the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required financial inability of any Obligor to be repaidpay undisputed indebtedness;
(xixvii) any investigationaction taken by the Administrative Agent as attorney-in-fact for the Borrower, litigation any Originator or proceeding related the Servicer pursuant to this Agreement or any other Transaction Document;
(xviii) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness related to a Pool Receivable;
(xix) the maintenance of any Linked Account with respect to any Collection Account or the debiting against any Collection Account of amounts as a result of any settlement item that originated in any Linked Account or any other account other than a Collection Account;
(xx) the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, Credit Extension; or
(xiiixxi) the failure any reduction in Principal as a result of the Borrower, the Originator distribution of Collections if all or a portion of such distributions shall thereafter be rescinded or otherwise must be returned for any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsreason.
(b) Any amounts subject Notwithstanding anything to the contrary in this Agreement, solely for purposes of the Borrower’s indemnification provisions obligations in clauses (ii), (iii), (vii) and (xi) of this Section 9.1 12.01(a), any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be paid by the Borrower deemed to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand thereforbe not so qualified.
(c) If for any reason the foregoing indemnification provided above in this Section 9.1 is unavailable to the any Borrower Indemnified Party or is insufficient to hold an Indemnified Party it harmless, then the Borrower, Borrower shall contribute to such Borrower Indemnified Party the amount paid or payable by such Borrower Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party economic interests of the Borrower and its Affiliates on the one hand and the Borrower, such Borrower Indemnified Party on the other hand but also in the matters contemplated by this Agreement as well as the relative fault of the Borrower and its Affiliates and such Borrower Indemnified Party as well as with respect to such loss, claim, damage or liability and any other relevant equitable considerations.
(d) . The reimbursement, indemnity and contribution obligations of the Borrower under this Section 9.1 12.01 shall be in addition to any liability which the Borrower may otherwise have, shall extend upon the same terms and conditions to each Borrower Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Borrower and the Borrower Indemnified Parties.
(d) Any indemnification or contribution under this Section 12.01 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Receivables Financing Agreement (Sylvamo Corp), Receivables Financing Agreement (Sylvamo Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person the Administrative Agent, the Credit Parties, the Affected Persons and their respective assigns, officers, directors, agents and employees (each, a “Borrower Indemnified Party”) may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured each Borrower Indemnified Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, losses and liabilities and related costs and expenses, (including reasonable attorneys’ fees and disbursements Attorney Costs) (all of the foregoing being collectively referred to as “Borrower Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result resulting from this Agreement or any other Transaction Document or the use of this Agreement, proceeds of the Credit Extensions or the security interest in respect of any Pool Receivable or any other Collateral; excluding, however, (a) Borrower Indemnified Amounts to the extent resulting a final non-appealable judgment of a court of competent jurisdiction holds that such Borrower Indemnified Amounts resulted primarily from the bad faith, gross negligence or willful misconduct on by the part Borrower Indemnified Party seeking indemnification, (b) Taxes (other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim) and (c) Borrower Indemnified Amounts arising from a claim by one Borrower Indemnified Party against another Borrower Indemnified Party (other than actions against the Administrative Agent in its capacity as Administrative Agent or similar capacity and also excluding any action, claim or dispute involving the Borrower or any of its Affiliates or resulting from any Indemnified Partyaction or inaction by the Borrower or any of its Affiliates). Without limiting or being limited by the foregoing, the Borrower shall pay on written demand (which demand shall be accompanied by documentation of the Borrower Indemnified Amounts in reasonable detail) (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 4.01), to each Borrower Indemnified Party any and all amounts necessary to indemnify the such Borrower Indemnified Parties for Party from and against any and all Borrower Indemnified Amounts relating to or resulting from:from any of the following (but excluding Borrower Indemnified Amounts and Taxes described in clauses (a), (b) and (c) above):
(i) any Loan treated as or represented by Pool Receivable which the Borrower to be or the Servicer includes as an Eligible Loan that Receivable as part of the Net Receivables Pool Balance but which is not at the applicable time an Eligible LoanReceivable at such time;
(ii) reliance on any representation written representation, warranty or warranty statement made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their its respective officers officers) under or in connection with this Agreement, any of the other Transaction Documents, any Information Package, any Weekly Report, any Daily Report or any other written information or report (other than projections, forward-looking statements and information of a general economic or industry nature) delivered by or on behalf of the Borrower pursuant hereto which shall have been false untrue or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, Pool Receivable or the nonconformity related Contract; or the failure of any Loan, Pool Receivable or the Related Property with related Contract to conform to any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in all or any portion of the Collateral, in each case free and clear of any Adverse Claim;
(v) the failure to filehave filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable and the other Collateral and Collections in respect thereof, whether at the time of any Advance Credit Extension or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset claim or defense (other than the discharge in bankruptcy of the Obligorbankruptcy) of the an Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Pool Receivable (including, without limitation, (A) a defense based on such Pool Receivable or the Loan related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) the equitable subordination of any other claim resulting from or relating to collection activities with respect to such Loan)Pool Receivable;
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform any of its duties or obligations in accordance with the provisions hereof and of this Agreement each other Transaction Document related to Pool Receivables or any failure by to timely and fully comply with the Originator, the Borrower or any Affiliate thereof Credit and Collection Policy in regard to perform its respective duties under the Transferred Loanseach Pool Receivable;
(viii) any products liability claim or personal injury or property damage suit liability, environmental or other similar or related claim or action of whatever sort arising out of or in connection with merchandise any Pool Receivable or other merchandise, goods or services that which are the subject of or related to any Transferred Loan or the Related PropertyPool Receivable;
(ix) the failure by Borrower to pay when due misdirection of Collections or the commingling of Collections of Pool Receivables at any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection time with the Collateralother funds;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or the use of proceeds of Advances any Credit Extensions or in respect of any Transferred Loan Pool Receivable or other Collateral or any related Contract;
(xi) any failure of the Related PropertyBorrower to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(xii) any setoff with respect to any Pool Receivable;
(xiii) any claim brought by any Person other than a Borrower Indemnified Party arising from any activity by the Borrower or the Servicer (if an Affiliate of the Borrower) in servicing, administering or collecting any Pool Receivable;
(xiv) [reserved];
(xv) any failure of a Collection Account Bank to comply with the terms of the applicable Account Control Agreement, the termination by a Collection Account Bank of any Account Control Agreement or any amounts (including in respect of an indemnity) payable by the Administrative Agent to a Collection Account Bank under any Account Control Agreement;
(xvi) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Pool Receivable (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to such Pool Receivable or the furnishing or failure to furnish any such goods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(xvii) any action taken by the Administrative Agent as attorney-in-fact for the Borrower, any Originator or the Servicer pursuant to this Agreement or any other Transaction Document;
(xviii) the failure or delay to provide any Obligor with an invoice or other statement evidencing amounts owed under each applicable Pool Receivable;
(xix) the maintenance of any Linked Account with respect to any Collection Account or the debiting against any Collection Account of amounts as a result of any settlement item that originated in any Linked Account or any other account other than a Collection Account;
(xx) the use of proceeds of any Credit Extension;
(xxi) any reduction in Capital as a result of the distribution of Collections if all or a portion of such distributions shall thereafter be rescinded or otherwise must be returned for any reason;
(xxii) any failure by the Borrower to give reasonably equivalent value to pay any premium or other amount when due under the Originator in consideration for the transfer by the Originator to the Borrower terms of any Transferred Loan Credit Insurance Policy, to keep any Credit Insurance Policy in force or the Related Property to make or perfect any attempt by any Person to void or otherwise avoid any such transfer claim for reimbursement under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, Credit Insurance Policy; or
(xiiixxiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or insurance premium payments paid by the Administrative Agent, Collections Agent on the Collateral remitted to the Borrower or any such agent or representative Credit Insurance Policy in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsthis Agreement.
(b) Any amounts subject Notwithstanding anything to the contrary in this Agreement, solely for purposes of the Borrower’s indemnification provisions obligations in clauses (ii), (iii), (vii) and (xi) of this Section 9.1 13.01, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be paid by the Borrower deemed to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand thereforbe not so qualified.
(c) If for any reason the foregoing indemnification provided above in this Section 9.1 is unavailable to the any Borrower Indemnified Party or is insufficient to hold an Indemnified Party it harmless, then the Borrower, Borrower shall contribute to such Borrower Indemnified Party the amount paid or payable by such Borrower Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party economic interests of the Borrower and its Affiliates on the one hand and the Borrower, such Borrower Indemnified Party on the other hand but also in the matters contemplated by this Agreement as well as the relative fault of the Borrower and its Affiliates and such Borrower Indemnified Party as well as with respect to such loss, claim, damage or liability and any other relevant equitable considerations.
(d) . The reimbursement, indemnity and contribution obligations of the Borrower under this Section 9.1 13.01 shall be in addition to any liability which the Borrower may otherwise have, shall extend upon the same terms and conditions to each Borrower Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Borrower and the Borrower Indemnified Parties.
(d) Any indemnification or contribution under this Section 13.01 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Receivables Financing Agreement (EnLink Midstream, LLC), Receivables Financing Agreement (EnLink Midstream Partners, LP)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person the Administrative Agent, the Credit Parties, the Affected Persons and their respective assigns, officers, directors, agents and employees (each, a “Borrower Indemnified Party”) may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured each Borrower Indemnified Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, losses and liabilities and related costs and expenses, (including reasonable attorneys’ fees and disbursements Attorney Costs) (all of the foregoing being collectively referred to as “Borrower Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result resulting from this Agreement or any other Transaction Document or the use of proceeds of the Credit Extensions or the security interest in respect of any Pool Receivable or any other Collateral. Subject to the provisions of this AgreementSection 12.01, excluding, however, Indemnified Amounts to including the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Party. Without limiting the foregoingexclusions and qualifications set forth herein, the Borrower shall pay on demand (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 3.01), to each Borrower Indemnified Party any and all amounts necessary to indemnify the such Borrower Indemnified Parties for Party from and against any and all Borrower Indemnified Amounts relating to or resulting fromfrom any of the following:
(i) any Loan treated as or represented by Pool Receivable which the Borrower to be or the Servicer includes as an Eligible Loan that Receivable as part of the Net Receivables Pool Balance but which is not at the applicable time an Eligible LoanReceivable at such time;
(ii) reliance on any representation representation, warranty or warranty statement made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their its respective officers officers) under or in connection with this Agreement, any of the other Transaction Documents, any Information Package, Interim Report or any other information or report delivered by or on behalf of the Borrower pursuant hereto which shall have been false untrue or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, Pool Receivable or the nonconformity related Contract; or the failure of any Loan, Pool Receivable or the Related Property with related Contract to conform to any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in all or any portion of the Collateral, in each case free and clear of any Adverse Claim; provided, that, with respect to any Borrower Indemnified Amounts arising as a result of an Adverse Claim related to the Affected Filings prior to Borrower’s (or Servicer’s on Borrower’s behalf) compliance with the covenants set forth in Section 7.01(y), the definition of Adverse Claim shall be deemed to exclude the last clause of the definition of Adverse Claim;
(v) the failure to filehave filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable and the other Collateral and Collections in respect thereof, whether at the time of any Advance Credit Extension or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset claim or defense of an Obligor (not arising from the bankruptcy or insolvency, lack of creditworthiness or other than the discharge in bankruptcy financial default or inability to pay of the related Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Pool Receivable (including, without limitation, (A) a defense based on such Pool Receivable or the Loan related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) the equitable subordination of any other claim resulting from or relating to collection activities with respect to such Loan)Pool Receivable;
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform any of its duties or obligations in accordance with the provisions hereof and of this Agreement each other Transaction Document related to Pool Receivables or any failure by to timely and fully comply with the Originator, the Borrower or any Affiliate thereof Credit and Collection Policy in regard to perform its respective duties under the Transferred Loanseach Pool Receivable;
(viii) any products liability claim or personal injury or property damage suit liability, environmental or other similar or related claim or action of whatever sort arising out of or in connection with merchandise any Pool Receivable or other merchandise, goods or services that which are the subject of or related to any Transferred Loan or the Related PropertyPool Receivable;
(ix) the failure by Borrower to pay when due commingling of Collections of Pool Receivables at any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection time with the Collateralother funds;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or the use of proceeds of Advances any Credit Extensions or in respect of any Transferred Loan Pool Receivable or other Collateral or any related Contract;
(xi) any failure of the Related PropertyBorrower to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower offset, setoff, adjustment, or other non-cash reduction of any Transferred Loan Pool Receivable (including Deemed Collections) not arising from the bankruptcy or the Related Property insolvency, lack of creditworthiness or any attempt by any Person other financial default or inability to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision pay of the Bankruptcy Code, orrelated Obligor;
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the claim brought by any Person other than a Borrower or Indemnified Party arising from any such agent or representative in accordance with the terms hereof or the commingling activity by the Borrower or any Affiliate of the Borrower in servicing, administering or collecting any collectionsPool Receivable;
(xiv) any failure of a Collection Account Bank to comply with the terms of the applicable Account Control Agreement, the termination by a Collection Account Bank prior to the appointment of a successor collection account bank or any amounts payable by the Administrative Agent to a Collection Account Bank under any Account Control Agreement;
(xv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Pool Receivable (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to such Pool Receivable or the furnishing or failure to furnish any such goods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(xvi) any action taken by the Administrative Agent as attorney-in-fact for the Borrower, any Originator or the Servicer pursuant to this Agreement or any other Transaction Document;
(xvii) the use of proceeds of any Credit Extension;
(xviii) any reduction in Capital as a result of the distribution of Collections if all or a portion of such distributions shall thereafter be rescinded or otherwise must be returned for any reason; or
(xix) any failure by any Originator to provide an Obligor with an invoice evidencing indebtedness related to a Pool Receivable.
(b) Any amounts subject Notwithstanding anything to the contrary in this Agreement, solely for purposes of the Borrower’s indemnification provisions obligations in clauses (ii), (iii), (vii) and (xi) of this Section 9.1 Article XII, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality shall be paid by the Borrower deemed to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand thereforbe not so qualified.
(c) The indemnities in Section 12.01(a) shall not apply to any claims for indemnification of any Borrower Indemnified Party to the extent such claims (i) are found in a final and non-appealable judgment of a court of competent jurisdiction to have resulted from the willful misconduct, bad faith or gross negligence of such Borrower Indemnified Party, (ii) result from a claim brought by the Borrower, any Originator, the Servicer or the Performance Guarantor, or any of their respective Subsidiaries, against such Borrower Indemnified Party for material breach of such Borrower Indemnified Party’s obligations under this Agreement if the Borrower, such Originator, the Servicer, the Performance Guarantor or such Subsidiary has obtained a final and non-appealable judgment in its favor on such claim as determined by a court of competent jurisdiction, (iii) result from a proceeding that does not involve an act or omission by the Borrower, any Originator, the Servicer, the Performance Guarantor or any of their respective Subsidiaries and that is brought by a Borrower Indemnified Party against any other Borrower Indemnified Party (other than Borrower Indemnified Amounts against any agent in its capacity or in fulfilling its roles as an agent hereunder or any similar role with respect to this Agreement or any Commitments), (iv) are for Borrower Indemnified Amounts to the extent the same includes losses in respect of Pool Receivables that are uncollectible on account of the bankruptcy or insolvency, lack of creditworthiness or other financial default or inability to pay of the related Obligor or (v) are for Taxes (which are covered by Section 4.03). In the case of an investigation, litigation or other proceeding to which the indemnity in Section 12.01(a) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Borrower, the Servicer, the Performance Guarantor, or any of their respective Subsidiaries, directors, equityholders or creditors or a Borrower Indemnified Party or any other Person, whether or not any Borrower Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated.
(d) If for any reason the foregoing indemnification provided above in this Section 9.1 is unavailable to the any Borrower Indemnified Party or is insufficient to hold an Indemnified Party it harmless, then the Borrower, Borrower shall contribute to such Borrower Indemnified Party the amount paid or payable by such Borrower Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party economic interests of the Borrower and its Affiliates on the one hand and the Borrower, such Borrower Indemnified Party on the other hand but also in the matters contemplated by this Agreement as well as the relative fault of the Borrower and its Affiliates and such Borrower Indemnified Party as well as with respect to such loss, claim, damage or liability and any other relevant equitable considerations.
(d) . The reimbursement, indemnity and contribution obligations of the Borrower under this Section 9.1 shall be in addition to any liability which the Borrower may otherwise have, shall extend upon the same terms and conditions to each Borrower Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Borrower and the Borrower Indemnified Parties.
(e) Any indemnification or contribution under this Section shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Receivables Financing Agreement (OLIN Corp), Receivables Financing Agreement (Olin Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person the Administrative Agent, the Credit Parties, the Affected Persons and their respective assigns, officers, directors, agents and employees (each, a “Borrower Indemnified Party”) may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured each Borrower Indemnified Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, losses and liabilities and related costs and expenses, (including reasonable attorneys’ fees and disbursements Attorney Costs) (all of the foregoing being collectively referred to as “Borrower Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result resulting from this Agreement or any other Transaction Document or the use of this Agreement, proceeds of the Credit Extensions or the security interest in respect of any Pool Receivable or any other Collateral; excluding, however, (a) any portion of Borrower Indemnified Amounts to the extent resulting a final non-appealable judgment of a court of competent jurisdiction holds that such portion of such Borrower Indemnified Amounts resulted from the bad faith, gross negligence or willful misconduct on by the part of Borrower Indemnified Party seeking indemnification and (b) Taxes other than as described in clause (xiv) below or Taxes that represent losses, claims or damages arising from any Indemnified Partynon-Tax claim. Without limiting or being limited by the foregoing, the Borrower shall pay on demand (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 4.01), to each Borrower Indemnified Party any and all amounts necessary to indemnify the such Borrower Indemnified Parties for Party from and against any and all Borrower Indemnified Amounts relating to or resulting from:from any of the following (but excluding Borrower Indemnified Amounts and Taxes described in clause (b) above):
(i) any Loan treated as or represented by Pool Receivable which the Borrower to be or the Servicer includes as an Eligible Loan that Receivable as part of the Net Receivables Pool Balance but which is not at the applicable time an Eligible LoanReceivable at such time;
(ii) reliance on any representation representation, warranty or warranty statement made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their its respective officers officers) under or in connection with this Agreement, any of the other Transaction Documents, any Monthly Report, any Interim Report or any other information or report delivered by or on behalf of the Borrower pursuant hereto which shall have been false untrue or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, Pool Receivable or the nonconformity related Contract; or the failure of any Loan, Pool Receivable or the Related Property with related Contract to conform to any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in all or any portion of the Collateral, in each case free and clear of any Lien;
(v) the failure to filehave filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable and the other Collateral and Collections in respect thereof, whether at the time of any Advance Credit Extension or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset claim or defense (other than the discharge in bankruptcy of the Obligorbankruptcy) of the an Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Pool Receivable (including, without limitation, (A) a defense based on such Pool Receivable or the Loan related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) the equitable subordination of any other claim resulting from or relating to collection activities with respect to such Loan)Pool Receivable;
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform any of its duties or obligations in accordance with the provisions hereof and of this Agreement each other Transaction Document related to Pool Receivables or any failure by to timely and fully comply with the Originator, the Borrower or any Affiliate thereof Credit and Collection Policy in regard to perform its respective duties under the Transferred Loanseach Pool Receivable;
(viii) any products liability claim or personal injury or property damage suit liability, environmental or other similar or related claim or action of whatever sort arising out of or in connection with merchandise any Pool Receivable or other merchandise, goods or services that which are the subject of or related to any Transferred Loan or the Related PropertyPool Receivable;
(ix) the commingling of Collections of Pool Receivables at any time with other funds;
(x) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or the use of proceeds of any Credit Extensions or in respect of any Pool Receivable or other Collateral or any related Contract;
(xi) any failure of the Borrower to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(xii) any setoff with respect to any Pool Receivable;
(xiii) any claim brought by any Person other than a Borrower Indemnified Party arising from any activity by the Borrower or any Affiliate of the Borrower in servicing, administering or collecting any Pool Receivable;
(xiv) the failure by the Borrower to pay when due any Taxes for which the Borrower is liabletaxes, including including, without limitation, sales, excise or personal property taxes payable in connection with the Collateraltaxes;
(xxv) any repayment failure of a Collection Account Bank to comply with the terms of the applicable Account Control Agreement, the termination by a Collection Account Bank of any Account Control Agreement or any amounts (including in respect of an indemnity) payable by the Administrative Agent, Agent to a Collection Account Bank under any Managing Agent or a Secured Party Account Control Agreement;
(xvi) the maintenance of any amount previously distributed Linked Account with respect to any Collection Account or the debiting against any Collection Account of amounts as a result of any “Settlement Item” that originated in reduction of Advances Outstanding or payment of Interest any Linked Account or any other amount due hereunder account other than a Collection Account;
(xvii) any dispute, claim, offset or under defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Hedging AgreementPool Receivable (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim in each case which amount resulting from the Administrative Agent, sale of goods or the rendering of services related to such Managing Agent Pool Receivable or a Secured Party believes in good faith is required the furnishing or failure to be repaidfurnish any such goods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(xixviii) any investigationaction taken by the Administrative Agent as attorney-in-fact for the Borrower, litigation any Originator or proceeding related the Servicer pursuant to this Agreement or any other Transaction Document;
(xix) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(xx) the use of proceeds of Advances any Credit Extension or in respect the usage of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower Letter of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, Credit; or
(xiiixxi) the failure any reduction in Capital as a result of the Borrower, the Originator distribution of Collections if all or a portion of such distributions shall thereafter be rescinded or otherwise must be returned for any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsreason.
(b) Any amounts subject Notwithstanding anything to the contrary in this Agreement, solely for purposes of the Borrower’s indemnification provisions obligations in clauses (ii), (iii), (vii) and (xi) of this Section 9.1 Article XII, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be paid by the Borrower deemed to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand thereforbe not so qualified.
(c) If for any reason the foregoing indemnification provided above in this Section 9.1 is unavailable (other than pursuant to the exclusions contained in Section 12.01(a)) to any Borrower Indemnified Party or is insufficient to hold an Indemnified Party it harmless, then the Borrower, Borrower shall contribute to such Borrower Indemnified Party the amount paid or payable by such Borrower Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party economic interests of the Borrower and its Affiliates on the one hand and the Borrower, such Borrower Indemnified Party on the other hand but also in the matters contemplated by this Agreement as well as the relative fault of the Borrower and its Affiliates and such Borrower Indemnified Party as well as with respect to such loss, claim, damage or liability and any other relevant equitable considerations.
(d) . The reimbursement, indemnity and contribution obligations of the Borrower under this Section 9.1 shall be in addition to (but without duplication of) any liability which the Borrower may otherwise have, shall extend upon the same terms and conditions to each Borrower Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Borrower and the Borrower Indemnified Parties.
(d) Any indemnification or contribution under this Section shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Receivables Financing Agreement (BrightView Holdings, Inc.), Receivables Financing Agreement (BrightView Holdings, Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that which the Agent, the Lender, the Backup Servicer or any such Person of their respective Affiliates may have hereunder or under Applicable Lawapplicable law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing AgentsLender, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee Servicer and each of their respective Affiliates and officers(each, directors, employees, members and agents thereof (collectively, the an “Indemnified Parties”), forthwith on demand, Party” for purposes of this Article VIII) 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 “Indemnified Amounts”) ), awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party by any of them arising out of or as a result of this AgreementAgreement or in respect of any Pledged Assets, excluding, however, Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of any an Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts relating to or resulting from:from any of the following (to the extent not resulting from gross negligence or willful misconduct on the part of an Indemnified Party or, in the case of the Lender, from the gross negligence or willful misconduct of the Agent):
(i) any Loan Pledged Receivable treated as or represented by the Borrower to be an Eligible Loan that Receivable which is not at the applicable time an Eligible LoanReceivable;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (EEF or one of its Affiliates) Affiliates or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) EEF to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law applicable law, rule or regulation with respect to any Loan comprising a portion of the CollateralPledged Assets, or the nonconformity of any Loan, the Related Property Pledged Assets with any such Applicable Law applicable law, rule or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateralregulation;
(iv) the failure to vest and maintain vested in the Administrative Agent Agent, for the benefit of the Lender, or to transfer to the Agent, for the benefit of the Lender, a first priority priority, perfected security interest in the CollateralReceivables which are, or are purported to be, Pledged Receivables, together with all related Other Conveyed Property, Collections, Related Security and other Pledged Assets related thereto, free and clear of any Adverse Claim whether existing at the time of the related Borrowing or at any time thereafter;
(v) the failure to maintain, as of the close of business on each Business Day prior to the Collection Date, an aggregate amount of Loans outstanding which is less than or equal to the lesser of (x) the Borrowing Limit on such Business Day and (y) the Capital Limit on such Business Day;
(vi) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws applicable laws with respect to any Collateral Receivables which are, or are purported to be, Pledged Receivables or the other Pledged Assets related thereto, whether at the time of any Advance Borrowing or at any subsequent time and as required by the Transaction Documentstime;
(vivii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the an Obligor) of the Obligor to the payment of any Transferred Loan that Receivable which is, or is purported to be, an Eligible Loan a Pledged Receivable (including, without limitation, (A) a defense based on such Receivable (or the Loan Contract evidencing such Receivable) not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(viiviii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) Borrower, including due to noncompliance by a Servicer, to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related PropertyAgreement;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the CollateralPledged Receivables or the Pledged Assets related thereto;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party the Lender of any amount previously distributed in reduction payment of Advances Outstanding Loans or payment of Interest Yield or Fees or any other amount due hereunder or under any Hedging Agreementhereunder, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party the Lender believes in good faith is required to be repaid;
(xi) the commingling of Collections of Pledged Receivables at any time with other funds;
(xii) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan Loans or the Related PropertyPledged Assets;
(xiixiii) any failure by the Borrower to give reasonably equivalent value to the Originator EEF in consideration for the transfer by the Originator EEF to the Borrower of any Transferred Loan or the Related Property Receivable or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or;
(xiiixiv) the any failure of the Borrower, the Originator or any of their respective its agents or representatives to remit to the Servicer or the Administrative Agent, Collections of Pledged Receivables; and/or
(xv) any failure on the Collateral remitted to part of the Borrower or EEF duly to observe or perform in any such agent material respect any covenant or representative in accordance with the terms hereof or the commingling by the Borrower or agreement under any Affiliate of any collections.
(b) Qualifying Interest Rate Hedge. Any amounts subject to the indemnification provisions of this Section 9.1 8.01 shall be paid by the Borrower to the applicable Indemnified Party Agent within two (2) Business Days following the Administrative Agent’s written demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable . Each applicable Indemnified Party shall deliver to the Indemnified Party or is insufficient to hold an Indemnified Party harmlessindemnifying party under Section 8.01, then the Borrower, shall contribute to the amount paid or payable by within a reasonable time after such Indemnified Party as a result Party’s receipt thereof, copies of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits all notices and documents (including court papers) received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse relating to the Borrower against loss by reason of claim giving rise to the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred LoanIndemnified Amounts.
Appears in 2 contracts
Samples: Receivables Loan and Security Agreement (Mru Holdings Inc), Receivables Loan and Security Agreement (Mru Holdings Inc)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Servicer (including in its capacity as Successor Servicer, if applicable), the Collateral CustodianTrustee, any other Secured Party or its assignee and each of their respective Affiliates and officers, directors, employees, members employees and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 “Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this Agreement, excluding, however, (a) Indemnified Amounts to the extent resulting from fraud, gross negligence or willful misconduct on the part of any Indemnified Party, and (b) under any Federal, state or local income or franchise taxes or any other Tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by such Indemnified Party in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by the applicable Indemnified Party subject to the limitations hereof. If the Borrower has made any indemnity payment pursuant to this Section 10.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts, the recipient shall repay to the Borrower an amount equal to the amount it has collected from others in respect of such indemnified amounts. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Transferred Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Transferred Loan comprising a portion of the Collateral, or the nonconformity of any Transferred Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent Trustee on behalf of the Secured Parties a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the an Obligor to the payment of any Transferred Loan included as part of the Collateral that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Transferred Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) any products liability claim or environmental 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 the Related Property, merchandise or services that are the subject of any Transferred Loan included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a another Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a another Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, ; or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 10.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) 10 Business Days following the Administrative Agentsuch Person’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 10.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 10.1 shall survive the removal of the Administrative Agent Agent, the Backup Servicer or any Managing Agent the Trustee and the execution, delivery, performance and termination of this AgreementAgreement for a period of three years following the Termination Date, regardless of any investigation made by the Lenders or the Agent.
(e) The parties hereto agree that the provisions of this Section 9.1 10.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy bankruptcy, insolvency or insolvency (or other credit condition) of, or default by, lack of creditworthiness of an Obligor on, on any Transferred Loan.
Appears in 2 contracts
Samples: Loan Funding and Servicing Agreement (Kohlberg Capital CORP), Loan Funding and Servicing Agreement (Kohlberg Capital CORP)
Indemnities by the Borrower. (a) Without limiting any other rights that which the Affected Parties, the Secured Parties, the Administrative Agent, the Lender, the Collateral Agent, the Bank, the Collateral Custodian or any such Person of their respective Affiliates may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Affected Parties, the Secured Parties, the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor ServicerLender, the Collateral CustodianAgent, any Secured Party or its assignee the Bank, the Collateral Custodian and each of their respective Affiliates and Affiliates, assigns, officers, directors, employees, members employees and agents thereof (collectivelyeach, the an “Indemnified Parties”), forthwith on demand, Party” for purposes of this Article VIII) 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 “Indemnified Amounts”) ), awarded against or actually incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this AgreementAgreement or in respect of any of the Collateral Portfolio, excluding, however, Indemnified Amounts to the extent resulting solely from (x) gross negligence negligence, bad faith or willful misconduct on the part of an Indemnified Party or (y) the uncollectability of any Indemnified PartyLoan Asset due to the Obligor’s failure to pay any amounts due under the applicable Loan Agreement in accordance with its terms. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts relating to or resulting from:from any of the following (to the extent not resulting from the conditions set forth in (x) or (y) above):
(i) any Loan Asset treated as or represented by the Borrower to be an Eligible Loan that Asset which is not at the applicable time an Eligible LoanLoan Asset, or the purchase by any party or origination of any Loan Asset which violates Applicable Law;
(ii) the reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (if Ares or one of its AffiliatesAffiliates is the Servicer) or any of their respective officers under or in connection with this AgreementAgreement or any Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (if Ares or one of its AffiliatesAffiliates is the Servicer) to comply with any material term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion item of the CollateralCollateral Portfolio, or the nonconformity of any Loan, the Related Property item of Collateral Portfolio with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent Collateral Agent, for the benefit of the Secured Parties, a first priority perfected security interest in the CollateralCollateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or at any time thereafter;
(v) on each Business Day prior to the Collection Date, the occurrence of a Borrowing Base Deficiency and the same continues unremedied for five Business Days;
(vi) the failure to file, or any delay in filing, UCC financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws Law with respect to any Loan Assets included in the Collateral Portfolio or the other Portfolio Assets related thereto, whether at the time of any Advance or at any subsequent time and as required by the Transaction Documentstime;
(vivii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the an Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Asset included in the Collateral Portfolio (including, without limitation, (A) a defense based on such Loan Asset (or the Loan Agreement evidencing such Loan Asset) not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) any other claim resulting from the equitable subordination sale of the merchandise or services related to such Loan)Collateral Portfolio or the furnishing or failure to furnish such merchandise or services;
(viiviii) any failure of the Borrower or the Servicer (if the Originator Ares or one of its AffiliatesAffiliates is the Servicer) to perform its duties or obligations in accordance with the provisions of this Agreement the Transaction Documents to which it is a party or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loansin respect of any Collateral Portfolio;
(viiiix) any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Borrower or the Transferor to qualify to do business or file any notice or business activity report or any similar report;
(x) any action taken by the Borrower or the Servicer in the enforcement or collection of the Collateral Portfolio, which results in any claim, suit or action of any kind pertaining to the Collateral Portfolio or which reduces or impairs the rights of the Administrative Agent or the Lender with respect to any Loan Asset or the value of any such Loan Asset;
(xi) 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 merchandise the Underlying Collateral or services that are the subject of any Transferred Loan or the Related PropertyCollateral Portfolio;
(ixxii) any claim, suit or action of any kind arising out of or in connection with Environmental Laws, including without limitation any vicarious liability;
(xiii) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including including, without limitation, sales, excise or personal property taxes Taxes payable in connection with the CollateralCollateral Portfolio;
(xxiv) any repayment by the Administrative Agent, any Managing Agent the Lender or a Secured Party of any amount previously distributed in reduction payment of Advances Outstanding or payment of Interest Yield or Fees or any other amount due hereunder or under any Hedging Agreementhereunder, in each case which amount the Administrative Agent, such Managing Agent the Lender or a Secured Party believes in good faith is required to be repaid;
(xixv) the commingling by the Borrower or the Servicer of payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;
(xvi) any investigation, litigation or proceeding related to this Agreement (or the Transaction Documents), or the use of proceeds of Advances or in respect of any Transferred Loan the Collateral Portfolio, or the Related Propertyadministration of the Loan Assets by the Borrower or the Servicer (unless such administration is carried out by SMBC or any of its Affiliates in the capacity of the Replacement Servicer or any other Replacement Servicer, if applicable);
(xiixvii) any failure by the Borrower to give reasonably equivalent value to the Originator Transferor in consideration for the transfer by the Originator Transferor to the Borrower of any Transferred Loan or the Related Property item of Collateral Portfolio or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, including without limitation, limitation any provision of the Bankruptcy Code, or;
(xiiixviii) the use of the proceeds of any Advance in a manner other than as provided in this Agreement and the Transaction Documents; and/or
(xix) any failure of the Borrower, the Originator Servicer or any of their respective agents or representatives to remit to the Servicer or the Administrative AgentCollection Account within two Business Days of receipt, Collections on payments and collections with respect to the Collateral Portfolio remitted to the Borrower Borrower, the Servicer or any such agent or representative in accordance with (other than such a failure on the terms hereof or the commingling by the Borrower part of SMBC or any Affiliate of its Affiliates in the capacity of the Replacement Servicer or any collectionsother Replacement Servicer, if applicable).
(b) Any amounts subject to the indemnification provisions of this Section 9.1 8.01 shall be paid by the Borrower to the Administrative Agent on behalf of the applicable Indemnified Party within two (2) five Business Days following receipt by the Borrower of the Administrative Agent’s written demand therefortherefor 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 8.01, shall submit to the 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 9.1 8.01 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmlessharmless in respect of any losses, claims, damages or liabilities, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such losslosses, claimclaims, damage damages or liability 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 Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) If the Borrower has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 8.01 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Borrower in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The obligations of the Borrower under this Section 9.1 8.01 shall survive the resignation or removal of the Administrative Agent, the Lender, the Servicer, the Collateral Agent or any Managing Agent the Collateral Custodian and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Omnibus Amendment (Ares Capital Corp), Loan and Servicing Agreement (Ares Capital Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person Credit Party, the Affected Persons and their respective assigns, officers, directors, agents and employees (each, a “Borrower Indemnified Party”) may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured each Borrower Indemnified Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all claims, expenses, damages, losses, claims, losses and liabilities and related costs and expenses, suffered or sustained (including reasonable attorneys’ fees and disbursements Attorney Costs) (all of the foregoing being collectively referred to as “Borrower Indemnified Amounts”) awarded against arising out of, relating to or incurred by, in connection this Agreement or any such Indemnified Party other Transaction Document or other non-monetary damages the use of proceeds of the Credit Extensions or the security interest in respect of any such Indemnified Party Pool Receivable or any of them arising out of or as a result of this Agreement, other Collateral; excluding, however, (x) any portion of Borrower Indemnified Amounts to the extent resulting a final non-appealable judgment of a court of competent jurisdiction holds that portion of such Borrower Indemnified Amounts resulted from the gross negligence or negligence, bad faith, willful misconduct on by the part of any Borrower Indemnified PartyParty seeking indemnification, and (y) Taxes that are covered by Section 4.03. Without limiting or being limited by the foregoing, the Borrower shall pay on demand (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 3.01), to each Borrower Indemnified Party any and all amounts necessary to indemnify the such Borrower Indemnified Parties for Party from and against any and all Borrower Indemnified Amounts relating to or resulting from:from any of the following (but excluding Borrower Indemnified Amounts and Taxes described in clauses (x) and (y) above):
(i) any Loan treated as or represented by Pool Receivable which the Borrower to be or the Servicer includes as an Eligible Loan that Receivable as part of the Net Receivables Pool Balance but which is not at the applicable time an Eligible LoanReceivable at such time;
(ii) reliance on any representation representation, warranty or warranty statement made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their its respective officers officers) under or in connection with this Agreement, any of the other Transaction Documents, any Information Package, Interim Report or any other information or report delivered by or on behalf of the Borrower pursuant hereto which shall have been false untrue or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, Pool Receivable or the nonconformity related Contract; or the failure of any Loan, Pool Receivable or the Related Property with related Contract to conform to any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in all or any portion of the Collateral, in each case free and clear of any Lien;
(v) the failure to filehave filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable and the other Collateral and Collections in respect thereof, whether at the time of any Advance Credit Extension or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset claim or defense (other than the discharge in bankruptcy bankruptcy), of the Obligor) of the an Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Pool Receivable (including, without limitation, (A) a defense based on such Pool Receivable or the Loan related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) the equitable subordination of any other claim resulting from or relating to collection activities with respect to such Loan)Pool Receivable;
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform any of its duties or obligations in accordance with the provisions hereof and of this Agreement each other Transaction Document related to Pool Receivables or any failure by to timely and fully comply with the Originator, the Borrower or any Affiliate thereof Credit and Collection Policy in regard to perform its respective duties under the Transferred Loanseach Pool Receivable;
(viii) any products liability claim or personal injury or property damage suit liability, environmental or other similar or related claim or action of whatever sort arising out of or in connection with merchandise any Pool Receivable or other merchandise, goods or services that which are the subject of or related to any Transferred Loan or the Related PropertyPool Receivable;
(ix) the commingling of Collections of Pool Receivables at any time with other funds;
(x) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or the use of proceeds of any Credit Extensions or in respect of any Pool Receivable or other Collateral or any related Contract;
(xi) any failure of the Borrower to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(xii) any setoff with respect to any Pool Receivable;
(xiii) any claim brought by any Person other than a Borrower Indemnified Party arising from any activity by the Borrower or any Affiliate of the Borrower in servicing, administering or collecting any Pool Receivable;
(xiv) the failure by the Borrower to pay when due any Taxes for which the Borrower is liabletaxes, including including, without limitation, sales, excise or personal property taxes payable in connection with the Collateraltaxes;
(xxv) any repayment failure of a Collection Account Bank to comply with the terms of the applicable Account Control Agreement, the termination by a Collection Account Bank prior to the appointment of a successor collection account bank or any amounts payable by the Administrative AgentAgent to a Collection Account Bank under any Account Control Agreement;
(xvi) any dispute, any Managing Agent claim, offset or a Secured Party defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any amount previously distributed Pool Receivable (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in reduction of Advances Outstanding or payment of Interest accordance with its terms), or any other amount due hereunder claim resulting from the sale of goods or under the rendering of services related to such Pool Receivable or the furnishing or failure to furnish any Hedging Agreement, in each case which amount such goods or services or other similar claim or defense not arising from the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required financial inability of any Obligor to be repaidpay undisputed indebtedness;
(xixvii) any investigationaction taken by the Administrative Agent as attorney-in-fact for the Borrower, litigation any Originator or proceeding related the Servicer pursuant to this Agreement or any other Transaction Document;
(xviii) the use of proceeds of Advances or in respect of any Transferred Loan or the Related PropertyCredit Extension;
(xiixix) any reduction in Capital as a result of the distribution of Collections if all or a portion of such distributions shall thereafter be rescinded or otherwise must be returned for any reason; or
(xx) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the any Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person provide an Obligor with an invoice evidencing indebtedness related to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsa Pool Receivable.
(b) Any amounts subject Notwithstanding anything to the contrary in this Agreement, solely for purposes of the Borrower’s indemnification provisions obligations in clauses (ii), (iii), (vii) and (xi) of this Section 9.1 Article XI, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be paid by the Borrower deemed to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand thereforbe not so qualified.
(c) If for any reason the foregoing indemnification provided above in this Section 9.1 is unavailable (other than pursuant to the exclusions contained in Section 11.01(a)) to any Borrower Indemnified Party or is insufficient to hold an Indemnified Party it harmless, then the Borrower, Borrower shall contribute to such Borrower Indemnified Party the amount paid or payable by such Borrower Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party economic interests of the Borrower and its Affiliates on the one hand and the Borrower, such Borrower Indemnified Party on the other hand but also in the matters contemplated by this Agreement as well as the relative fault of the Borrower and its Affiliates and such Borrower Indemnified Party as well as with respect to such loss, claim, damage or liability and any other relevant equitable considerations.
(d) . The reimbursement, indemnity and contribution obligations of the Borrower under this Section 9.1 11.01 shall be in addition to any liability which the Borrower may otherwise have, shall extend upon the same terms and conditions to each Borrower Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Borrower and the Borrower Indemnified Parties.
(d) Any indemnification or contribution under this Section 11.01 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Receivables Financing Agreement (Waystar Holding Corp.), Receivables Financing Agreement (Waystar Holding Corp.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 “Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this Agreement, excluding, however, Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan included as part of the Collateral that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Credit Agreement (Gladstone Capital Corp), Credit Agreement (Gladstone Capital Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral CustodianTrustee, any other Secured Party or its assignee and each of their respective Affiliates and officers, directors, employees, members employees and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 “Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this Agreement, excluding, however, (a) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Party, and (b) under any Federal, state or local income or franchise taxes or any other Tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by such Indemnified Party in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by the applicable Indemnified Party subject to the limitations hereof. If the Borrower has made any indemnity payment pursuant to this Section 10.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts, the recipient shall repay to the Borrower an amount equal to the amount it has collected from others in respect of such indemnified amounts. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Transferred Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Transferred Loan comprising a portion of the Collateral, or the nonconformity of any Transferred Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent Trustee on behalf of the Secured Parties a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan included as part of the Collateral that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Transferred Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) any products liability claim or environmental 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 the Related Property, merchandise or services that are the subject of any Transferred Loan included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a another Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a another Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, ; or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 10.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agentsuch Person’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 10.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 10.1 shall survive the removal of the Administrative Agent Agent, the Backup Servicer or any Managing Agent the Trustee and the execution, delivery, performance and termination of this AgreementAgreement for a period of three years following the Termination Date, regardless of any investigation made by the Conduit Lender or the Agent.
(e) The parties hereto agree that the provisions of this Section 9.1 10.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy bankruptcy, insolvency or insolvency (or other credit condition) of, or default by, lack of creditworthiness of an Obligor on, on any Transferred Loan.
Appears in 2 contracts
Samples: Loan Funding and Servicing Agreement (Patriot Capital Funding, Inc.), Loan Funding and Servicing Agreement (Patriot Capital Funding, Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that which any such Person Affected Party may have hereunder or under Applicable Lawapplicable law (including, without limitation, the right to recover damages for breach of contract), the Borrower hereby agrees to indemnify any Lender, the Administrative Program Agent, each Managing Agent, the Managing AgentsServicer (if not an Affiliate of the Borrower) and any Liquidity Provider, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee and each of their respective Affiliates and officers, directors, employees, members officers and agents thereof employees (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable external attorneys’ fees and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) ), awarded against or incurred by, any by such Indemnified Party to the extent relating to or other non-monetary damages of any such Indemnified Party any of them arising out of from or as a result of this Agreement, excluding, however, Indemnified Amounts Agreement or the funding or maintenance of Loans made by a Lender hereunder subject to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Partyproviso set forth below. Without limiting the foregoinggenerality of the foregoing indemnification, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts to the extent relating to or resulting fromfrom any of the following:
(i) the failure of any Loan treated as or Pool Receivable represented by the Borrower to be an Eligible Loan that is not Receivable hereunder to be an “Eligible Receivable” at the applicable time an Eligible Loanof such representation;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Borrower under this Agreement or any of their respective officers under or in connection with this Agreement, other Facility Document to which it is a party which shall have been false or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement, the Purchase Agreement or any agreement executed in connection with this Agreement, other Facility Document to which it is party or with any Applicable Law applicable law, tariff, rule or regulation with respect to any Loan comprising a portion of Pool Receivable, the Collateralrelated Contract, or the Related Security, or the nonconformity of any LoanPool Receivable, the related Contract or the Related Property Security with any such Applicable Law applicable law, tariff, rule or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateralregulation;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise goods or services that services, the sale or provision of which gave rise to or are the subject of any Transferred Loan Pool Receivable or the Related PropertyContract;
(ixv) the failure by Borrower to pay when due any Taxes for which the Borrower is liabletaxes, including including, without limitation, sales, excise or personal property taxes payable by the Borrower in connection with the Collateral;
(xvi) the payment by such Indemnified Party 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 Borrower’s actions or failure to act in breach of this Agreement;
(vii) the failure to vest and maintain vested in the Program Agent, on behalf of the Secured Parties, a first priority perfected security interest in the Pool Receivables, together with all Collections, Related Security and other Collateral, free and clear of any Lien except a Lien in favor of any Affected Party, whether existing at the time such Pool Receivable arose or at any time thereafter;
(viii) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the applicable UCC or other applicable laws naming the Borrower as “Debtor” with respect to any Collateral;
(ix) any repayment by dispute, claim, offset or defense (other than as a result of the Administrative Agent, any Managing Agent bankruptcy or a Secured Party insolvency of the related Obligor) of an Obligor to the payment of any amount previously distributed Pool Receivable (including, without limitation, a defense based on such Pool Receivable not being a legal, valid and binding obligation of such Obligor enforceable against it in reduction of Advances Outstanding or payment of Interest accordance with its terms), or any other amount due hereunder claim resulting from the sale of goods or under services related to such Pool Receivable or the furnishing or failure to furnish such goods or services (other than as a result of the bankruptcy or insolvency of the related Obligor);
(x) the commingling of Collections with any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaidother funds;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property Pool Receivables, or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of or the Bankruptcy Code;
(xii) the failure of any Lock-Box Processor or Deposit Account Bank to remit any amounts or items of payment held in a Deposit Account or in a Lock-Box pursuant to the instructions of the Program Agent given in accordance with this Agreement, orthe applicable Lock-Box Processor Agreement, Blocked Account Agreement or the other Facility Documents, whether by reason of the exercise of setoff rights or otherwise;
(xiii) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Loans made pursuant to this Agreement or any other Facility Document delivered hereunder or in respect of any of the Collateral;
(xiv) any claim brought by any Person arising from any activity by the Borrower in servicing, administering or collecting any Pool Receivable;
(xv) the grant by the Borrower of a security interest in any Receivable in violation of any applicable law, tariff, rule or regulation;
(xvi) the failure of the BorrowerBorrower to furnish accurate and complete documentation (including, without limitation, a Contract or invoice) to any Obligor;
(xvii) the Originator failure of any Lock-Box Processor, Approved Sub-servicer or any other third party with a contractual relationship with the Borrower for the acceptance or processing of their respective agents or representatives Collections, to remit any Collections received by it to a Lock-Box or a Deposit Account within two (2) Business Days of receipt; or
(xviii) the amendment, modification or termination of any tariff or similar contract governing any Pool Receivable or the activities of the Borrower; provided, however, that the Borrower shall not be required to indemnify any Indemnified Party to the Servicer extent of any amounts (x) resulting from the gross negligence or willful misconduct of such Indemnified Party, or (y) constituting credit recourse for the Administrative Agentfailure of an Obligor to pay a Pool Receivable, Collections or (z) constituting net income or franchise taxes that are imposed by the United States or franchise taxes or net income taxes that are imposed on such Indemnified Party by the Collateral remitted to state or foreign jurisdiction under the Borrower laws of which such Indemnified Party is organized or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) political subdivision thereof. Any amounts subject to the indemnification provisions of this Section 9.1 8.01 shall be paid by the Borrower to the applicable related Indemnified Party within two thirty (230) Business Days days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Tampa Electric Co), Loan and Servicing Agreement (Teco Energy Inc)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee Parties and each of their respective Affiliates assigns and officers, directors, employees, members employees and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claimsclaims (whether brought by or involving the Borrower or any third party), liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively referred to as the “Indemnified Amounts”) awarded against, incurred by or asserted against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this AgreementAgreement (including the enforcement of any provision hereof) or having an interest in the Collateral or in respect of any Loan included in the Collateral, excluding, however, any Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Party. If the Borrower has made any indemnity payment pursuant to this Section 10.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts then, the recipient shall repay to the Borrower an amount equal to the amount it has collected from others (including insurance companies) in respect of such Indemnified Amounts. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts (except to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Party) relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer Collateral Manager (or one on behalf of its Affiliatesthe Borrower) or any of their respective officers under or in connection with this AgreementAgreement or any other Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(ii) the failure of any Loan acquired on the Closing Date to be an Eligible Loan as of the Closing Date and the failure of any Loan acquired after the Closing Date to be an Eligible Loan on the related Funding Date;
(iii) the failure by the Borrower or the Servicer Collateral Manager (or one on behalf of its Affiliatesthe Borrower) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law Law, with respect to any Loan comprising a portion of the Collateral, Collateral or the nonconformity of any Loan, the Related Property Collateral with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent Collateral Agent, for the benefit of the Secured Parties, a first priority priority, perfected security interest in the Collateral, together with all Collections, free and clear of any Lien (other than Permitted Liens) whether existing at the time of any Advance or at any time thereafter;
(v) the failure to maintain, as of the close of business on each Business Day prior to the Termination Date, an amount of Advances Outstanding that is less than or equal to the Borrowing Base on such Business Day;
(vi) the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws Law with respect to any Collateral Collateral, whether at the time of any Advance or at any subsequent time and as required by the Transaction Documentstime;
(vivii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of with respect to any Transferred Loan that is, or is purported to be, an Eligible Loan Collateral (including, without limitation, (A) a defense based on the Loan Collateral not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(viiviii) any failure of the Borrower or the Servicer Collateral Manager (if on behalf of the Originator or one of its AffiliatesBorrower) to perform its duties or obligations in accordance with the provisions of this Agreement or any of the other Transaction Documents to which it is a party or any failure by the Originator, the Borrower or any Affiliate thereof the Collateral Manager (on behalf of the Borrower) to perform its respective duties under the Transferred Loansany Collateral;
(viiiix) any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Borrower to qualify to do business or file any notice or business activity report or any similar report;
(x) any action taken by the Borrower or the Collateral Manager (on behalf of the Borrower) in the enforcement or collection of any Collateral;
(xi) 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 merchandise the Underlying Assets or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(xxii) [reserved];
(xiii) any repayment by the Administrative Agent, any Managing Agent or a another Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a another Secured Party believes in good faith is required to be repaid;
(xixiv) except with respect to funds held in the Collection Account, the commingling of Collections on the Collateral at any time with other funds;
(xv) any investigation, litigation or proceeding related to this Agreement (including the enforcement of any provision herein) or the use of proceeds of Advances or the security interest in respect of any Transferred Loan or the Related PropertyCollateral;
(xiixvi) any failure by the Borrower to give reasonably equivalent value to the Originator Equityholder or to the applicable third party transferor, in consideration for the transfer by the Originator Equityholder or such third party to the Borrower of any Transferred Loan or the Related Property item of Collateral or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, ;
(xvii) the use of the proceeds of any Advance in a manner other than as provided in this Agreement and the Sale Agreement; or
(xiiixviii) the failure of the Borrower, the Originator Borrower or any of their respective its agents or representatives to remit to the Servicer Collateral Manager (on behalf of the Borrower) or the Administrative Collateral Agent, Collections on the Collateral remitted to the Borrower Borrower, the Collateral Manager (on behalf of the Borrower) or any such agent or representative as provided in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsthis Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 10.1 shall be paid by the Borrower to the applicable Indemnified Party within two pursuant to Section 2.7 or 2.8, as applicable, on the Payment Date following such Person’s demand therefor (2if given at least five (5) Business Days following prior to such Payment Date, and, if not, on the Administrative Agent’s demand therefor.
(c) If for any reason next subsequent Payment Date), accompanied by a reasonably detailed description in writing of the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmlessrelated damage, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerationsrelated costs and expenses.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan and Security Agreement (Palmer Square Capital BDC Inc.), Loan and Security Agreement (Palmer Square Capital BDC Inc.)
Indemnities by the Borrower. (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 that which the Affected Parties, the Secured Parties, the Administrative Agent, the Lenders, the Collateral Agent, the Account Bank, the Collateral Custodian or any such Person of their respective Affiliates may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Affected Parties, the Secured Parties, the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor ServicerLenders, the Collateral CustodianAgent, any Secured Party or its assignee the Account Bank, the Collateral Custodian and each of their respective Affiliates and Affiliates, assigns, officers, directors, employees, members employees and agents thereof (collectivelyeach, the “an "Indemnified Parties”)Party" for purposes of this Article VIII) against, forthwith on demandand to hold each Indemnified Party harmless from, 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 “"Indemnified Amounts”) "), awarded against or actually incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of of, in any way connected with, or as a result of this Agreement, excludingany of the other Transaction Documents or in respect of any of the Collateral or any claim, howeverlitigation, investigation or proceeding relating to any of the foregoing, regardless of whether any such Indemnified Party is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower or any of its Affiliates or shareholders); provided that Indemnified Amounts shall not be available to an Indemnified Party to the extent resulting that such damages, losses, claims, liabilities and related costs and expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct on the part of any such Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 8.01 shall be paid by the Borrower to the Administrative Agent on behalf of the applicable Indemnified Party within two ten (210) Business Days following the Administrative Agent’s 's written demand therefortherefor 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 8.01, shall submit to the Borrower a certificate setting forth 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 9.1 8.01 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmlessharmless in respect of any losses, claims, damages or liabilities, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such losslosses, claimclaims, damage damages or liability 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 Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) If the Borrower has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 8.01 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Borrower, without interest.
(e) The obligations of the Borrower under this Section 9.1 8.01 shall survive the resignation or removal of the Administrative Agent Agent, the Lenders, the Servicer, the Collateral Agent, the Account Bank or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any Managing Agent other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Servicer, the Account Bank or the Collateral Custodian and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (AG Twin Brook Capital Income Fund), Loan and Servicing Agreement (AGTB Private BDC)
Indemnities by the Borrower. (a) Without limiting any other rights that which the Affected Parties, the Secured Parties, the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Collateral Custodian or any such Person of their respective Affiliates may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Affected Parties, the Secured Parties, Administrative Agent, the Managing Lenders, the Lender Agents, the Backup ServicerCollateral Agent, any Successor Servicerthe Account Bank, the Collateral Custodian, any Secured Party or its assignee Custodian and each of their respective Affiliates and Affiliates, assigns, officers, directors, employees, members employees and agents thereof (collectivelyeach, the an “Indemnified Parties”), forthwith on demand, Party” for purposes of this Article VIII) from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements of (x) one outside counsel to the Administrative Agent (and any Lender Affiliated with the Administrative Agent) and the Lenders (subject to clause (z) below) except in the event of an actual or potential conflict of interest between the Administrative Agent and the Lenders, in which case one additional counsel for the Lenders, (y) one outside counsel to the Collateral Agent, the Account Bank and the Collateral Custodian, and (z) one counsel per foreign or local jurisdiction deemed reasonably necessary by the Administrative Agent or the Collateral Agent, as applicable (all of the foregoing being collectively referred to as “Indemnified Amounts”) ), awarded against or actually incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this Agreement, any of the other Transaction Documents or in respect of any of the Collateral Portfolio, excluding, however, Indemnified Amounts to the extent resulting solely from (a) gross negligence negligence, bad faith or willful misconduct on the part of any such Indemnified Party, (b) Loan Assets which are uncollectible due to the Obligor’s financial inability to pay or (c) arising on account of Excluded Taxes. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts relating to or resulting from:
from any of the following (i) any Loan treated as or represented by to the Borrower to be an Eligible Loan that is extent not at resulting from the applicable time an Eligible Loan;
conditions set forth in (ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliatesa) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.above):
Appears in 2 contracts
Samples: Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.), Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any the Secured Party or its assignee Parties, the Affected Parties and each of their respective Affiliates assigns and officers, directors, employees, members employees and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 the “Indemnified Amounts”) awarded against or incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this AgreementAgreement or having an interest in the Collateral or in respect of any Loan included in the Collateral, excluding, however, any Indemnified Amounts to the extent resulting from gross negligence negligence, bad faith or willful misconduct on the part of any Indemnified Party. If the Borrower has made any indemnity payment pursuant to this Section 10.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts then, the recipient shall repay to the Borrower an amount equal to the amount it has collected from others in respect of such indemnified amounts. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts (except to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party as determined by a court of competent jurisdiction by final non-appealable judgment) relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Collateral Manager or any of their respective officers under or in connection with this AgreementAgreement or any other Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(ii) the failure of any Loan acquired on the Closing Date to be an Eligible Loan as of the Closing Date and the failure of any Loan acquired after the Closing Date to be an Eligible Loan on the related Funding Date;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) Collateral Manager to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law Law, with respect to any Loan comprising a portion of the Collateral, Collateral or the nonconformity of any Loan, the Related Property Collateral with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected Agent, as agent for the Secured Parties, an undivided security interest in the Collateral, together with all Collections, free and clear of any Lien (other than Permitted Liens) whether existing at the time of any Advance or at any time thereafter;
(v) the failure to maintain, as of the close of business on each Business Day prior to the Termination Date, an amount of Advances Outstanding that is less than or equal to the Borrowing Base on such Business Day;
(vi) the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws Law with respect to any Collateral Collateral, whether at the time of any Advance or at any subsequent time and as required time, if such failure or delay (i) was caused by the Transaction DocumentsBorrower or the Collateral Manager, (ii) could have been cured by either the Collateral Manager or the Borrower and such cure was not effected in a timely manner or (iii) resulted from a failure or delay by either the Borrower or the Collateral Manager to confirm satisfactory completion in a timely manner of any and all actions they requested in order to maintain compliance with the UCC or such other Applicable Law;
(vivii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of with respect to any Transferred Loan that is, or is purported to be, an Eligible Loan Collateral (including, without limitation, (A) a defense based on the Loan Collateral not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(viiviii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) Collateral Manager to perform its duties or obligations in accordance with the provisions of this Agreement or any of the other Transaction Documents to which it is a party or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under any Underlying Instrument related to the Transferred LoansCollateral;
(viiiix) the failure of the Collateral Custodian to remit any amounts held in the Collection Account pursuant to the instructions of the Collateral Manager or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof) whether by reason of the exercise of set-off rights or otherwise;
(x) any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Borrower or the Collateral Manager to qualify to do business or file any notice or business activity report or any similar report;
(xi) any action taken by the Borrower or the Collateral Manager in the enforcement or collection of any Collateral;
(xii) 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 merchandise the Underlying Assets or services that are the subject of any Transferred Loan or the Related PropertyCollateral;
(ixxiii) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(xxiv) any repayment by the Administrative Agent, any Managing Agent or a another Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a another Secured Party believes in good faith is required to be repaidrepay;
(xixv) except with respect to funds held in the Collection Account and the Unfunded Exposure Account, the commingling of Collections on the Collateral at any time with other funds;
(xvi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or the security interest in respect of any Transferred Loan or the Related PropertyCollateral;
(xiixvii) any failure by the Borrower to give reasonably equivalent value to the Originator Seller or the applicable third party transferor, in consideration for the transfer by the Originator Seller or such third party to the Borrower of any Transferred Loan or the Related Property item of Collateral or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or;
(xiiixviii) the use of the proceeds of any Advance in a manner other than as provided in this Agreement, the Sale Agreement or the Master Participation Agreement;
(xix) the failure of the Borrower, the Originator Borrower or any of their respective its agents or representatives to remit to the Servicer Collateral Manager or the Administrative Agent, Collections on the Collateral remitted to the Borrower Borrower, the Collateral Manager or any such agent or representative as provided in accordance with this Agreement; or
(xx) the terms hereof or failure of the commingling by the Borrower or any Affiliate of any collectionsCollateral Manager to satisfy its obligations under Section 10.2.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 10.1 shall be paid by the Borrower to the applicable Indemnified Party within two pursuant to Section 2.7 or 2.8, as applicable, on the later of (2i) Business Days the Payment Date following the Administrative Agentsuch Person’s demand therefortherefor and (ii) 30 days after the Borrower’s receipt from such Person of a reasonably detailed description in writing of the related damage, loss, claim, liability and related costs and expenses.
(c) If for any reason the indemnification provided above in this Section 9.1 10.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that, the Borrower shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 10.1(a).
(d) The obligations of the Borrower under this Section 9.1 10.1 shall survive the resignation or removal of the Administrative Agent Agent, the Collateral Manager or any Managing Agent the Collateral Custodian and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan and Security Agreement (NMF SLF I, Inc.), Loan and Security Agreement (NMF SLF I, Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person the Administrative Agent, the Credit Parties, the Affected Persons and their respective assigns, officers, directors, agents and employees (each, a “Borrower Indemnified Party”) may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured each Borrower Indemnified Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, losses and liabilities and related costs and expenses, (including reasonable attorneys’ fees and disbursements Attorney Costs) (all of the foregoing being collectively referred to as “Borrower Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result resulting from this Agreement or any other Transaction Document or the use of this Agreement, proceeds of the Credit Extensions or the security interest in respect of any Pool Receivable or any other Collateral; excluding, however, (x) Borrower Indemnified Amounts to the extent resulting a final judgment of a court of competent jurisdiction holds that such Borrower Indemnified Amounts resulted primarily from the bad faith, gross negligence or willful misconduct on by the part of any Borrower Indemnified PartyParty seeking indemnification and (y) Taxes that are not attributable to either (A) a non-Tax-related Borrower Indemnified Amount or (B) a Tax-related Borrower Indemnified Amount specified below. Without limiting or being limited by the foregoing, the Borrower shall pay on written demand (which demand shall be accompanied by documentation of the Borrower Indemnified Amounts in reasonable detail) (it being understood that if any portion of such payment obligation is made from Collections or Deemed Collections, such payment will be made at the time and in the order of priority set forth in Section 4.01), to each Borrower Indemnified Party any and all amounts necessary to indemnify the such Borrower Indemnified Parties for Party from and against any and all Borrower Indemnified Amounts relating to or resulting from:from any of the following (but excluding Borrower Indemnified Amounts and Taxes described in clauses (x) and (y) above):
(i) any Loan treated as or represented by Pool Receivable which the Borrower to be or the Servicer includes as an Eligible Loan that Receivable as part of the Net Receivables Pool Balance but which is not at the applicable time an Eligible LoanReceivable at such time;
(ii) reliance on any representation written representation, warranty or warranty statement made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their its respective officers officers) under or in connection with this Agreement, any of the other Transaction Documents, any Information Package or any other written information or report (other than projections, forward-looking statements and information of a general economic or industry nature) delivered by or on behalf of the Borrower pursuant hereto which shall have been false untrue or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, Pool Receivable or the nonconformity related Contract; or the failure of any Loan, Pool Receivable or the Related Property with related Contract to conform to any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in all or any portion of the Collateral, in each case free and clear of any Adverse Claim;
(v) the failure to filehave filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable and the other Collateral and Collections in respect thereof, whether at the time of any Advance Credit Extension or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset claim or defense (other than the any reduction, revision or discharge in bankruptcy of the Obligorbankruptcy) of the an Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Pool Receivable (including, without limitation, (A) a defense based on such Pool Receivable or the Loan related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) any other claim resulting from or relating to collection activities with respect to such Pool Receivable, or the equitable subordination sale of goods or the rendering of services related to such Loan)Pool Receivable or the furnishing or failure to furnish any such goods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform any of its duties or obligations in accordance with the provisions hereof and of this Agreement each other Transaction Document related to Pool Receivables or any failure by to timely and fully comply with the Originator, Credit and Collection Policy (or the Borrower or any Affiliate thereof current and historical practices of the applicable Originator if the Credit and Collection Policy has not been delivered pursuant to perform its respective duties under the Transferred LoansSection 8.01(cc)) in regard to each Pool Receivable;
(viii) any products liability claim or personal injury or property damage suit liability, environmental or other similar or related claim or action of whatever sort arising out of or in connection with merchandise any Pool Receivable or other merchandise, goods or services that which are the subject of or related to any Transferred Loan or the Related PropertyPool Receivable;
(ix) the commingling of Collections and Deemed Collections of Pool Receivables at any time with other funds;
(x) any investigation, litigation or proceeding (actual or threatened) brought by a Person other than a Borrower Indemnified Party related to this Agreement or any other Transaction Document or the use of proceeds of any Credit Extensions or in respect of any Pool Receivable or other Collateral or any related Contract;
(xi) any failure of the Borrower to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(xii) any setoff with respect to any Pool Receivable;
(xiii) any claim brought by any Person other than a Borrower Indemnified Party arising from any activity by the Borrower or the Servicer (if an Affiliate of the Borrower) in servicing, administering or collecting any Pool Receivable;
(xiv) the failure by the Borrower to pay when due any Taxes for which the Borrower is liabletaxes, including including, without limitation, sales, excise or personal property taxes payable in connection with the Collateraltaxes;
(xxv) any repayment failure of a Collection Account Bank to comply with the terms of the applicable Account Control Agreement or any amounts payable by the Administrative Agent, any Managing Agent or to a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or Collection Account Bank under any Hedging Account Control Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xixvi) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(xvii) any investigationaction taken by the Administrative Agent as attorney-in-fact for the Borrower, litigation any Originator or proceeding related the Servicer pursuant to this Agreement or any other Transaction Document;
(xviii) the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, Credit Extension; or
(xiiixix) the failure any reduction in Capital as a result of the Borrower, the Originator distribution of Collections if all or a portion of such distributions shall thereafter be rescinded or otherwise must be returned for any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsreason.
(b) Any amounts subject Notwithstanding anything to the contrary in this Agreement, solely for purposes of the Borrower’s indemnification provisions obligations in clauses (ii), (iii), (vii) and (xi) of this Section 9.1 Article XIII, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be paid by the Borrower deemed to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand thereforbe not so qualified.
(c) If for any reason the foregoing indemnification provided above in this Section 9.1 is unavailable to the any Borrower Indemnified Party or is insufficient to hold an Indemnified Party it harmless, then the Borrower, Borrower shall contribute to such Borrower Indemnified Party the amount paid or payable by such Borrower Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party economic interests of the Borrower on the one hand and the Borrower, such Borrower Indemnified Party on the other hand but also in the matters contemplated by this Agreement as well as the relative fault of the Borrower and such Borrower Indemnified Party as well as with respect to such loss, claim, damage or liability and any other relevant equitable considerations.
(d) . The reimbursement, indemnity and contribution obligations of the Borrower under this Section 9.1 shall be in addition to any liability which the Borrower may otherwise have, shall extend upon the same terms and conditions to each Borrower Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Borrower and the Borrower Indemnified Parties.
(d) Any indemnification or contribution under this Section shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Receivables Financing Agreement (Rackspace Technology, Inc.), Receivables Financing Agreement (Rackspace Technology, Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup ServicerManager, any Successor ServicerManager, the Collateral Custodian, any Secured Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 “Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this Agreement, excluding, however, Indemnified Amounts to the extent (i) resulting from gross negligence or willful misconduct on the part of any Indemnified PartyParty or (ii) arising in respect of Taxes excluded from the definition of Additional Amount pursuant to Section 2.12(a). Notwithstanding anything in this Agreement to the contrary, Indemnified Amounts owed to the Manager shall be paid in accordance with Section 2.7. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan Asset that is not at the applicable time an Eligible LoanLoan Asset;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, Borrower or the Servicer Manager (or one of its their respective Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer Manager (or one of its their respective Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan Asset comprising a portion of the Collateral, or the nonconformity of any LoanLoan Asset, the Related Property with any such Applicable Law or any failure by the OriginatorPerformance Guarantor, the Borrower or any Affiliate thereof to perform its respective duties under the Loans Loan Assets included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan included as part of the Collateral that is, or is purported to be, an Eligible Loan Asset (including, without limitation, (A) including a defense based on the such Loan Asset not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(vii) any failure of the Borrower or the Servicer Manager (if the Originator Performance Guarantor or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the OriginatorPerformance Guarantor, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred LoansLoan Assets;
(viii) 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 merchandise or services that are the subject of any Transferred Loan Asset included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan Asset included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator Performance Guarantor in consideration for the transfer by the Originator Performance Guarantor to the Borrower of any Transferred Loan Asset or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, including any provision of the Bankruptcy Code, or;
(xiii) the failure of the Borrower, the Originator Performance Guarantor or any of their respective agents or representatives to remit to the Servicer Manager or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections; or
(xiv) the occurrence of a Subordination Event.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following pursuant to the Administrative Agent’s demand thereforterms of Section 2.7.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Credit, Security and Management Agreement (Saratoga Investment Corp.), Credit, Security and Management Agreement (GSC Investment Corp.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person the Administrative Agent, the Credit Parties, the Affected Persons and their respective assigns, officers, directors, agents and employees (each, a “Borrower Indemnified Party”) may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured each Borrower Indemnified Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, losses and liabilities and related costs and expenses, (including reasonable attorneys’ fees and disbursements Attorney Costs) (all of the foregoing being collectively referred to as “Borrower Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result resulting from this Agreement or any other Transaction Document or the use of this Agreement, proceeds of the Credit Extensions or the security interest in respect of any Pool Receivable or any other Collateral; excluding, however, (a) any portion of Borrower Indemnified Amounts to the extent resulting a final non-appealable judgment of a court of competent jurisdiction holds that such portion of such Borrower Indemnified Amounts resulted from the bad faith, gross negligence or willful misconduct on by the part of Borrower Indemnified Party seeking indemnification and (b) Taxes other than as described in clause (xiv) below or Taxes that represent losses, claims or damages arising from any Indemnified Partynon-Tax claim. Without limiting or being limited by the foregoing, the Borrower shall pay on demand (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 3.01), to each Borrower Indemnified Party any and all amounts necessary to indemnify the such Borrower Indemnified Parties for Party from and against any and all Borrower Indemnified Amounts relating to or resulting from:from any of the following (but excluding Borrower Indemnified Amounts and Taxes described in clause (b) above):
(i) any Loan treated as or represented by Pool Receivable which the Borrower to be or the Servicer includes as an Eligible Loan that Receivable as part of the Net Receivables Pool Balance but which is not at the applicable time an Eligible LoanReceivable at such time;
(ii) reliance on any representation representation, warranty or warranty statement made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their its respective officers officers) under or in connection with this Agreement, any of the other Transaction Documents, any Monthly Report or any other information or report delivered by or on behalf of the Borrower pursuant hereto which shall have been false untrue or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, Pool Receivable or the nonconformity related Contract; or the failure of any Loan, Pool Receivable or the Related Property with related Contract to conform to any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in all or any portion of the Collateral, in each case free and clear of any Lien;
(v) the failure to filehave filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable and the other Collateral and Collections in respect thereof, whether at the time of any Advance Credit Extension or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset claim or defense (other than the discharge in bankruptcy of the Obligorbankruptcy) of the an Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Pool Receivable (including, without limitation, (A) a defense based on such Pool Receivable or the Loan related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) the equitable subordination of any other claim resulting from or relating to collection activities with respect to such Loan)Pool Receivable;
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform any of its duties or obligations in accordance with the provisions hereof and of this Agreement each other Transaction Document related to Pool Receivables or any failure by to timely and fully comply with the Originator, the Borrower or any Affiliate thereof Credit and Collection Policy in regard to perform its respective duties under the Transferred Loanseach Pool Receivable;
(viii) any products liability claim or personal injury or property damage suit liability, environmental or other similar or related claim or action of whatever sort arising out of or in connection with merchandise any Pool Receivable or other merchandise, goods or services that which are the subject of or related to any Transferred Loan or the Related PropertyPool Receivable;
(ix) the commingling of Collections of Pool Receivables at any time with other funds;
(x) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or the use of proceeds of any Credit Extensions or in respect of any Pool Receivable or other Collateral or any related Contract;
(xi) any failure of the Borrower to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(xii) any setoff with respect to any Pool Receivable;
(xiii) any claim brought by any Person other than a Borrower Indemnified Party arising from any activity by the Borrower or any Affiliate of the Borrower in servicing, administering or collecting any Pool Receivable;
(xiv) the failure by the Borrower to pay when due any Taxes for which the Borrower is liabletaxes, including including, without limitation, sales, excise or personal property taxes payable in connection with the Collateraltaxes;
(xxv) any repayment failure of a Collection Account Bank to comply with the terms of the applicable Collection Account Control Agreement or any amounts payable by the Administrative AgentAgent to a Collection Account Bank under any Collection Account Control Agreement;
(xvi) any dispute, any Managing Agent claim, offset or a Secured Party defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any amount previously distributed Pool Receivable (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in reduction of Advances Outstanding or payment of Interest accordance with its terms), or any other amount due hereunder or under any Hedging Agreement, claim in each case which amount resulting from the Administrative Agent, sale of goods or the rendering of services related to such Managing Agent Pool Receivable or a Secured Party believes in good faith is required the furnishing or failure to be repaidfurnish any such goods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(xixvii) any investigationaction taken by the Administrative Agent as attorney-in-fact for the Borrower, litigation any Originator or proceeding related the Servicer pursuant to this Agreement or any other Transaction Document;
(xviii) the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, Credit Extension; or
(xiiixix) the failure any reduction in Capital as a result of the Borrower, the Originator distribution of Collections if all or a portion of such distributions shall thereafter be rescinded or otherwise must be returned for any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsreason.
(b) Any amounts subject Notwithstanding anything to the contrary in this Agreement, solely for purposes of the Borrower’s indemnification provisions obligations in clauses (ii), (iii), (vii) and (xi) of this Section 9.1 Article XI, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be paid by the Borrower deemed to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand thereforbe not so qualified.
(c) If for any reason the foregoing indemnification provided above in this Section 9.1 is unavailable (other than pursuant to the exclusions contained in Section 11.01(a)) to any Borrower Indemnified Party or is insufficient to hold an Indemnified Party it harmless, then the Borrower, Borrower shall contribute to such Borrower Indemnified Party the amount paid or payable by such Borrower Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party economic interests of the Borrower and its Affiliates on the one hand and the Borrower, such Borrower Indemnified Party on the other hand but also in the matters contemplated by this Agreement as well as the relative fault of the Borrower and its Affiliates and such Borrower Indemnified Party as well as with respect to such loss, claim, damage or liability and any other relevant equitable considerations.
(d) . The reimbursement, indemnity and contribution obligations of the Borrower under this Section 9.1 shall be in addition to (but without duplication of) any liability which the Borrower may otherwise have, shall extend upon the same terms and conditions to each Borrower Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Borrower and the Borrower Indemnified Parties.
(d) Any indemnification or contribution under this Section shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Receivables Financing Agreement (PRA Health Sciences, Inc.), Receivables Financing Agreement (PRA Health Sciences, Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that which any such Person Indemnified Party (as defined below) may have hereunder or under Applicable Lawapplicable law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing AgentsLender, the Backup Servicereach Affected Party, any Successor Servicer, the Collateral Custodian, any each Hedge Counterparty and each other Secured Party or its assignee and each of their respective Affiliates and officers, directors, employees, members agents and agents thereof employees (collectively, the each an “Indemnified PartiesParty”), forthwith on demand, ) from and against any and all damages, losses, claims, liabilities liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent or the Lender) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or reasonably incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party by any of them arising out of or as a result of this AgreementAgreement or the acquisition, either directly or indirectly, by any Secured Party of an interest in the Loans, excluding, however, Indemnified Amounts to the extent resulting final judgment of a court of competent jurisdiction holds such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of any such Indemnified Party. Without limiting the foregoinggenerality of the foregoing indemnification, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Loans, regardless of whether reimbursement therefor would constitute recourse to the Borrower, but excluding Indemnified Amounts to the extent final judgment of a court of competent jurisdiction holds such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of such Indemnified Party) relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made by any Brooke Party or deemed made by the Borrower, the Servicer (or one any officer of its Affiliatesa Brooke Party or the Servicer) or any of their respective officers under or in connection with this Agreement, any Servicer’s Certificate, any Borrowing Base Certificate or any other Related Document or any other information or report delivered by any Brooke Party or the Servicer pursuant to any Related Document, which shall have been false or incorrect in any material respect when made or deemed made or deliveredmade;
(iiiii) the failure by the Borrower any Brooke Party or the Servicer (or one of its Affiliates) to comply with any termapplicable law, provision rule or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law regulation with respect to any Loan, Other Conveyed Property or Loan comprising a portion of the CollateralDocuments related thereto, or the nonconformity of any Loan, the Related Other Conveyed Property or Loan Documents related thereto with any such Applicable Law applicable law, rule or regulation;
(iii) any failure by of any Brooke Party or the Originator, the Borrower or any Affiliate thereof Servicer to perform its respective duties under or obligations in accordance with the Loans included as provisions of this Agreement, any other Related Document, any Loan Documents, or any other contract or agreement related to a part of the CollateralLoan or Other Conveyed Property with respect thereto;
(iv) any damage suit or other claim arising out of or in connection with any transaction which is the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateralsubject of any Loan Document, any Loan or any Other Conveyed Property with respect thereto;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the any Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on such Loan or the related Loan Documents not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or any other claim relating to a Loan,
(Bvi) the equitable subordination commingling of such Loan)Collections at any time with other funds;
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to or arising from this Agreement or any other Related Document, the transactions contemplated hereby or thereby, the use of the proceeds of Advances Advances, the holding of the security interest created hereunder or any other investigation, litigation or proceeding relating to any Brooke Party, the Loans or Other Conveyed Property in respect which any Indemnified Party becomes involved as a result of any Transferred Loan of the transactions contemplated hereby or the Related Propertythereby;
(xiiviii) any Event of Default described in Section 6.01(f);
(ix) any failure by to vest and maintain vested in the Agent, for the benefit of the Secured Parties, a first priority perfected security interest in the Collateral or the existence of any Adverse Claim upon or with respect to the Collateral; or
(x) any failure to vest and maintain vested in the Borrower legal and equitable title to, and ownership of, the Loans, the Other Conveyed Property and the Collections, free and clear of any Adverse Claim (other than Adverse Claims created pursuant to this Agreement); or any failure of the Borrower to give reasonably equivalent value to the Originator Seller under the Sale and Servicing Agreement in consideration for of the transfer by the Originator to the Borrower Seller of any Transferred Loan or the Related any Other Conveyed Property with respect thereto; or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision provisions or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code. Notwithstanding anything to the contrary in this Agreement, or
(xiii) the failure solely for purposes of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above obligations set forth in this Section 9.1 is unavailable to the Indemnified 8.01, any representations, warranties and covenants made by any Brooke Party in this Agreement or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault Related Documents which are qualified by or limited to events or circumstances which have, or are reasonably likely to have, given rise to a Material Adverse Effect or are qualified or limited by other concepts of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 materiality, shall not be interpreted deemed to provide recourse to the Borrower against loss by reason of the bankruptcy be so qualified or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loanlimited.
Appears in 2 contracts
Samples: Credit and Security Agreement (Brooke Corp), Credit and Security Agreement (Brooke Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Deal Agent, the Managing Agents, the Backup Servicer, any the Collateral Agent, the Successor Servicer, the Collateral CustodianLenders, any the other Secured Party or its assignee Parties, and each of their respective Affiliates and officers, directors, employees, members employees and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 the “Indemnified Amounts”) awarded against or incurred by, any by such Indemnified Party or other non-monetary non‑monetary damages of any such Indemnified Party any of them arising out of or as a result of this AgreementAgreement or the financing or maintenance of the Aggregate Loan Amount or in respect of any Loan or any Contract, excluding, however, (a) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of an Indemnified Party or (b) Indemnified Amounts that have the effect of recourse for non‑payment of the Loans due to credit problems of the Obligors (except as otherwise specifically provided in this Agreement). If the Borrower has made any indemnity payment pursuant to this Section 10.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified PartyAmounts then, the recipient shall repay to the Borrower an amount equal to the amount it has collected from others in respect of such Indemnified Amounts. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts relating to or resulting from:
(i) any Contract or Loan treated as or represented by the Borrower Credit Acceptance to be an Eligible Loan or an Eligible Contract that is not at the applicable time an Eligible LoanLoan or an Eligible Contract;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Borrower or any of their respective its officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law Law, with respect to any Loan comprising a portion of the CollateralLoan, Dealer Agreement, Purchase Agreement, any Contract, or the nonconformity of any Loan, the Related Property Dealer Agreement, Purchase Agreement or Contract with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Collateral Agent for the Secured Parties a first priority perfected security interest in the Collateral, together with all Collections, free and clear of any Lien whether existing at the time of any Funding or at any time thereafter;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral the Collateral, whether at the time of any Advance the Funding or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Contract (including, without limitation, (A) a defense based on the such Loan or Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(xix) any repayment by the Administrative Agent, any Managing Deal Agent or a any other Secured Party of any amount previously distributed in reduction of Advances Outstanding the Aggregate Loan Amount or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Deal Agent or a such other Secured Party believes in good faith is required to be repaid;
(x) the commingling of Collections of the Collateral at any time with other funds;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances any Funding or the funding of or maintenance of the Aggregate Loan Amount or in respect of any Transferred Loan or the Related PropertyContract;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of the Loans, Related Security or any Transferred Loan or the Related Property portion thereof or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or;
(xiii) the use of the proceeds of any Funding in a manner other than as provided in this Agreement and the Contribution Agreement; or
(xiv) the failure of the Borrower, the Originator Borrower or any of their respective its agents or representatives to remit to the Servicer or Servicer, the Administrative Deal Agent, the Collateral Agent and the Lenders or any other Secured Party, any Collections on of the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsrepresentative.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 10.1 shall be paid by the Borrower to the applicable relevant Indemnified Party within two (2) Business Days following on the Administrative Agent’s demand therefornext Payment Date.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 10.1 shall survive the resignation or removal of the Administrative Agent Deal Agent, the Collateral Agent, the Successor Servicer, any Lender or any Managing Agent the Backup Servicer and the assignment or termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan and Security Agreement (Credit Acceptance Corp), Loan and Security Agreement (Credit Acceptance Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that the Lenders or the Administrative Agent or any such Person of their respective officers, directors, employees, attorneys, agents or representatives (each, an "Indemnified Person") may have hereunder or under Applicable Lawapplicable law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee and hold harmless each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, Person 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 “Indemnified Amounts”) awarded Amounts that may be claimed or asserted against or incurred by, by any such Indemnified Party Person in connection with or arising out of the transactions contemplated under this Agreement or under any other non-monetary damages of Related Document or any such Indemnified Party actions or failures to act in connection therewith, including any of them and all reasonable legal costs and reasonable expenses arising out of or incurred in connection with disputes between or among any parties to any of the Related Documents; provided, that the Borrower shall not be liable for any indemnification to an Indemnified Person to the extent that any such Indemnified Amount (x) results from such Indemnified Person's gross negligence or willful misconduct, in each case as finally determined by a court of competent jurisdiction or (y) constitutes recourse for uncollectible or uncollected Transferred Receivables as a result of this Agreementthe insolvency, excluding, however, Indemnified Amounts to bankruptcy or the extent resulting from gross negligence failure (without cause or willful misconduct justification) or inability on the part of any Indemnified Partythe related Obligor to perform its obligations thereunder. Without limiting the generality of the foregoing, the Borrower shall indemnify the pay on demand to each Indemnified Parties for Person any and all Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their respective officers its officers) under or in connection with this Agreement, which Agreement or any other Related Document or on any other information delivered by the Borrower pursuant hereto or thereto that shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iiiii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement Agreement, any other Related Document or any agreement executed in connection with this Agreementherewith or therewith, any applicable law, rule or with any Applicable Law regulation with respect to any Loan comprising a portion of Transferred Receivable or the CollateralContract therefor, or the nonconformity of any Loan, Transferred Receivable or the Related Property Contract therefor with any such Applicable Law applicable law, rule or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;regulation; or
(iv1) the failure to vest and maintain vested in the Borrower valid and properly perfected title to and sole record and beneficial ownership of the Receivables that constitute Transferred Receivables, together with all Collections in respect thereof and all other Borrower Collateral, free and clear of any Adverse Claim and (2) the failure to maintain or transfer to the Administrative Agent Agent, for the benefit of itself and the Lenders, a first priority priority, perfected security interest Lien in any portion of the Borrower Collateral;
(iv) any dispute, claim, offset or defense of any Obligor (other than its discharge in bankruptcy) to the payment of any Transferred Receivable or which would constitute recourse for uncollectible or uncollected Transferred Receivables (including a defense based on such Receivable or the Contract therefor not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services giving rise to such Receivable or the furnishing of or failure to furnish such merchandise or services or relating to collection activities with respect to such Receivable (if such collection activities were performed by any of its Affiliates acting as Servicer), except to the extent that such dispute, claim, offset or defense results solely from any action or inaction on the part of any Indemnified Person;
(v) any products liability claim or other claim arising out of or in connection with merchandise, insurance or services that is the subject of any Contract with respect to any Transferred Receivable;
(vi) the commingling of Collections with respect to Transferred Receivables by the Borrower at any time with its other funds or the funds of any other Person;
(vii) any failure by the Borrower to filecause the filing of, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or any other Applicable Laws applicable laws with respect to any Collateral Transferred Receivable hereunder or any other Borrower Collateral, whether at the time of the Borrower's acquisition thereof or any Advance made hereunder or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;time; or
(viii) any products liability claim or personal injury or property damage suit or other similar or related claim or action failure of whatever sort arising out a Lockbox Bank to comply with the terms of or in connection with merchandise or services that are the subject of any Transferred Loan or the Related Property;applicable Lockbox Account Agreement; or
(ix) the failure by Borrower any withholding, deduction or Charge imposed upon any payments with respect to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative AgentTransferred Receivable, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest Borrower Assigned Agreement or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsCollateral.
(b) Any amounts Indemnified Amounts subject to the indemnification provisions of this Section 9.1 12.01 not paid in accordance with Section 2.08 shall be paid by the Borrower to the applicable Indemnified Party Person entitled thereto within two (2) five Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Receivables Funding Agreement (Superior Telecom Inc), Receivables Funding Agreement (Alpine Group Inc /De/)
Indemnities by the Borrower. (a) Without limiting any other rights that which the Administrative Agent, each Agent, each Lender or its assignee, the Image File Custodian, the Backup Servicer, the Account Bank or any such Person of their respective Affiliates may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee each such entity and each of their respective Affiliates and officers, directors, employees, members employees and agents thereof (each, an “Indemnified Party” and collectively, the “Indemnified Parties”), forthwith on demand, ) from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of collectively, the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this Agreement, excluding, however, Indemnified Amounts to the extent resulting from the gross negligence negligence, bad faith or willful misconduct on the part of any such Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or Receivable represented by the Borrower to be an Eligible Loan that Receivable which is not at the applicable time time, an Eligible LoanReceivable;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one Servicer, any of its Affiliates) their respective Affiliates or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) any other Regional Management Entity to comply with any term, provision or covenant contained in this Agreement or any other Basic Document or a failure by the Borrower or any Regional Management Entity to comply with any term, provision or covenant contained in any agreement executed in connection with this AgreementAgreement or any other Basic Document, or with any Applicable Law with respect to any Loan comprising a portion of the CollateralContract or Receivable, or the nonconformity non-conformity of any Loan, the Related Property Contract with any such Applicable Law or and any failure by the Originator, the Borrower or any Affiliate thereof other Regional Management Entity to perform its respective duties under the Loans Contracts and Receivables included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a valid and enforceable first priority perfected security interest in any or all of the Collateral, except for Permitted Liens;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws Law with respect to any Collateral the Collateral, whether at the time of any Advance a Loan or at any subsequent time and as required by the Transaction Basic Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that Receivable comprising a portion of the Collateral which is, or is purported to be, an Eligible Loan Receivable (including, without limitation, (A) including a defense based on the Loan Receivable not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(vii) any failure of by the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred LoansAgreement;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related PropertyReceivable;
(ix) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances the Loans Outstanding or payment of Interest Interest, any obligation or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party entity believes in good faith is required to be repaid;
(xi) any litigation, proceeding or investigation (a) before any Governmental Authority (1) in respect of any Contract or Receivable, (2) relating to the use of the proceeds of the Loan or (3) related to this Agreement (A) that is not commenced by the Indemnified Party or (B) if so commenced, in which such Indemnified Party is not the prevailing party; provided, that no Indemnified Party shall be entitled to any indemnification for any item described in this clause resulting from such Indemnified Party’s gross negligence or willful misconduct or (b) relating to or arising from the Basic Documents, the transactions contemplated hereby and thereby, the use of proceeds of the Loans by the Borrower or any other investigation, litigation or proceeding related relating to this Agreement the Borrower or the use of proceeds of Advances or Servicer in respect which any Indemnified Party becomes involved as a result of any Transferred Loan or of the Related Propertytransactions contemplated by the Basic Documents;
(xii) the use of the proceeds of any Loan;
(xiii) any failure by the Borrower to give reasonably equivalent value to the Originator Regional Management in consideration for the transfer by the Originator Regional Management to the Borrower of any Transferred Loan or of the Related Property Receivables and the related Collateral or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, including any provision of the Bankruptcy Code, orany Insolvency Law;
(xiiixiv) the failure of the Borrower, the Originator or any of their respective agents or representatives Borrower to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower of any Collections with other funds;
(xv) all reasonable and documented fees, costs and expense (including reasonable legal fees and expenses) incurred by any Lender, their respective Credit Providers or the Administrative Agent in connection with entering into or giving or withholding any amendments or supplements or waivers or consents (including review and analysis thereof) with respect to the Basic Documents or any Affiliate of any collections.other document or instrument delivered pursuant hereto or thereto (whether or not the same is finally agreed to) if the same is requested by the Borrower or the Servicer, or is required or necessary under the Basic Documents; or
(bxvi) any and all civil penalties or fines assessed by OFAC against, and all reasonable costs and expenses (including attorneys’ fees and disbursements) incurred in connection with the defense thereof by any Indemnified Party as a result of funding all or any portion of the Loan or the acceptance of payments or of Collateral due under the Basic Documents. Any amounts subject to the indemnification provisions of this Section 9.1 11.01 payable by the Borrower shall be paid by the Borrower solely pursuant to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to 2.08 in the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loanorder and priority set forth therein.
Appears in 2 contracts
Samples: Credit Agreement (Regional Management Corp.), Credit Agreement (Regional Management Corp.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any the Document Custodian, the Securities Intermediary, the Secured Party or its assignee Parties, the Lenders and each of their respective Affiliates successors, assigns and directors, officers, directors, employees, members agents and agents thereof advisors (collectively, the “Indemnified Parties”), forthwith on demandthe next Payment Date following demand therefor, from and against any and all damages, losses, claimsclaims (whether brought by or involving the Borrower or any other third party), liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (limited to one firm of outside counsel and such one firm of local counsel) (all of the foregoing being collectively referred to as the “Indemnified Amounts”) awarded against or incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this AgreementAgreement (including enforcement of the indemnification obligations hereunder) or having an interest in the Collateral or in respect of any Loan included in the Collateral, excluding, however, any Indemnified Amounts to the extent resulting from (x) the nonpayment by any Obligor of an amount due and payable with respect to Collateral, any deterioration in the credit quality or market value of the Loans or other Collateral or otherwise to the extent constituting recourse for uncollectible or uncollected amounts in respect of any Collateral or (y) the gross negligence or willful misconduct on the part of any Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated Party as or represented determined by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one a court of its Affiliates) or any of their respective officers under or competent jurisdiction in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsfinal non-appealable judgment.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two on the Payment Date occurring at least five (25) Business Days following the Administrative Agentsuch Person’s demand therefor, which demand shall be accompanied by a reasonably detailed description in writing of the related damage, loss, claim, liability and related costs and expenses.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Borrower shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.1(a).
(d) The obligations of the Borrower under this Section 9.1 shall survive the resignation or removal of the Administrative Agent Agent, the Collateral Manager, the Collateral Custodian, the Document Custodian or any Managing Agent the Securities Intermediary and the termination of this Agreement.
(e) The parties hereto agree If the Borrower has made any payment in respect of such indemnity provisions and the recipient thereof later collects any payments from others (including insurance companies) in respect of such amounts, then the recipient agrees that the provisions of Section 9.1 it shall not be interpreted to provide recourse promptly repay to the Borrower such amounts collected.
(f) In no event shall the Borrower be liable to an Indemnified Party for any special, indirect, consequential or punitive damages. For the avoidance of doubt and notwithstanding the foregoing, the immediately preceding sentence shall not limit the Borrower’s indemnity obligations herein or in any other Transaction Document in respect of any such types of damages described in the immediately preceding sentence which are successfully asserted against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred LoanIndemnified Party and are otherwise Indemnified Amounts.
Appears in 2 contracts
Samples: Loan and Security Agreement (Cim Real Estate Finance Trust, Inc.), Loan and Security Agreement (Cim Real Estate Finance Trust, Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing AgentsTrustee, the Backup Servicer, any Successor ServicerSecured Parties, the Collateral Custodian, any Secured Party or its assignee Affected Parties and each of their respective Affiliates assigns and officers, directors, employees, members employees and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 the “Indemnified Amounts”) awarded against or incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this AgreementAgreement or holding an interest in the Collateral or in respect of any Loan included in the Collateral, excluding, however, Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of any such Indemnified Party. If the Borrower has made any indemnity payment pursuant to this Section 11.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts, then the recipient shall repay to the Borrower an amount equal to the amount it has collected from others in respect of such indemnified amounts. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (if the Originator or one of its AffiliatesAffiliates is the Servicer) or any of their respective officers under or in connection with this AgreementAgreement or any other Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iiiii) the failure by the Borrower or the Servicer (if the Originator or one of its AffiliatesAffiliates is the Servicer) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law Law, with respect to any Loan comprising a portion of the Collateral, Collateral or the nonconformity of any Loan, the Related Property Collateral with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iviii) the failure to vest and maintain vested in the Administrative Agent Trustee, for the benefit of the Secured Parties, a first priority perfected security interest in the Collateral, together with all Collections, free and clear of any Lien (other than Permitted Liens) whether existing at the time of any Advance or at any time thereafter;
(iv) the failure to maintain, as of the close of business on each Business Day prior to the Termination Date, an amount of Advances Outstanding that is less than or equal to the lesser of (x) the Facility Amount and (y) the Maximum Availability on such Business Day;
(v) the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral Collateral, whether at the time of any Advance or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of with respect to any Transferred Loan that is, or is purported to be, an Eligible Loan Collateral (including, without limitation, (A) a defense based on the Loan Collateral not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) any other claim resulting from the equitable subordination sale of the merchandise or services related to such Loan)Collateral or the furnishing or failure to furnish such merchandise or services;
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its AffiliatesAffiliates is the Servicer) to perform its duties or obligations in accordance with the provisions of this Agreement or any of the other Transaction Documents to which it is a party or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loansany Collateral;
(viii) the failure of any Concentration Account Bank to remit any amounts held in a Concentration Account pursuant to the instructions of the Servicer or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of the Intercreditor Agreement) whether by reason of the exercise of set-off rights or otherwise;
(ix) any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Borrower or the Originator to qualify to do business or file any notice or business activity report or any similar report;
(x) any action taken by the Borrower or the Originator (in its capacity as Servicer) in the enforcement or collection of any Collateral;
(xi) 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 merchandise the Related Property or services that are the subject of any Transferred Loan or the Related PropertyCollateral;
(ixxii) any claim, suit or action of any kind arising out of or in connection with Environmental Laws including any vicarious liability;
(xiii) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(xxiv) except as required by the second sentence in Section 11.1(a) of this Agreement and Section 2(c) of the Intercreditor Agreement, any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreementhereunder, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xixv) except for funds held in the Concentration Account, the commingling of Collections on the Collateral at any time with other funds;
(xvi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or the security interest in respect of any Transferred Loan or the Related PropertyCollateral;
(xiixvii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property item of Collateral or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, ;
(xviii) the use of the proceeds of any Advance in a manner other than as provided in this Agreement and the Sale Agreement; or
(xiiixix) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower Borrower, the Originator, the Servicer or any such agent or representative as provided in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsthis Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 11.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) five Business Days following the Administrative Agentsuch Person’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 11.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 11.1 shall survive the resignation or removal of the Administrative Agent Agent, the Servicer or any Managing Agent the Trustee and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Secured Loan and Servicing Agreement (NewStar Financial, Inc.), Secured Loan and Servicing Agreement (NewStar Financial, Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that the Lenders or the Administrative Agent or any such Person of their respective Affiliates, officers, directors, employees, representatives and agents (each, an “Indemnified Person”) may have hereunder or under Applicable Lawapplicable law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee and hold harmless each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, Person 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 “Indemnified Amounts”) awarded Amounts that may be claimed or asserted against or incurred by, by any such Indemnified Party Person in connection with or arising out of the transactions contemplated under this Agreement or under any other non-monetary damages of Related Document or any such Indemnified Party actions or failures to act in connection therewith, including any of them and all reasonably legal costs and expenses arising out of or incurred in connection with disputes between or among any parties to any of the Related Documents; provided, that the Borrower shall not be liable for any indemnification to an Indemnified Person to the extent that any such Indemnified Amount (x) results from such Indemnified Person’s gross negligence or willful misconduct, in each case as finally determined by a court of competent jurisdiction or (y) constitutes recourse for uncollectible or uncollected Transferred Receivables as a result of this Agreementthe insolvency, excluding, however, Indemnified Amounts to bankruptcy or the extent resulting from gross negligence failure (without cause or willful misconduct justification) or inability on the part of any Indemnified Partythe related Obligor to perform its obligations thereunder. Without limiting the generality of the foregoing, the Borrower shall indemnify the pay on demand to each Indemnified Parties for Person any and all Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their respective officers its officers) under or in connection with this Agreement, which Agreement or any other Related Document (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or on any other information delivered by the Borrower pursuant hereto or thereto that shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iiiii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement Agreement, any other Related Document or any agreement executed in connection with this Agreementherewith or therewith (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality), any applicable law, rule or with any Applicable Law regulation with respect to any Loan comprising a portion of Transferred Receivable or the CollateralContract therefor, or the nonconformity of any Loan, Transferred Receivable or the Related Property Contract therefor with any such Applicable Law applicable law, rule or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateralregulation;
(iv1) the failure to vest and maintain vested in the Borrower valid and properly perfected title to and sole record and beneficial ownership of the Receivables that constitute Transferred Receivables, together with all Collections in respect thereof and all other Borrower Collateral, free and clear of any Adverse Claim and (2) the failure to maintain or transfer to the Administrative Agent Agent, for the benefit of itself and the other Secured Parties, a first priority priority, perfected security interest Lien in any portion of the Borrower Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(viiv) any dispute, claim, offset or defense of any Obligor (other than the its discharge in bankruptcy of the Obligorbankruptcy) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Receivable (including, without limitation, (A) including a defense based on such Receivable or the Loan Contract therefor not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or any other claim resulting from the services giving rise to such Receivable or the furnishing of or failure to furnish such services or relating to collection activities with respect to such Receivable (Bif such collection activities were performed by any of its Affiliates acting as Servicer);
(v) any products liability claim or other claim arising out of or in connection with insurance or services that is the subject of any Contract with respect to any Transferred Receivable;
(vi) the equitable subordination commingling of such Loan)Collections with respect to Transferred Receivables by the Borrower at any time with its other funds or the funds of any other Person;
(vii) any failure by the Borrower to cause the filing of, or any delay in filing, financing statements or to cause the effectiveness of other similar instruments or documents under the UCC of any applicable jurisdiction or any other applicable laws with respect to any Transferred Receivable hereunder or any other Borrower Collateral, whether at the time of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement Borrower’s acquisition thereof or any failure by the Originator, the Borrower Advance made hereunder or at any Affiliate thereof to perform its respective duties under the Transferred Loanssubsequent time;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or any other Related Document or the use ownership of proceeds of Advances Receivables or Collections with respect thereto or any other investigation, litigation or proceeding relating to the Borrower, the Servicer or any Originator in respect which any Indemnified Person becomes involved as a result of any Transferred Loan of the transactions contemplated hereby or the by any other Related PropertyDocument;
(xiiix) any failure by of (x) a Collection Account Bank to comply with the terms of the applicable Collection Account Agreement, or (y) the Concentration Account Bank to comply with the terms of the Concentration Account Agreement;
(x) any Termination Event described in Section 8.01(d) or (e);
(xi) any failure of the Borrower to give reasonably equivalent value to the applicable Originator under the Sale Agreement in consideration for of the transfer by the such Originator to the Borrower of any Transferred Loan or the Related Property Receivable, or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision provisions or common law or equitable action, including, without limitation, ;
(xii) any provision action or omission by Borrower or any Transaction Party which reduces or impairs the rights of the Bankruptcy Code, orAdministrative Agent or the Secured Parties with respect to any Transferred Receivable or the value of any such Transferred Receivable;
(xiii) any attempt by any Person to void any Borrowing or the Lien granted hereunder under statutory provisions or common law or equitable action;
(xiv) any failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer a Collection Account Bank or the Administrative Agent, Collections on the Collateral remitted Concentration Account Bank to the Borrower or any such agent or representative in accordance comply with the terms hereof of the applicable Collection Account Agreement or the commingling by the Concentration Account Agreement; or
(xv) any withholding, deduction or Charge imposed upon any payments with respect to any Transferred Receivable, any Borrower Assigned Agreement or any Affiliate of any collectionsother Borrower Collateral.
(b) Any amounts Indemnified Amounts subject to the indemnification provisions of this Section 9.1 10.01 not paid in accordance with Section 2.08 shall be paid by the Borrower to the applicable Indemnified Party Person entitled thereto within two (2) Business Days ten days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Receivables Funding and Administration Agreement (Cumulus Media Inc), Receivables Funding and Administration Agreement (Cumulus Media Inc)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person the Administrative Agent, the Credit Parties, the Affected Persons and their respective assigns, officers, directors, agents and employees (each, a “Borrower Indemnified Party”) may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured each Borrower Indemnified Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, losses and liabilities and related costs and expenses, (including reasonable attorneys’ fees and disbursements Attorney Costs) (all of the foregoing being collectively referred to as “Borrower Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result resulting from this Agreement or any other Transaction Document or the use of proceeds of the Credit Extensions or the security interest in respect of any Pool Receivable or any other Collateral. Subject to the provisions of this AgreementSection 12.01, excluding, however, Indemnified Amounts to including the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Party. Without limiting the foregoingexclusions and qualifications set forth herein, the Borrower shall pay on demand (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 3.01), to each Borrower Indemnified Party any and all amounts necessary to indemnify the such Borrower Indemnified Parties for Party from and against any and all Borrower Indemnified Amounts relating to or resulting fromfrom any of the following:
(i) any Loan treated as or represented by Pool Receivable which the Borrower to be or the Servicer includes as an Eligible Loan that Receivable as part of the Net Receivables Pool Balance but which is not at the applicable time an Eligible LoanReceivable at such time;
(ii) reliance on any representation representation, warranty or warranty statement made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their its respective officers officers) under or in connection with this Agreement, any of the other Transaction Documents, any Information Package, Interim Report or any other information or report delivered by or on behalf of the Borrower pursuant hereto which shall have been false untrue or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, Pool Receivable or the nonconformity related Contract; or the failure of any Loan, Pool Receivable or the Related Property with related Contract to conform to any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in all or any portion of the Collateral, in each case free and clear of any Adverse Claim; provided, that, with respect to any Borrower Indemnified Amounts arising as a result of an Adverse Claim related to the Affected Filings prior to Borrower’s (or Servicer’s on Borrower’s behalf) compliance with the covenants set forth in Section 7.01(y), the definition of Adverse Claim shall be deemed to exclude the last clause of the definition of Adverse Claim;
(v) the failure to filehave filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable and the other Collateral and Collections in respect thereof, whether at the time of any Advance Credit Extension or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset claim or defense of an Obligor (not arising from the bankruptcy or insolvency, lack of creditworthiness or other than the discharge in bankruptcy financial default or inability to pay of the related Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Pool Receivable (including, without limitation, (A) a defense based on such Pool Receivable or the Loan related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) the equitable subordination of any other claim resulting from or relating to collection activities with respect to such Loan)Pool Receivable;
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform any of its duties or obligations in accordance with the provisions hereof and of this Agreement each other Transaction Document related to Pool Receivables or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection timely and fully comply with the CollateralCredit and Collection Policy in regard to each Pool Receivable;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Receivables Financing Agreement (OLIN Corp), Receivables Financing Agreement (OLIN Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral CustodianBank Parties, any Secured Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, liabilities liabilities, penalties, actions, suits, and judgments and related costs and expensesexpenses of any kind or nature whatsoever, including reasonable attorneys’ fees and disbursements that may be incurred by or asserted or awarded against any Indemnified Party or other non-monetary damages of any such Indemnified Party (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them in each case arising out of or as a result in connection with or by reason of the execution, delivery, enforcement, performance, administration of or otherwise arising out of or incurred in connection with this Agreement, any other Transaction Document, any Loan Document or any transaction contemplated hereby or thereby, excluding, however, (x) Indemnified Amounts arising due to the deterioration in the credit quality or market value of the Loans or other Collateral hereunder to the extent that such credit quality or market value was not misrepresented in any material respect by the Borrower or any of its Affiliates, (y) Indemnified Amounts to the extent resulting from fraud, gross negligence or willful misconduct on the part of any Indemnified PartyParty and (z) Indemnified Amounts constituting Indemnified Taxes. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Borrower or any of their respective its officers under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan included as part of the Collateral that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred LoansLoans included as a part of the Collateral;
(viii) 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 merchandise or services that are the subject of any Transferred Loan included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(ix) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) the commingling of Collections at any time with other funds;
(xi) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreementhereunder, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xixii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of proceeds of Advances or in respect of any Transferred Loan or included as part of the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan Collateral or the Related Property included as part of the Collateral of the ownership of any Loan or any attempt Related Property relating to any Loan or any other investigation, litigation or proceeding relating to the Borrower in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiii) any action or omission by the Borrower which reduces or impairs the rights of the Borrower or the Administrative Agent, any Person Managing Agent or any Secured Party with respect to void any Loan included as part of the Collateral or otherwise avoid the value of any such transfer Loan (other than any such action which is expressly permitted under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, Article VII hereof); or
(xiiixiv) the failure of the Borrower, the Originator Borrower or any of their respective its agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or of any other Transaction Document.
(xv) any inability to litigate any claim against any Obligor in respect of any Collateral as a result of such Obligor being immune from civil and commercial law and suit on the commingling grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(xvi) any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Borrower or to qualify to do business or file any notice or business activity report or any similar report;
(xvii) any action taken by the Borrower or any Affiliate its respective agents or representatives in the enforcement or collection of any collectionsCollateral or with respect to any Related Property; or
(xviii) any fraud or material misrepresentation by the Borrower or on the part of the Obligor with respect to any Loan.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two five (25) Business Days following the Administrative Agent’s (or such Indemnified Party’s) demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent, the Paying Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Credit Agreement (Runway Growth Finance Corp.), Credit Agreement (Runway Growth Credit Fund Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that which any such Person Affected Party may have hereunder or under Applicable Lawapplicable law (including the right to recover damages for breach of contract), the Borrower hereby agrees to indemnify each Lender, the Administrative Agent, each Managing Agent, the Managing AgentsPaying Agent, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee Custodian and each of Liquidity Provider, and their respective Affiliates and officers, directors, employees, members officers and agents thereof employees (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable external attorneys’ fees and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) ), awarded against or incurred by, any by such Indemnified Party to the extent relating to or other non-monetary damages of any such Indemnified Party any of them arising out of from or as a result of this Agreement, excluding, however, Indemnified Amounts Agreement or the funding or maintenance of Loans made by a Lender hereunder subject to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Partyproviso set forth below. Without limiting the foregoinggenerality of the foregoing indemnification, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts to the extent relating to or resulting fromfrom any of the following:
(i) the failure of any Pledged Timeshare Loan treated as or represented by the Borrower to be an Eligible Timeshare Loan that is not hereunder to be an “Eligible Timeshare Loan” at the applicable time an Eligible Loanof such representation;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Borrower under this Agreement or any of their respective officers under or in connection with this Agreement, other Facility Document to which it is a party which shall have been false or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement, the Sale and Contribution Agreement or any agreement executed in connection with this Agreement, other Facility Document to which it is party or with any Applicable Law applicable law, rule or regulation with respect to any Pledged Timeshare Loan comprising a portion of the or other Collateral, or the nonconformity of any Loan, the Related Property Pledged Timeshare Loan or other Collateral with any such Applicable Law applicable law, rule or regulation;
(iv) the failure to pay when due any failure Taxes, including sales, excise or personal property Taxes payable by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of in connection with the Collateral;
(ivv) the payment by such Indemnified Party of Indemnified Taxes, including any Indemnified 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 Borrower’s actions or failure to act in breach of this Agreement;
(vi) the failure to vest and maintain vested in the Administrative Agent Agent, on behalf of the Secured Parties, a first priority perfected security interest in the Collateral, free and clear of any Adverse Claim, whether existing at the time such Collateral arose or at any time thereafter;
(vvii) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the applicable UCC of any applicable jurisdiction or other Applicable Laws applicable laws naming the Borrower as “Debtor” with respect to any Collateral;
(viii) the failure by eOriginal, DocuSign, SignPost, the Custodian or any other Person that may be a party to the foregoing, to comply with any term, provision or covenant contained in the Electronic Collateral whether Control Agreement, the DocuSign Agreement, the SignPost Agreement, the E-Vault Access Agreement, the Custody Agreement or this Agreement, as applicable, in respect of any Electronic Document;
(ix) any system failure, loss of data, data breach or other impairment with respect to, or any inability of the Custodian, the Servicer, the Borrower or the Administrative Agent to access, the Warehouse Vault Partition (including the eOriginal System) or the Electronic Documents therein, unless such system failure, loss of data, data breach or other impairment is due to the gross negligence or willful misconduct of such Indemnified Party;
(x) the failure of the DocuSign System or the SignPost System, as applicable, to create or the Warehouse Vault Partition to maintain a single Authoritative Copy of an Electronic Loan Document or the eOriginal System or the Warehouse Vault Partition not being maintained in accordance with the eOriginal System Description;
(1) the creation, generation, communication or transfer of the Timeshare Loans by electronic means, (2) the utilization by the Borrower or the Servicer of the web portal, eOriginal System or software of eOriginal with respect to the Warehouse Vault Partition, (3) the failure of the eOriginal System to create and maintain a single Authoritative Copy of an Electronic Loan Document or to otherwise conform to the eOriginal’s System Description, except due to a modification made by or at the time direction of any Advance the Custodian not in compliance with the terms of this Agreement or the Electronic Collateral Control Agreement or not at any subsequent time and as required by the Transaction direction of the Administrative Agent, or (4) the negligence, or fraudulent or willful misconduct, of eOriginal in connection with the Electronic Documents;
(vixii) any dispute, claim, offset or defense (other than the discharge in bankruptcy as a result of the bankruptcy or insolvency of the related Obligor) of the an Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Pledged Timeshare Loan (including, without limitation, (A) including a defense based on the such Pledged Timeshare Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms);
(xiii) the commingling of Collections with any other funds;
(xiv) any failure by the Borrower to give reasonably equivalent value to the Seller in consideration for the transfer by the Seller to the Borrower of any Pledged Timeshare Loan, or any attempt by any Person to void any such transfer under any statutory provision or common law or equitable action, including any provision of the Bankruptcy Code;
(xv) (A) the failure of the Clearing Account Bank to remit any Collections held in the Clearing Account to the Collection Account as provided in the Clearing Account Control Agreement or any Collections held in the Unidentified Receipts Account to the Clearing Account, whether by reason of the exercise of setoff rights or otherwise, or (B) any claim by the equitable subordination Clearing Account Bank for indemnification by the Administrative Agent pursuant to the terms of such Loan)the Clearing Account Control Agreement;
(viixvi) any (A) the failure of the Borrower Diamond Lockbox Account Bank to remit any Collections held in the Diamond Lockbox Account to the Collection Account as provided in the Diamond Lockbox Account Control Agreement, whether by reason of the exercise of setoff rights or the Servicer otherwise, or (if the Originator or one of its AffiliatesB) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure claim by the Originator, Diamond Lockbox Account Bank for indemnification by the Borrower or any Affiliate thereof Administrative Agent pursuant to perform its respective duties under the Transferred Loansterms of the Diamond Lockbox Account Control Agreement;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xixvii) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances Loans made pursuant to this Agreement or any other Facility Document delivered hereunder or in respect of any Transferred Loan or of the Related Property;Collateral; and
(xiixviii) any failure the grant by the Borrower of a security interest in any Pledged Timeshare Loan in violation of any applicable law, rule or regulation; provided, however, that the Borrower shall not be required to give reasonably equivalent value indemnify any Indemnified Party to the Originator in consideration for the transfer by the Originator to the Borrower extent of any Transferred Loan amounts (x) resulting from the gross negligence or the Related Property willful misconduct of such Indemnified Party, or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiiiy) constituting credit recourse for the failure of the Borroweran Obligor to pay a Pledged Timeshare Loan, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(bz) constituting Excluded Taxes. Any amounts subject to the indemnification provisions of this Section 9.1 8.01 shall be paid by the Borrower to the applicable related Indemnified Party within two ten (210) Business Days following the Administrative Agent’s written demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Receivables Loan Agreement, Sale and Contribution Agreement, Master Transfer Agreement, Custody Agreement (Hilton Grand Vacations Inc.), Receivables Loan Agreement (Hilton Grand Vacations Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that which the Affected Parties, the Secured Parties, the Administrative Agent, the Lenders, the Collateral Agent or any such Person of their respective Affiliates may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Affected Parties, the Secured Parties, Administrative Agent, the Managing Agents, the Backup Servicer, any Successor ServicerLenders, the Collateral Custodian, any Secured Party or its assignee Agent and each of their respective Affiliates and Affiliates, assigns, officers, directors, employees, members employees and agents thereof (collectivelyeach, the an “Indemnified Parties”), forthwith on demand, Party” for purposes of this Article VIII) 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 “Indemnified Amounts”) ), awarded against or actually incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this AgreementAgreement or in respect of any of the Collateral Portfolio, excluding, however, Indemnified Amounts to the extent resulting solely from (a) gross negligence negligence, bad faith or willful misconduct on the part of any an Indemnified PartyParty or (b) Loan Assets which are uncollectible due to the Obligor’s financial inability to pay. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts relating to or resulting from:from any of the following (to the extent not resulting from the conditions set forth in (a) or (b) above):
(i) any Loan Asset treated as or represented by the Borrower to be an Eligible Loan that Asset which is not at the applicable time an Eligible LoanLoan Asset, or the purchase by any party or origination of any Loan Asset which violates Applicable Law;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (if Fifth Street or one of its AffiliatesAffiliates is the Servicer) or any of their respective officers under or in connection with this AgreementAgreement or any Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (if Fifth Street or one of its AffiliatesAffiliates is the Servicer) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion item of the CollateralCollateral Portfolio, or the nonconformity of any Loan, the Related Property item of Collateral Portfolio with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent Collateral Agent, for the benefit of the Secured Parties, a first priority perfected security interest in the CollateralCollateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or at any time thereafter;
(v) on each Business Day prior to the Collection Date, the occurrence of a Borrowing Base Deficiency and the same continues unremedied for three Business Days;
(vi) the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws Law with respect to any Loan Assets included in the Collateral Portfolio or the other Portfolio Assets related thereto, whether at the time of any Advance or at any subsequent time and as required by the Transaction Documentstime;
(vivii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the an Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Asset included in the Collateral Portfolio (including, without limitation, (A) a defense based on such Loan Asset (or the Loan Agreement evidencing such Loan Asset) not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) any other claim resulting from the equitable subordination sale of the merchandise or services related to such Loan)Collateral Portfolio or the furnishing or failure to furnish such merchandise or services;
(viiviii) any failure of the Borrower or the Servicer (if the Originator Fifth Street or one of its AffiliatesAffiliates is the Servicer) to perform its duties or obligations in accordance with the provisions of this Agreement the Transaction Documents to which it is a party or any failure by the OriginatorFifth Street, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loansany Collateral Portfolio;
(viiiix) any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Borrower or the Transferor to qualify to do business or file any notice or business activity report or any similar report;
(x) any action taken by the Borrower or the Servicer in the enforcement or collection of the Collateral Portfolio which results in any claim, suit or action of any kind pertaining to the Collateral Portfolio or which reduces or impairs the rights of the Administrative Agent or Lender with respect to any Loan Asset or the value of any such Loan Asset;
(xi) 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 merchandise the Underlying Collateral or services that are the subject of any Transferred Loan or the Related PropertyCollateral Portfolio;
(ixxii) any claim, suit or action of any kind arising out of or in connection with Environmental Laws relating to the Borrower or the Collateral Portfolio, including any vicarious liability;
(xiii) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including including, without limitation, sales, excise or personal property taxes Taxes payable in connection with the CollateralCollateral Portfolio;
(xxiv) any repayment by the Administrative Agent, any Managing Agent the Lenders or a Secured Party of any amount previously distributed in reduction payment of Advances Outstanding or payment of Interest Yield or Fees or any other amount due hereunder or under any Hedging Agreementhereunder, in each case which amount the Administrative Agent, such Managing Agent the Lenders or a Secured Party believes in good faith is required to be repaid;
(xixv) the commingling by the Borrower or the Servicer of payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;
(xvi) any investigation, litigation or proceeding related to this Agreement (or the Transaction Documents), or the use of proceeds of Advances or in respect of any Transferred Loan the Collateral Portfolio, or the Related Propertyadministration of the Loan Assets by the Borrower or the Servicer (unless such administration is carried out by SMBC or any of its Affiliates in the capacity of the Servicer, if applicable);
(xiixvii) any failure by the Borrower to give reasonably equivalent value to the Originator Transferor in consideration for the transfer by the Originator Transferor to the Borrower of any Transferred Loan or the Related Property item of Collateral Portfolio or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or;
(xiiixviii) the use of the proceeds of any Advance in a manner other than as provided in this Agreement and the Transaction Documents; and/or
(xix) any failure of the Borrower, the Originator Servicer or any of their respective agents or representatives to remit to the Servicer or the Administrative AgentCollection Account within one Business Day of receipt, Collections on payments and collections with respect to the Collateral Portfolio remitted to the Borrower Borrower, the Servicer or any such agent or representative in accordance with (other than such a failure on the terms hereof or the commingling by the Borrower part of SMBC or any Affiliate of any collectionsits Affiliates in the capacity of Servicer, if applicable).
(b) Any amounts subject to the indemnification provisions of this Section 9.1 8.01 shall be paid by the Borrower to the Administrative Agent on behalf of the applicable Indemnified Party within two (2) five Business Days following receipt by the Borrower of the Administrative Agent’s written demand therefortherefor 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 8.01, shall submit to the 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 9.1 8.01 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmlessharmless in respect of any losses, claims, damages or liabilities, then the BorrowerBorrower or the Servicer, as the case may be, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losslosses, claimclaims, damage damages or liability 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 BorrowerBorrower or the Servicer, as the case may be, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) If the Borrower has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 8.01 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Borrower, without interest.
(e) The obligations of the Borrower under this Section 9.1 8.01 shall survive the resignation or removal of the Administrative Agent Agent, the Lenders, the Servicer or any Managing the Collateral Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Fifth Street Finance Corp.), Loan and Servicing Agreement (Fifth Street Finance Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that which any such Person Indemnified Party (as defined below) may have hereunder or under Applicable Lawapplicable law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing AgentsLenders, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any each Affected Party and each other Secured Party or its assignee and each of their respective Affiliates and officers, directors, employees, members agents and agents thereof employees (collectively, the each an “Indemnified PartiesParty”), forthwith on demand, ) from and against any and all damages, losses, claims, liabilities liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or reasonably incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party by any of them arising out of or as a result of this AgreementAgreement or the acquisition, either directly or indirectly, by any Secured Party of an interest in the Assets, excluding, however, Indemnified Amounts to the extent resulting a final non-appealable judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of any such Indemnified Party. Without limiting the foregoinggenerality of the foregoing indemnification, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Assets, regardless of whether reimbursement therefor would constitute recourse to the Borrower, but excluding Indemnified Amounts to the extent final non-appealable judgment of a court of competent jurisdiction holds such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of such Indemnified Party) relating to or resulting from:
(ia) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrowerany GWG Party, the Servicer (or one of its Affiliates) any Servicer, any Life Settlement Provider or any Originator or any officer or employee of their respective officers the foregoing under or in connection with this AgreementAgreement any Master Servicer’s Certificate, or any Borrowing Base Certificate or any other Related Document or any other information or report delivered by any such party pursuant to any Related Document, which shall have been false or incorrect in any material respect when made or deemed made or deliveredmade;
(iiib) the failure by the Borrower any GWG Party, any Servicer, any Life Settlement Provider or the Servicer (or one of its Affiliates) any Originator to comply with any termapplicable law, provision rule or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law regulation with respect to any Loan comprising a portion of the CollateralAsset, Other Conveyed Property or Asset Documents related thereto, or the nonconformity of any LoanAsset, the Related Other Conveyed Property or Asset Documents related thereto with any such Applicable Law applicable law, rule or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateralregulation;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(viic) any failure of the Borrower any GWG Party, any Servicer, any Life Settlement Provider or the Servicer (if the any Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement Agreement, any other Related Document, any Asset Documents, or any failure by the Originator, the Borrower other contract or any Affiliate thereof agreement related to perform its respective duties under the Transferred Loansa Asset or Other Conveyed Property with respect thereto;
(viiid) 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 merchandise or services that are any transaction which is the subject of any Transferred Loan Asset Document, any Asset or the Related Propertyany Other Conveyed Property with respect thereto;
(ixe) any dispute, claim, offset or defense (other than discharge in bankruptcy of the failure by Borrower Obligor) of any Obligor, any Insured, or any Life Settlement Provider to pay when due the payment of any Taxes for which the Borrower is liableAsset (including, including without limitation, salesa defense based on such Asset or any related Asset Document not being a legal, excise valid and binding obligation of the related Obligor, Insured, or personal property taxes payable Life Settlement Provider, as applicable, enforceable against it in connection accordance with its terms), or any other claim relating to a Asset or any Asset Document,
(f) the Collateralcommingling of Collections at any time with other funds;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xig) any investigation, litigation or proceeding related to or arising from this Agreement or any other Related Document, the transactions contemplated hereby or thereby, the use of the proceeds of Advances, the holding of the security interest created hereunder or any other investigation, litigation or proceeding relating to any GWG Party, any Servicer, any Life Settlement Provider or any Originator, the Assets or Other Conveyed Property in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby or thereby;
(h) any failure to vest and maintain vested in the Agent, for the benefit of the Secured Parties, a first priority perfected security interest in the Collateral as described in this Agreement or the use of proceeds of Advances or in respect existence of any Transferred Loan Adverse Claim upon or with respect to the Related Property;Collateral; or
(xiii) any failure by to vest and maintain vested in the Borrower legal and equitable title to, and ownership of, the Assets, the Other Conveyed Property and the Collections, free and clear of any Adverse Claim (other than Adverse Claims created pursuant to this Agreement); or any failure of the Borrower to give reasonably equivalent value to the Originator Seller under the Sale and Servicing Agreement in consideration for of the transfer by the Originator to the Borrower Seller of any Transferred Loan Asset or any Other Conveyed Property with respect thereto; or any failure of the Related Seller to give reasonably equivalent value to any Life Settlement Provider, as applicable, in consideration of the transfer by such Life Settlement Provider, as applicable, of any Asset or any Other Conveyed Property with respect thereto; or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision provisions or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code. Notwithstanding anything to the contrary in this Agreement, or
(xiii) the failure solely for purposes of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above obligations set forth in this Section 9.1 is unavailable to the Indemnified 8.01, any representations, warranties and covenants made by any GWG Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid any Servicer in this Agreement or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault Related Documents which are qualified by or limited to events or circumstances which have, or are reasonably likely to have, given rise to a Material Adverse Effect or are qualified or limited by other concepts of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 materiality, shall not be interpreted deemed to provide recourse to the Borrower against loss by reason of the bankruptcy be so qualified or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loanlimited.
Appears in 2 contracts
Samples: Credit and Security Agreement (GWG Holdings, Inc.), Credit and Security Agreement (GWG Holdings, Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor ServicerCollateral Custodian, the Collateral CustodianAdministrator, any the Securities Intermediary, the Secured Party or its assignee Parties, the Lenders and each of their respective Affiliates assigns and directors, officers, directors, employees, members agents and agents thereof advisors (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claimsclaims (whether brought by or involving the Borrower or any other third party), liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (limited to one primary counsel and such other local or special counsel as may be necessary) (all of the foregoing being collectively referred to as the “Indemnified Amounts”) awarded against or incurred by, any by such Indemnified Party or and other non-monetary damages of any such Indemnified Party or any of them arising out of or as a result of this AgreementAgreement (including enforcement of the indemnification obligations hereunder) or having an interest in the Collateral or in respect of any Loan included in the Collateral, excluding, however, any Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified PartyParty as determined by a court of competent jurisdiction in a final non-appealable judgment. If the Borrower has made any indemnity payment pursuant to this Section 10.1 and Section 10.3 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts then, the recipient shall repay to the Borrower an amount equal to the amount it has collected from others in respect of such indemnified amounts. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts (except to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party) relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Collateral Manager or any of their respective officers under or in connection with this AgreementAgreement or any other Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(ii) the failure of any Loan acquired on the Effective Date to be an Eligible Loan as of the Effective Date and the failure of any Loan acquired after the Effective Date to be an Eligible Loan on the related Funding Date;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) Collateral Manager to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law Law, with respect to any Loan comprising a portion of the Collateral, Collateral or the nonconformity of any Loan, the Related Property Collateral with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security Agent, as agent for the Secured Parties, an undivided interest in the Collateral, together with all Collections, free and clear of any Lien (other than a Permitted Lien) whether existing at the time of any Advance or at any time thereafter;
(v) [reserved];
(vi) the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws Law with respect to any Collateral Collateral, whether at the time of any Advance or at any subsequent time and as required by the Transaction Documentstime;
(vivii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of with respect to any Transferred Loan that is, or is purported to be, an Eligible Loan Collateral (including, without limitation, (A) including a defense based on the Loan Collateral not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) any other claim resulting from the equitable subordination sale of the merchandise or services related to such Loan)Collateral or the furnishing or failure to furnish such merchandise or services;
(viiviii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) any FS/KKR Party to perform its duties or obligations in accordance with the provisions of this Agreement or any of the other Transaction Documents to which it is a party or any failure by the Originator, the Borrower any FS/KKR Party or any Affiliate thereof to perform its respective duties under the Transferred Loansany Collateral;
(viiiix) any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Borrower or the Transferor to qualify to do business or file any notice or business activity report or any similar report;
(x) any action taken by the Borrower or the Collateral Manager in the enforcement or collection of any Collateral in breach of the servicing and administration standards set forth in Article VI of this Agreement;
(xi) 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 merchandise the Underlying Assets or services that are the subject of any Transferred Loan or the Related PropertyCollateral;
(ixxii) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(xxiii) any repayment by the Administrative Agent, any Managing Agent or a another Secured Party of any amount previously distributed in reduction repayment of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreementhereunder, in each case case, which amount the Administrative Agent, such Managing Agent or a another Secured Party believes in good faith is required to be repaid;
(xixiv) except with respect to funds held in the Collection Account, the commingling of Collections on the Collateral at any time with other funds;
(xv) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or the security interest in respect of any Transferred Loan or the Related PropertyCollateral;
(xiixvi) any failure by the Borrower to give reasonably equivalent value to the Originator Transferor or to the applicable third party transferor, in consideration for the transfer by the Originator Transferor or such third party to the Borrower of any Transferred Loan or the Related Property item of Collateral or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, including any provision of the Bankruptcy Code, or;
(xiiixvii) the use of the proceeds of any Advance in a manner other than as provided in this Agreement and the Sale Agreement or any Third Party Sale Agreement;
(xviii) the failure of the Borrower, the Originator Borrower or any of their respective its agents or representatives to remit to the Servicer Collateral Manager or the Administrative Agent, Collections on the Collateral remitted to the Borrower Borrower, the Collateral Manager or any such agent or representative as provided in accordance with this Agreement; or
(xix) the terms hereof or failure of the commingling by Collateral Manager to satisfy its obligations under Section 4(a) of the Borrower or any Affiliate of any collectionsCollateral Management Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 10.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days on the Payment Date following the Administrative Agentsuch Person’s demand therefor, accompanied by a reasonably detailed description in writing of the related damage, loss, claim, liability and related costs and expenses.
(c) If for any reason the indemnification provided above in this Section 9.1 10.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Borrower shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 10.1(a).
(d) The obligations of the Borrower under this Section 9.1 10.1 shall survive the resignation or removal of the Administrative Agent Agent, the Collateral Manager, the Collateral Custodian, the Securities Intermediary or any Managing Agent the Collateral Administrator and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan and Security Agreement (KKR FS Income Trust), Loan and Security Agreement (KKR FS Income Trust)
Indemnities by the Borrower. (a) Without limiting any other rights that the Administrative Agent, the Credit Parties, the other Affected Persons and their respective assigns, officers, directors, agents and employees (each, a “Borrower Indemnified Party”) and any such Person WT Indemnified Parties may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agentindemnify, the Managing Agentsdefend, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured release and hold harmless each Borrower Indemnified Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “WT Indemnified Parties”), forthwith on demand, Party from and against any and all damagesclaims, actions, suits, losses, claimsliabilities, liabilities proceedings at law or in equity, and related costs (including in respect of any claims brought by any DSG Party) and any other expenses, including reasonable attorneys’ fees or charges of any character or nature (including, without limitation, Attorney Costs and disbursements the costs of enforcement of this Agreement, any Transaction Document or any provision thereof) (all of the foregoing being collectively referred to as “Borrower Indemnified Amounts”) awarded against or incurred by, any such which a Borrower Indemnified Party or WT Indemnified Party may incur or which may be asserted against it resulting from this Agreement or any other non-monetary damages Transaction Document or the use of proceeds of the Credit Extensions or the security interest in respect of any such Indemnified Party Pool Receivable or any of them arising out of or as a result of this Agreement, other Collateral; excluding, however, (a) Borrower Indemnified Amounts to the extent (x) resulting from the gross negligence or willful misconduct of the Borrower Indemnified Party or WT Indemnified Party seeking indemnification, as determined by a final non-appealable judgment of a court of competent jurisdiction, (y) solely with respect to the Borrower Indemnified Parties (other than the Back-up Servicer), resulting solely from a material breach of any Transaction Document on the part of any such Borrower Indemnified Party, as determined by a final non-appealable judgment of a court of competent jurisdiction, or (z) solely with respect to the Borrower Indemnified Parties (other than the Back-up Servicer), that constitute recourse with respect to a Pool Receivable by reason of an Event of Bankruptcy or insolvency, or the financial or credit condition or financial default, of the related Obligor, and (b) solely with respect to the Borrower Indemnified Parties (other than the Back-up Servicer), Taxes (other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax Claim). Without limiting or being limited by the foregoing, the Borrower shall pay on demand (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 3.01), to each Borrower Indemnified Party and each WT Indemnified Party any and all amounts necessary to indemnify the such Borrower Indemnified Parties for Party or WT Indemnified Party from and against any and all Borrower Indemnified Amounts relating to or resulting from:from any of the following (but excluding Borrower Indemnified Amounts and Taxes described in clauses (a) and (b) above):
(i) any Loan treated as or represented by Pool Receivable which the Borrower to be includes as an Eligible Loan that Receivable as part of the Net Pool Balance but which is not at the applicable time an Eligible LoanReceivable at such time;
(ii) reliance on any representation representation, warranty or warranty statement made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their respective officers its officers) under or in connection with this Agreement, any of the other Transaction Documents, any Information Package, any Loan Request, any Release Certificate or any other written information (including e-mail or other electronically transmitted information) or report delivered by or on behalf of the Borrower pursuant hereto which shall have been false been, taken as a whole, untrue or incorrect in any material respect in light of the circumstances when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, Pool Receivable or the nonconformity related Contract; or the failure of any Loan, Pool Receivable or the Related Property with related Contract to conform to any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Collateral Agent a first priority perfected security interest in all or any portion of the Collateral, in each case free and clear of any Adverse Claim;
(v) the failure to filehave filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable and the other Collateral and Collections in respect thereof, whether at the time of any Advance Credit Extension or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligorbankruptcy) of the an Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Pool Receivable (including, without limitation, (A) including a defense based on such Pool Receivable or the Loan related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), any other claim resulting from or (B) relating to collection activities with respect to such Pool Receivable, or any other claim resulting from the equitable subordination sale of goods or rendering of services related to such Loan)Pool Receivable or the furnishing or failure to furnish any such goods or services or other similar claim or defense not arising from the financial inability of nay Obligor to pay undisputed indebtedness;
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform any of its duties or obligations in accordance with the provisions hereof and of this Agreement each other Transaction Document related to Pool Receivables or any failure by to timely and fully comply with the Originator, the Borrower or any Affiliate thereof Credit and Collection Policy in regard to perform its respective duties under the Transferred Loanseach Pool Receivable;
(viii) the commingling of Collections of Pool Receivables at any products liability claim or personal injury or property damage suit or time with other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services that are the subject of any Transferred Loan or the Related Propertyfunds;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or any other Transaction Document or the use of proceeds of Advances any Credit Extensions or in respect of any Transferred Loan Pool Receivable or other Collateral or any related Contract (except to the extent relating to a credit losses on the Pool Receivable by reason of an Event of Bankruptcy or insolvency, or the Related Propertyfinancial or credit condition or financial default, of the related Obligor);
(x) any failure of the Borrower to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(xi) any failure by any DSG Party to obtain any Obligor’s consent to any transfer, sale or assignment of any rights and duties under a Contract that requires the Obligor thereunder to consent to any such transfer, sale or assignment of any rights and duties thereunder;
(xii) any failure by the Borrower setoff with respect to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, orPool Receivable;
(xiii) the any failure of the Borrower, the Borrower or any Originator or to perform any of their respective agents duties or representatives obligations under any Contract related to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the any Receivable;
(xiv) any claim brought by any Person other than a Borrower or Indemnified Party arising from any such agent or representative in accordance with the terms hereof or the commingling activity by the Borrower or any Affiliate of the Borrower in servicing, administering or collecting any collectionsPool Receivable;
(xv) any failure of a Collection Account Bank to comply with the terms of the applicable Account Control Agreement or any amounts payable by the Administrative Agent to a Collection Account Bank under any Account Control Agreement;
(xvi) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Pool Receivable (including a defense based on such Pool Receivable or the related Contract or Agency Letter not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to such Pool Receivable or the furnishing or failure to furnish any such goods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(xvii) the use of proceeds of any Credit Extension; or
(xviii) any reduction in Loans as a result of the distribution of Collections if all or a portion of such distributions shall thereafter be rescinded or otherwise must be returned for any reason.
(b) Any amounts subject The foregoing indemnities shall apply whether or not liabilities and costs set forth above are in any way or to the indemnification provisions any extent owed, in whole or in part, under any claim or theory of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) strict liability. If for any reason the foregoing indemnification provided above in this Section 9.1 is unavailable to the any Borrower Indemnified Party or is WT Indemnified Party or insufficient to hold an Indemnified Party it harmless, then the Borrower, Borrower shall contribute to such Borrower Indemnified Party or WT Indemnified Party the amount paid or payable by such Borrower Indemnified Party or WT Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party economic interests of the Borrower and its Affiliates on the one hand and the Borrower, such Borrower Indemnified Party on the other hand but also in the matters contemplated by this Agreement as well as the relative fault of the Borrower and its Affiliates and such Borrower Indemnified Party as well as or WT Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations.
(d) . The reimbursement, indemnity and contribution obligations of the Borrower under this Section 9.1 shall be in addition to any liability which the Borrower may otherwise have, shall extend upon the same terms and conditions to each Borrower Indemnified Party or WT Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Borrower and the Borrower Indemnified Parties or WT Indemnified Parties.
(c) Any indemnification or contribution under this Section 12.01 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this AgreementAgreement or the earlier resignation or removal of any WT Indemnified Party or any Back-up Servicer.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan and Security Agreement (Sinclair Broadcast Group Inc), Loan and Security Agreement (Sinclair Broadcast Group Inc)
Indemnities by the Borrower. (a) Without limiting any other rights that which any such Affected Person may have hereunder or under Applicable Lawapplicable law (including, without limitation, the right to recover damages for breach of contract), the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee and hold harmless each of Affected Person and their respective Affiliates and officersAffiliates, directorsagents, employees, members officers, and agents thereof directors (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable external attorneys’ fees and disbursements and all costs and expenses incurred, including reasonable external attorneys’ fees and disbursements, in connection with the enforcement of this provision (all of the foregoing being collectively referred to as “Indemnified Amounts”) ), awarded against or incurred by, any by such Indemnified Party to the extent relating to or other non-monetary damages of any such Indemnified Party any of them arising out of from or as a result of this Agreement, excludingthe funding, howeverissuing or maintenance of Credit Extensions hereunder, Indemnified Amounts the use of the Letters of Credit, or proceeds of Loans or Releases, or any interest therein, or in respect of any Pool Receivable, Related Security or Contract, or in respect of any other Facility Document subject to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Partyproviso set forth below. Without limiting the foregoinggenerality of the foregoing indemnification, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts to the extent relating to or resulting fromfrom any of the following:
(i) the failure of any Loan treated as or Pool Receivable represented by the Borrower to be an Eligible Loan that is not Receivable hereunder to be an “Eligible Receivable” at the applicable time an Eligible Loanof such representation;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Borrower under this Agreement or any of their respective officers under or in connection with this Agreement, other Facility Document to which it is a party which shall have been false or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement, the Receivables Sale Agreement or any agreement executed in connection with this Agreement, other Facility Document to which it is party or with any Applicable Law applicable law, tariff, rule or regulation with respect to any Loan comprising a portion of Pool Receivable, the Collateralrelated Contract, or the Related Security, or the nonconformity of any LoanPool Receivable, the related Contract or the Related Property Security with any such Applicable Law applicable law, tariff, rule or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateralregulation;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise goods or services that services, the sale or provision of which gave rise to or are the subject of any Transferred Loan Pool Receivable or the Related PropertyContract;
(ixv) the failure by Borrower to pay when due any Taxes for which the Borrower is liabletaxes, including including, without limitation, sales, excise or personal property taxes payable by the Borrower in connection with the Collateral;
(xvi) the payment by such Indemnified Party of taxes, including, without limitation, any repayment 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 Borrower’s actions or failure to act in breach of this Agreement;
(vii) the failure to vest and maintain vested in the Administrative Agent, any Managing Agent or on behalf of the Secured Parties, a Secured Party first priority perfected security interest in the Pool Receivables, together with all Collections, Related Security and other Collateral, free and clear of any amount previously distributed Lien except a Lien in reduction favor of Advances Outstanding any Affected Person, whether existing at the time such Pool Receivable arose or at any time thereafter;
(viii) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the applicable UCC or other applicable laws naming the Borrower as “Debtor” with respect to any Collateral;
(ix) any dispute, claim, offset or defense (other than as a result of the bankruptcy or insolvency of the related Obligor) of an Obligor to the payment of Interest any Pool Receivable (including, without limitation, a defense based on such Pool Receivable not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other amount due hereunder claim resulting from the sale of goods or under services related to such Pool Receivable or the furnishing or failure to furnish such goods or services (other than as a result of the bankruptcy or insolvency of the related Obligor);
(x) the commingling of Collections with any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaidother funds;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property Pool Receivables, or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code;
(xii) the failure of any Deposit Account Bank to remit any amounts or items of payment held in a Deposit Account or in a Lock-Box pursuant to the instructions of the Administrative Agent given in accordance with this Agreement, orthe applicable Deposit Account Control Agreement or the other Facility Documents, whether by reason of the exercise of setoff rights or otherwise;
(xiii) any investigation, litigation or proceeding related to this Agreement, or the use of proceeds of Loans made pursuant to this Agreement or any other Facility Document delivered hereunder or in respect of any of the Collateral;
(xiv) any claim brought by any Person arising from any activity by the Borrower in servicing, administering or collecting any Pool Receivable;
(xv) the grant by the Borrower of a security interest in any Receivable in violation of any applicable law, tariff, rule or regulation;
(xvi) the failure of the BorrowerBorrower to furnish accurate and complete documentation (including, without limitation, a Contract or invoice) to any Obligor;
(xvii) the Originator failure of any Payment Processor, Sub-Servicer or any other third party with a contractual relationship with the Borrower for the acceptance or processing of their respective agents or representatives Collections, to remit any Collections received by it to a Lock-Box or a Deposit Account within two (2) Business Days of receipt;
(xviii) the failure of any Transaction Party to pay when due any Direct Taxes, energy surcharges or other governmental charges payable by it in connection with the Pool Receivables or the Facility Documents;
(xix) the amendment, modification or termination of any tariff or similar contract governing any Pool Receivable or the activities of the Borrower; or
(xx) the failure of the sale and pledge of any Pool Receivable under the Facility Documents to comply with the requirements of the Federal Assignment of Claims Act or any analogous State or local Laws. provided, however, that the Borrower shall not be required to indemnify any Indemnified Party to the Servicer extent of any amounts (x) resulting from the gross negligence or the Administrative Agent, Collections on the Collateral remitted willful misconduct of such Indemnified Party as determined by final non-appealable judgment of a court of competent jurisdiction; (y) for which indemnification would constitute recourse (except as otherwise specifically provided in this Agreement to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling be paid by the Borrower hereunder) for uncollectible Receivables; or (z) in respect of Taxes other than any Affiliate of Taxes that represent losses, claims, damages, etc. arising from any collections.
(b) non-Tax claim. Any amounts subject to the indemnification provisions of this Section 9.1 8.01 shall be paid by the Borrower to the applicable related Indemnified Party within two five (25) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Receivables Loan and Servicing Agreement (NRG Energy, Inc.), Receivables Loan and Servicing Agreement (NRG Energy, Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person the Administrative Agent, the Credit Parties, the Affected Persons and their respective assigns, officers, directors, agents and employees (each, a “Borrower Indemnified Party”) may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured each Borrower Indemnified Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, losses and liabilities and related costs and expenses, (including reasonable attorneys’ fees and disbursements Attorney Costs) (all of the foregoing being collectively referred to as “Borrower Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result resulting from this Agreement or any other Transaction Document or the use of this Agreement, proceeds of the Credit Extensions or the security interest in respect of any Pool Receivable or any other Collateral; excluding, however, (a) any portion of Borrower Indemnified Amounts to the extent resulting a final non-appealable judgment of a court of competent jurisdiction holds that such portion of such Borrower Indemnified Amounts resulted from the bad faith, gross negligence or willful misconduct on by the part of Borrower Indemnified Party seeking indemnification and (b) Taxes other than as described in clause (xiv) below or Taxes that represent losses, claims or damages arising from any Indemnified Partynon-Tax claim. Without limiting or being limited by the foregoing, the Borrower shall pay on demand (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 4.01), to each Borrower Indemnified Party any and all amounts necessary to indemnify the such Borrower Indemnified Parties for Party from and against any and all Borrower Indemnified Amounts relating to or resulting from:from any of the following (but excluding Borrower Indemnified Amounts and Taxes described in clause (b) above):
(i) any Loan treated as or represented by Pool Receivable which the Borrower to be or the Servicer includes as an Eligible Loan that Receivable as part of the Net Receivables Pool Balance but which is not at the applicable time an Eligible LoanReceivable at such time;
(ii) reliance on any representation representation, warranty or warranty statement made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their its respective officers officers) under or in connection with this Agreement, any of the other Transaction Documents, any Monthly Report, any Interim Report or any other information or report delivered by or on behalf of the Borrower pursuant hereto which shall have been false untrue or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, Pool Receivable or the nonconformity related Contract; or the failure of any Loan, Pool Receivable or the Related Property with related Contract to conform to any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in all or any portion of the Collateral, in each case free and clear of any Lien;
(v) the failure to filehave filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable and the other Collateral and Collections in respect thereof, whether at the time of any Advance Credit Extension or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset claim or defense (other than the discharge in bankruptcy of the Obligorbankruptcy) of the an Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Pool Receivable (including, without limitation, (A) a defense based on such Pool Receivable or the Loan related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) the equitable subordination of any other claim resulting from or relating to collection activities with respect to such Loan)Pool Receivable;
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform any of its duties or obligations in accordance with the provisions hereof and of this Agreement each other Transaction Document related to Pool Receivables or any failure by to timely and fully comply with the Originator, the Borrower or any Affiliate thereof Credit and Collection Policy in regard to perform its respective duties under the Transferred Loanseach Pool Receivable;
(viii) any products liability claim or personal injury or property damage suit liability, environmental or other similar or related claim or action of whatever sort arising out of or in connection with merchandise any Pool Receivable or other merchandise, goods or services that which are the subject of or related to any Transferred Loan or the Related PropertyPool Receivable;
(ix) the commingling of Collections of Pool Receivables at any time with other funds;
(x) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or the use of proceeds of any Credit Extensions or in respect of any Pool Receivable or other Collateral or any related Contract;
(xi) any failure of the Borrower to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(xii) any setoff with respect to any Pool Receivable;
(xiii) any claim brought by any Person other than a Borrower Indemnified Party arising from any activity by the Borrower or any Affiliate of the Borrower in servicing, administering or collecting any Pool Receivable;
(xiv) the failure by the Borrower to pay when due any Taxes for which the Borrower is liabletaxes, including including, without limitation, sales, excise or personal property taxes payable in connection with the Collateraltaxes;
(xxv) any repayment failure of a Collection Account Bank to comply with the terms of the applicable Account Control Agreement or any amounts (including in respect of an indemnity) payable by the Administrative AgentAgent to a Collection Account Bank under any Account Control Agreement;
(xvi) any dispute, any Managing Agent claim, offset or a Secured Party defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any amount previously distributed Pool Receivable (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in reduction of Advances Outstanding or payment of Interest accordance with its terms), or any other amount due hereunder or under any Hedging Agreement, claim in each case which amount resulting from the Administrative Agent, sale of goods or the rendering of services related to such Managing Agent Pool Receivable or a Secured Party believes in good faith is required the furnishing or failure to be repaidfurnish any such goods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(xixvii) any investigationaction taken by the Administrative Agent as attorney-in-fact for the Borrower, litigation any Originator or proceeding related the Servicer pursuant to this Agreement or any other Transaction Document;
(xviii) the use of proceeds of Advances any Credit Extension or in respect the usage of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower Letter of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, Credit; or
(xiiixix) the failure any reduction in Capital as a result of the Borrower, the Originator distribution of Collections if all or a portion of such distributions shall thereafter be rescinded or otherwise must be returned for any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsreason.
(b) Any amounts subject Notwithstanding anything to the contrary in this Agreement, solely for purposes of the Borrower’s indemnification provisions obligations in clauses (ii), (iii), (vii) and (xi) of this Section 9.1 Article XII, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be paid by the Borrower deemed to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand thereforbe not so qualified.
(c) If for any reason the foregoing indemnification provided above in this Section 9.1 is unavailable (other than pursuant to the exclusions contained in Section 12.01(a)) to any Borrower Indemnified Party or is insufficient to hold an Indemnified Party it harmless, then the Borrower, Borrower shall contribute to such Borrower Indemnified Party the amount paid or payable by such Borrower Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party economic interests of the Borrower and its Affiliates on the one hand and the Borrower, such Borrower Indemnified Party on the other hand but also in the matters contemplated by this Agreement as well as the relative fault of the Borrower and its Affiliates and such Borrower Indemnified Party as well as with respect to such loss, claim, damage or liability and any other relevant equitable considerations.
(d) . The reimbursement, indemnity and contribution obligations of the Borrower under this Section 9.1 shall be in addition to (but without duplication of) any liability which the Borrower may otherwise have, shall extend upon the same terms and conditions to each Borrower Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Borrower and the Borrower Indemnified Parties.
(d) Any indemnification or contribution under this Section shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Receivables Financing Agreement (Ingersoll Rand Inc.), Receivables Financing Agreement (Gardner Denver Holdings, Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any the Document Custodian, the Account Bank, the Secured Party or its assignee Parties, the Lenders and each of their respective Affiliates assigns and directors, officers, directors, employees, members agents and agents thereof advisors (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claimsclaims (whether brought by or involving the Borrower or any other third party), liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively referred to as the “Indemnified Amounts”) awarded against or incurred by, any by such Indemnified Party or and other non-monetary damages of any such Indemnified Party or any of them arising out of or as a result of (including any enforcement of) this AgreementAgreement or having an interest in the Collateral or in respect of any Loan included in the Collateral, excluding, however, any Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified PartyParty or in respect of Taxes (other than those described in clause (xii) of this Section 10.1(a) or in Section 2.12, Section 2.13, or Section 12.9). If the Borrower has made any indemnity payment pursuant to this Section 10.1 and Section 10.3 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts then, the recipient shall repay to the Borrower an amount equal to the amount it has collected from others in respect of such indemnified amounts. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts (except to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party) relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Investment Manager or any of their respective officers under or in connection with this AgreementAgreement or any other Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(ii) the failure of any Loan acquired on the Closing Date to be an Eligible Loan as of the Closing Date and the failure of any Loan acquired after the Closing Date to be an Eligible Loan on the related Funding Date;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) Investment Manager to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law Law, with respect to any Loan comprising a portion of the Collateral, Collateral or the nonconformity of any Loan, the Related Property Collateral with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security Agent, as agent for the Secured Parties, an undivided interest in the Collateral, together with all Collections, free and clear of any Lien whether existing at the time of any Advance or at any time thereafter;
(v) the failure to maintain, as of the close of business on each Business Day prior to the Termination Date, an amount of Advances Outstanding that is less than or equal to the Availability on such Business Day;
(vi) the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws Law with respect to any Collateral Collateral, whether at the time of any Advance or at any subsequent time and as required by the Transaction Documentstime;
(vivii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of with respect to any Transferred Loan that is, or is purported to be, an Eligible Loan Collateral (including, without limitation, (A) a defense based on the Loan Collateral not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) any other claim resulting from the equitable subordination sale of the merchandise or services related to such Loan)Collateral or the furnishing or failure to furnish such merchandise or services;
(viiviii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) any Loan Party to perform its duties or obligations in accordance with the provisions of this Agreement or any of the other Transaction Documents to which it is a party or any failure by the Originator, the Borrower any Loan Party or any Affiliate thereof to perform its respective duties under the Transferred Loansany Collateral;
(viiiix) any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Borrower or the Related Fund to qualify to do business or file any notice or business activity report or any similar report;
(x) any action taken by the Borrower or the Investment Manager in the enforcement or collection of any Collateral;
(xi) 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 merchandise the Underlying Assets or services that are the subject of any Transferred Loan or the Related PropertyCollateral;
(ixxii) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(xxiii) any repayment by the Administrative Agent, any Managing Agent or a another Secured Party of any amount previously distributed in reduction repayment of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case case, which amount the Administrative Agent, such Managing Agent or a another Secured Party believes in good faith is required to be repaid;
(xixiv) except with respect to funds held in the Collection Account, the commingling of Collections on the Collateral at any time with other funds;
(xv) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or the security interest in respect of any Transferred Loan or the Related PropertyCollateral;
(xiixvi) any failure by the Borrower to give reasonably equivalent value to the Originator Related Fund or to the applicable third party transferor, in consideration for the transfer by the Originator Related Fund or such third party to the Borrower of any Transferred Loan or the Related Property item of Collateral or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or;
(xiiixvii) the use of the proceeds of any Advance in a manner other than as provided in this Agreement, the Sale Agreement or any Third Party Sale Agreement;
(xviii) the failure of the Borrower, the Originator Related Fund or any of their respective agents or representatives to remit to the Servicer Investment Manager or the Administrative Agent, Collections on the Collateral remitted to the Borrower Borrower, the Related Fund, the Investment Manager or any such agent or representative as provided in accordance with this Agreement;
(xix) the terms hereof or the commingling failure by the Borrower or to comply with any Affiliate of the covenants relating to any collectionsHedging Agreement; or
(xx) the failure of the Investment Manager to satisfy its obligations under Section 10.2.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 10.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days on the Payment Date following the Administrative Agentsuch Person’s demand therefor, accompanied by a reasonably detailed description in writing of the related damage, loss, claim, liability and related costs and expenses.
(c) If for any reason the indemnification provided above in this Section 9.1 10.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Borrower shall be required to contribute in respect of any Indemnified Amounts excluded in Section 10.1(a).
(d) The obligations of the Borrower under this Section 9.1 10.1 shall survive the resignation or removal of the Administrative Agent Agent, the Investment Manager, the Collateral Custodian, the Document Custodian or any Managing Agent the Account Bank and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan, Security and Investment Management Agreement (Investcorp US Institutional Private Credit Fund), Loan, Security and Investment Management Agreement (Investcorp US Institutional Private Credit Fund)
Indemnities by the Borrower. (a) Without limiting any other rights that the Affected Parties or any such Person of their respective officers, directors, employees, attorneys, agents, representatives, transferees, successors or assigns (each, an “Indemnified Person”) may have hereunder or under Applicable Lawapplicable law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee and hold harmless each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, Person from and against any and all damagesIndemnified Amounts that may be claimed or asserted against or incurred by any such Indemnified Person in connection with or arising out of the transactions contemplated under this Agreement or under any other Related Document or any actions or failures to act in connection therewith, losses, claims, liabilities including any and related all legal costs and expenses, including reasonable attorneys’ fees and disbursements (all of ; provided that the foregoing being collectively referred Borrower shall not be liable for any indemnification to as “an Indemnified Amounts”) awarded against or incurred by, Person to the extent that any such Indemnified Party or other non-monetary damages of any Amount (x) results from such Indemnified Party any Person’s gross negligence, bad faith or willful misconduct, in each case as finally determined by a court of them arising out of competent jurisdiction, (y) constitutes recourse for uncollectible or uncollected Transferred Receivables as a result of this Agreementthe insolvency, excluding, however, Indemnified Amounts to bankruptcy or the extent resulting from gross negligence failure (without cause or willful misconduct justification) or inability on the part of the related Obligor to perform its obligations thereunder or (z) results from the compliance or non-compliance of the transactions contemplated by the Related Documents with the Securitisation Regulations, including for the avoidance of doubt any increased cost or any reduction in rate of return on capital that is required or directed to be maintained by an Indemnified PartyPerson in relation to its interest in or exposure in respect of any Receivables (including by application of an additional risk weight pursuant to Article 270a of Regulation (EU) No. 575/2013, as amended). Without limiting the generality of the foregoing, the Borrower shall indemnify the pay on demand to each Indemnified Parties for Person any and all Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Receivables Funding and Administration Agreement (Td Synnex Corp), Receivables Funding and Administration Agreement (Td Synnex Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that the Agent, the Lenders, any such Person of their respective Affiliates or members or any of their respective officers, directors, employees or advisors (each, an “Indemnified Party”) may have hereunder or under Applicable Lawapplicable law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured each Indemnified Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, losses and liabilities and related costs and expenses, (including reasonable attorneys’ fees and disbursements fees) (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result resulting from this Agreement or the other Transaction Documents or the use of this Agreementproceeds of the Loans, excluding, however, (a) Indemnified Amounts to the extent resulting found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from gross negligence or willful misconduct on the part of any such Indemnified Party, or (b) any income taxes or any other tax or fee measured by income incurred by such Indemnified Party arising out of or as a result of this Agreement or the making of Loans. Without limiting or being limited by the foregoing, the Borrower shall pay on demand to each Indemnified Party any and all amounts necessary to indemnify the such Indemnified Parties for Party from and against any and all Indemnified Amounts relating to or resulting fromfrom any of the following:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty or statement made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their respective officers its officers) under or in connection with this Agreement, Agreement or any of the other Transaction Documents which shall have been false or incorrect in any material respect when made made;
(ii) the failure by the Borrower to comply with any applicable law, rule or deemed made or deliveredregulation with respect to any Loan proceeds;
(iii) the failure by to vest in the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained Lenders a perfected security interest in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to filehave filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws applicable laws with respect to any Collateral the Borrower, whether at the time of any Advance the Borrowing or at any subsequent time and as required by the Transaction Documentstime;
(viv) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligora Buyer or an L/C Issuer) of the Obligor a Buyer or an L/C Issuer to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan)Collateral;
(viivi) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions hereof or to perform its duties or obligations under any other Basic Document; or
(vii) any failure of the Borrower to comply with its covenants contained in this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsTransaction Document.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Term Loan Agreement (Temple Inland Inc), Term Loan Agreement (Temple Inland Inc)
Indemnities by the Borrower. (a) Without limiting any other rights that the Program Agent, any such Person Administrative Agent or any Lender may have hereunder or under Applicable Lawapplicable law, the Borrower hereby agrees to indemnify (and pay upon demand to) the Administrative Program Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee each Administrative Agent and each of Lender and their respective Affiliates and Affiliates, successors, assigns, officers, directors, employeesagents and employees (each, members and agents thereof (collectively, the “an "Indemnified Parties”), forthwith on demand, Party") from and against any and all damages, losses, claims, liabilities taxes, liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Program Agent, such Administrative Agent or such Lender) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party by any of them arising out of or by reason of (i) the Borrower's or Servicer's (in its capacity as Servicer) failure to perform any of its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Facility Document, (ii) any representation or warranty made by the Borrower or Servicer (in its capacity as Servicer) (or any of their respective officers) under or in connection with this Agreement, any other Facility Document or any other written information or report delivered by the Borrower or Servicer pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made, (iii) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with any Motorcycle or other merchandise, insurance or services that are performed by the Servicer or any of its Affiliates and that are the subject of any Contract, (iv) any taxes (other than Excluded Taxes) that may at any time be asserted against any Indemnified Party as a result of or relating to the transactions contemplated herein and in the other Facility Documents, including any sales, gross receipts in respect of the Contracts, gross margin, general corporation, tangible personal property, Illinois personal property replacement privilege or license taxes and costs, expenses and reasonable counsel fees in defending against the same, whether arising by reason of the acts to be performed by the Borrower or the Servicer under this AgreementAgreement or imposed against the Program Agent, excludingany Administrative Agent or any Lender or otherwise, however(v) any Contract being determined to not constitute an Eligible Contract or Eligible Post-Sale Contract, as applicable, as of any Borrowing Date, Settlement Date, Take-Out Date or other date on which such Contract is then being included in the calculation of Outstanding Eligible Balance, (vi) any statement set forth in Sections 4.01(a), 4.01(e), 4.01(q), 4.02(a), 4.02(e), 4.02(l) or 4.02(o) (deleting for this purpose any exception or qualification otherwise contained therein referring to material adverse effect or any similar concept) not being true and accurate on the date the related representation and warranty is made, or (vii) the Borrower's failure to obtain licenses in the appropriate jurisdictions required for the Borrower to own, engage a servicer and pledge the Contracts hereunder or otherwise to comply with the law, including without limitation, Indemnified Amounts to the extent resulting from gross negligence or willful misconduct based on the part of any Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made failure by the Borrower, the Servicer (or one any Originator to comply with any applicable law, rule or regulation with respect to any Contract, or the nonconformity of any Contract with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its Affiliatesobligations, express or implied, with respect to any Contract;
(ii) any dispute, claim, offset or defense of the Obligor (other than discharge or stay in bankruptcy of the Obligor) to the payment of any Contract (including, without limitation, a defense based on such Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the Motorcycle or other merchandise or service provided by the Borrower or any of their respective officers under its Affiliates related to such Contract or in connection with this Agreement, which shall have been false the furnishing or incorrect in any material respect when made failure to furnish such merchandise or deemed made or deliveredservices;
(iii) the failure by the Borrower or the Servicer (or one commingling of its Affiliates) to comply Collections of Contracts with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateralother funds;
(iv) any investigation, litigation or proceeding related to or arising from this Agreement or any other Facility Document, the transactions contemplated hereby, the use of the proceeds of the Borrowing, the ownership of the Contracts or any other investigation, litigation or proceeding relating to the Borrower, the Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(v) any inability to litigate any claim against any Obligor in respect of any Contract as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty from any legal action, suit or proceeding;
(vi) an Insolvency Event has occurred with respect to HDI, HDFS, any Originator or the Borrower;
(vii) any failure of Borrower to acquire and maintain legal and equitable title to, and ownership of any Contract and the Related Security and Collections with respect thereto from HDCC, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Borrower to give reasonably equivalent value to HDCC under the Receivables Sale Agreement in consideration of the transfer by HDCC of any Contract, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(viii) any failure to vest and maintain vested in the Administrative Agent Program Agent, for the benefit of the Secured Parties, or to transfer to the Program Agent, for the benefit of the Secured Parties, a first priority perfected security interest in the Collateral, free and clear of any Adverse Claim (except as created pursuant to the terms of the Facility Documents);
(vix) the failure to filehave filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws applicable laws with respect to the Collateral, and the proceeds of any Collateral thereof in accordance with this Agreement, whether at the time of any Advance the Borrowing or at any subsequent time and as required by the Transaction Documentstime;
(vix) any dispute, claim, offset action or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of omission by the Borrower or the Servicer (if in its capacity as such) which reduces or impairs the Originator rights of the Program Agent or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement Secured Parties (or any failure by of their respective assigns) with respect to any Collateral or the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject value of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure attempt by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person of its Affiliates to void or otherwise avoid any such transfer the security interest in the Collateral granted hereunder under any statutory provision provisions or common law or equitable action, including, without limitation, any provision ;
(i) with respect to the Contracts set forth on the Contract Schedule as of the Bankruptcy CodeEffective Date, orthe failure of any such Contract to be an Eligible Contract on the Effective Date or (ii) with respect to the Contracts on any date included in the calculation of the Outstanding Eligible Balance, the failure of any such Contracts to be Eligible Contracts or Eligible Post-Sale Contracts, as applicable, on such date; and
(xiii) the failure of the Borrower, Servicer under the Originator or any of their respective agents or representatives Lockbox Agreement to remit any Collections to the Servicer Collection Account or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative otherwise in accordance with the terms hereof instruction of the Program Agent, whether by reason of the exercise of setoff rights or the commingling by the Borrower or any Affiliate of any collectionsotherwise.
(b) Any amounts subject Notwithstanding anything to the indemnification provisions of this contrary contained in Section 9.1 shall be paid by 8.01(a), the Borrower shall have no obligation to indemnify (and shall not indemnify) any Indemnified Party for:
(i) Indemnified Amounts to the applicable extent that such Indemnified Party within two (2) Business Days following Amounts resulted from gross negligence or willful misconduct on the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to part of the Indemnified Party or is insufficient to hold an seeking indemnification; or
(ii) Franchise taxes imposed upon any Indemnified Party harmless, then or taxes imposed by the Borrower, shall contribute to the amount paid federal government or payable by jurisdiction in which such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as Party's principal executive office is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrowerlocated, on or measured by the other hand but also the relative fault overall net income of such Indemnified Party as well as any other relevant equitable considerationsParty.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Harley Davidson Inc), Loan and Servicing Agreement (Harley Davidson Inc)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 “Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this Agreement, excluding, however, Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan included as part of the Collateral that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Credit Agreement (Gladstone Capital Corp), Credit Agreement (Gladstone Capital Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that which the Administrative Agent, each Agent, each Lender or its assignee, the Backup Servicer (including in its capacity as Successor Servicer), the Account Bank, the Collateral Custodian (if not DFC), the Servicer (if not DFC) or any such Person of their respective Affiliates may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agentseach Agent, each Secured Party, the Backup Servicer, any including if it is then acting as Successor Servicer, the Account Bank, the Collateral Custodian, any Secured Party or its assignee Custodian (if not DFC) and each of their respective Affiliates and officers, directors, employees, members employees and agents thereof (collectively, the “"Indemnified Parties”), forthwith on demand, ") from and against any and all reasonable and documented fees, damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys’ fees ' fees, court costs, and disbursements expenses (all of collectively, the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this Agreement, excluding, however, Indemnified Amounts to the extent resulting from the gross negligence negligence, bad faith, or willful misconduct on the part of any Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
: (i) any Loan treated as or Receivable represented by the Borrower to be an Eligible Loan that Receivable which is not at the applicable time an Eligible Loan;
Receivable; (ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Borrower or any of their its respective officers under or in connection with this AgreementAgreement or any other Basic Document, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
; (iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreementother Basic Document, or a failure by the Borrower to comply with any Applicable Law with respect to any Loan comprising a portion of Contract or Receivable, the Collateral, related Financed Vehicle or the nonconformity non-conformity of any Loan, the Related Property Contract with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
Law; (iv) the failure to vest and maintain vested in the Administrative Agent a valid and enforceable security interest in any or all of the 128 Collateral or a valid and enforceable first priority perfected security interest in any or all of the Collateral;
; (v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral the Collateral, whether at the time of any Advance a Loan or at any subsequent time and as required by the Transaction Basic Documents;
; (vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the related Obligor) of the an Obligor to the payment of any Transferred Loan that Receivable comprising a portion of the Collateral which is, or is purported to be, an Eligible Loan Receivable (including, without limitation, (A) including a defense based on the Loan Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms) or any other claim resulting from the sale or financing of the Financed Vehicle related to such Receivable (B) other than as a result of the equitable subordination bankruptcy or insolvency of such Loanthe related Obligor);
; (vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan Contract or the Related Property;
related Financed Vehicle; (ixviii) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
; (xix) any repayment or disgorgement by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances the Loans Outstanding or payment of Interest Interest, any other Obligation or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party entity believes in good faith is required to be repaid;
repaid or disgorged; (xix) any litigation, proceeding or investigation relating to arising from the Basic Documents, the transactions contemplated hereby and thereby, the use of proceeds of the Loans or any other investigation, litigation or proceeding related relating to this Agreement or the Borrower in which any Indemnified Party becomes involved as a result of any of the transactions contemplated by the Basic Documents; (xi) the use of the proceeds of Advances or in respect of any Transferred Loan or the Related Property;
Loan; (xii) any failure by the Borrower to give reasonably equivalent value to the Originator Seller in consideration for the transfer by the Originator Seller to the Borrower of any Transferred Loan or of the Related Property Receivables and the related Collateral or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, including any provision of the Bankruptcy Code, or
; (xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the Collections with other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.funds; 129
Appears in 2 contracts
Samples: Loan Agreement (Lithia Motors Inc), Loan Agreement (Lithia Motors Inc)
Indemnities by the Borrower. (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 that which the Affected Parties, the Secured Parties, the Administrative Agent, the Lenders, the Collateral Agent, the Account Bank, the Collateral Custodian or any such Person of their respective Affiliates may have hereunder or under Applicable Law, but without duplication of any amounts payable pursuant to Section 12.07, the Borrower hereby agrees to indemnify the Affected Parties, the Secured Parties, the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor ServicerLenders, the Collateral CustodianAgent, any Secured Party or its assignee the Account Bank, the Collateral Custodian and each of their respective Affiliates and Affiliates, assigns, officers, directors, employees, members employees and agents thereof (collectivelyeach, the an “Indemnified Parties”)Party” for purposes of this Article VIII) against, forthwith on demandand to hold each Indemnified Party harmless from, from and against any and all damages, losses, claims, liabilities and related costs and expenses (limited, solely in the case of amounts owing to the Administrative Agent in respect of attorney’s fees and expenses, including to the reasonable and documented attorneys’ fees and disbursements disbursements) (all of the foregoing being collectively referred to as “Indemnified Amounts”) ), awarded against or actually incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of of, in any way connected with, or as a result of this Agreement, excludingany of the other Transaction Documents or in respect of any of the Collateral or any claim, howeverlitigation, investigation or proceeding relating to any of the foregoing, including the enforcement of this Agreement or any other Transaction Document against the Borrower, regardless of whether any such Indemnified Party is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower or any of its Affiliates or shareholders); provided that Indemnified Amounts shall not be available to an Indemnified Party to the extent resulting that such damages, losses, claims, liabilities and related costs and expenses (i) are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted solely from the gross negligence negligence, bad faith or willful misconduct on the part of any such Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
Party and (ii) reliance on any representation or warranty made or deemed made by other than in the Borrowercase of the Collateral Agent, the Servicer (or one Account Bank and the Collateral Custodian, result from the uncollectibility of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof due to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor ’s financial inability to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionspay.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 8.01 shall be paid by the Borrower to the Administrative Agent (or, with respect to any amounts owing to the Collateral Agent, the Collateral Custodian or the Account Bank, to the Collateral Agent) on behalf of the applicable Indemnified Party within two (2) Business Days (if after giving effect to such payment, sufficient proceeds remain for all payments to be made pursuant to Section 2.04(a)(i)-(xii) and Section 2.04(b)(i)-(vii) on the next Payment Date) following the Administrative Agent’s (or the Collateral Agent’s, if applicable) written demand therefortherefor 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 8.01, shall submit to the Borrower a certificate setting forth 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 9.1 8.01 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmlessharmless in respect of any losses, claims, damages or liabilities, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such losslosses, claimclaims, damage damages or liability 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 Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) If the Borrower has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 8.01 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Borrower, without interest.
(e) The obligations of the Borrower under this Section 9.1 8.01 shall survive the resignation or removal of the Administrative Agent Agent, the Lenders, the Servicer, the Collateral Agent, the Account Bank or the Collateral Custodian, the invalidity or unenforceability of any term or provision of this Agreement or any Managing Agent other Transaction Document, any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender, the Servicer, the Account Bank or the Collateral Custodian and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (HPS Corporate Lending Fund), Loan and Servicing Agreement (HPS Corporate Lending Fund)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative AgentSecured Parties, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee Affected Parties and each of their respective Affiliates Affiliates, assigns and officers, directors, employees, members employees and agents thereof (collectively, the “"Indemnified Parties”"), forthwith on demand, 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 “the "Indemnified Amounts”") awarded against or incurred by, any by such Indemnified Party or and other non-monetary damages of any such Indemnified Party or any of them arising out of or as a result of this AgreementAgreement or having an interest in the Collateral or in respect of any Loan included in the Collateral, excluding, however, any Indemnified Amounts to the extent resulting solely from (x) gross negligence or willful misconduct on the part of any Indemnified PartyParty or (y) in respect of Taxes (other than any Taxes that represent damages, losses, claims, liabilities and related costs and expenses arising from any non-Tax claim and other than those described in clause (xiii) of this Section 11.1(a)). Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts (except to the extent resulting from the conditions set forth in clauses (x) or (y) above) relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that which is not at the applicable time an Eligible Loan, or the purchase by any party of any Loan which violates Applicable Law;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Collateral Manager or any of their respective officers under or in connection with this AgreementAgreement or any other Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) Collateral Manager to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law Law, with respect to any Loan comprising a portion of the Collateral, Collateral or the nonconformity of any Loan, the Related Property Collateral with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent Collateral Agent, for the benefit of the Secured Parties, a first priority perfected security interest in the Collateral, together with all Collections, free and clear of any Lien (other than Permitted Liens) whether existing at the time of any Advance at any time thereafter;
(v) the failure to maintain, as of the close of business on each Business Day prior to the earlier to occur of the Reinvestment Period End Date or the Termination Date, an amount of Advances Outstanding that is less than or equal to the Borrowing Base on such Business Day;
(vi) the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws Law with respect to any Collateral Collateral, whether at the time of any Advance or at any subsequent time and as required by the Transaction Documentstime;
(vivii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the an Obligor) of the an Obligor to the payment of with respect to any Transferred Loan that is, or is purported to be, an Eligible Loan Collateral (including, without limitation, (A) a defense based on any Loan (or the Loan Underlying Instruments evidencing such Loan) not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) any other claim resulting from the equitable subordination sale of the merchandise or services related to such Loan)Collateral or the furnishing or failure to furnish such merchandise or services;
(viiviii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) Collateral Manager to perform its duties or obligations in accordance with the provisions of this Agreement or any of the other Transaction Documents to which it is a party or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loansany Collateral;
(viiiix) any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Borrower to qualify to do business or file any notice or business activity report or any similar report;
(x) any action taken by the Borrower or the Collateral Manager in the enforcement or collection of any Collateral;
(xi) 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 merchandise the Related Property or services that are the subject of any Transferred Loan or the Related PropertyCollateral;
(ixxii) any claim, suit or action of any kind arising out of or in connection with Environmental Laws including any vicarious liability;
(xiii) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(xxiv) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreementhereunder, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xixv) except with respect to funds held in the Collection Account, the commingling of Collections on the Collateral at any time with other funds;
(xvi) any investigation, litigation or proceeding related to this Agreement or the other Transaction Documents or the use of proceeds of Advances or the security interest in respect of any Transferred Loan the Collateral or the Related Propertyadministration of the Loans by the Borrower or the Collateral Manager;
(xiixvii) any failure by the Borrower to give reasonably equivalent value value, at the direction of the Collateral Manager, to the Originator applicable third party transferor in consideration for the transfer by the Originator such transferor to the Borrower of any Transferred Loan or the Related Property item of Collateral, or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or;
(xiiixviii) the use of the proceeds of any Advance in a manner other than as provided in this Agreement and the Transaction Documents;
(xix) the failure of the Borrower, the Originator Collateral Manager or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collection Account within two (2) Business Days of receipt Collections on the Collateral remitted to the Borrower Borrower, the Collateral Manager or any such agent or representative representative, as provided in accordance with this Agreement; or
(xx) any shortfall in the terms hereof or the commingling amount of any payment (after conversion of such payment into Dollars by the Borrower Administrative Agent at the exchange rate) due under or in connection with this Agreement or any Affiliate Transaction Document as a result of any collectionssuch payment being made in a currency other than in Dollars.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 11.1 shall be paid by the Borrower to the Administrative Agent on behalf of the applicable Indemnified Party within two (2) Business Days on the next Payment Date and each succeeding Payment Date until paid in full following receipt by the Borrower of the Administrative Agent’s 's written demand therefortherefor 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 11.1, shall submit to the 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 9.1 11.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Borrower shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 11.1(a).
(d) If the Borrower has made any indemnity payments to the Administrative Agent, on behalf of an Indemnified Party, pursuant to this Section 11.1 and such payment fully indemnified such Indemnified Party and such Indemnified Party thereafter collects any payments from others in respect of such Indemnified Amounts, then such Indemnified Party will repay to the Borrower an amount equal to the amount it has collected from others in respect of such Indemnified Amounts.
(e) The obligations of the Borrower under this Section 9.1 11.1 shall survive the resignation or removal of the Administrative Agent, the Lenders, the Collateral Manager, the Collateral Agent or any Managing Agent the Collateral Custodian and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Franklin BSP Lending Corp), Loan and Servicing Agreement (Business Development Corp of America)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 “Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this Agreement, excluding, however, Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan included as part of the Collateral that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;.
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Credit Agreement (Gladstone Capital Corp), Credit Agreement (Gladstone Capital Corp)
Indemnities by the Borrower. (a) a. Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any the Securities Intermediary, the Secured Party or its assignee Parties, the Lenders and each of their respective Affiliates successors, assigns and directors, officers, directors, employees, members agents and agents thereof advisors (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claimsclaims (whether brought by or involving the Borrower or any other third party), liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively referred to as the “Indemnified Amounts”) awarded against or incurred by, any by such Indemnified Party or and other non-monetary damages of any such Indemnified Party or any of them arising out of or as a result of this AgreementAgreement (including enforcement of the indemnification obligations hereunder) or having an interest in the Collateral or in respect of any Loan included in the Collateral, excluding, however, any Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated Party as or represented determined by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one a court of its Affiliates) or any of their respective officers under or competent jurisdiction in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsfinal non-appealable judgment.
(b) b. Any amounts subject to the indemnification provisions of this Section 9.1 10.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days on the Payment Date following the Administrative Agentsuch Person’s demand therefor, accompanied by a reasonably detailed description in writing of the related damage, loss, claim, liability and related costs and expenses.
(c) c. If for any reason the indemnification provided above in this Section 9.1 10.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Borrower shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 10.1(a).
(d) d. The obligations of the Borrower under this Section 9.1 10.1 shall survive the resignation or removal of the Administrative Agent Agent, the Collateral Manager, the Collateral Custodian or any Managing Agent the Securities Intermediary and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan, Security and Collateral Management Agreement (AG Twin Brook Capital Income Fund), Loan, Security and Collateral Management Agreement (AGTB Private BDC)
Indemnities by the Borrower. (a) Without limiting any other rights that which the Affected Parties, the Secured Parties, the Administrative Agent, the Lenders, the Lender Agents, the Collateral Agent, the Account Bank, the Collateral Administrator, the Backup Servicer, the Collateral Custodian or any such Person of their respective Affiliates may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Affected Parties, the Secured Parties, Administrative Agent, the Managing Lenders, the Lender Agents, the Collateral Agent, the Backup Servicer, any Successor the Account Bank, the Backup Servicer, the Collateral Administrator, the Collateral Custodian, any Secured Party or its assignee Conduit Trustee and each of their respective Affiliates and Affiliates, assigns, officers, directors, employees, members employees and agents thereof (collectivelyeach, the an “Indemnified Parties”), forthwith on demand, Party” for purposes of this Article IX) from and against any and all damages, losses, claims, liabilities and related reasonable and documented out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements of one firm of counsel to the Administrative Agent and the Lenders and, if necessary, one firm of local counsel in each appropriate jurisdiction (all of the foregoing being collectively referred to as “Indemnified Amounts”) ), awarded against or actually incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this AgreementAgreement or in respect of any of the Collateral Portfolio, excluding, however, Indemnified Amounts to the extent resulting solely from (a) gross negligence negligence, bad faith or willful misconduct on the part of any an Indemnified PartyParty as determined in a final decision by a court of competent jurisdiction or (b) Loan Assets which are uncollectible due to the Obligor’s financial inability to pay. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts relating to or resulting from:from any of the following (to the extent not resulting from the conditions set forth in (a) or (b) above):
(i) any Loan Asset treated as or represented by the Borrower to be an Eligible Loan that Asset which is not at the applicable time an Eligible LoanLoan Asset, or the purchase by any party or origination of any Loan Asset which violates Applicable Law;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (if CGMS or one of its AffiliatesAffiliates is the Servicer) or any of their respective officers under or in connection with this AgreementAgreement or any Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (if CGMS or one of its AffiliatesAffiliates is the Servicer) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion item of the CollateralCollateral Portfolio, or the nonconformity of any Loan, the Related Property item of Collateral Portfolio with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent Collateral Agent, for the benefit of the Secured Parties, a first priority perfected security interest in the CollateralCollateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or at any time thereafter;
(v) the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws Law with respect to any Loan Assets included in the Collateral Portfolio or the other Portfolio Assets related thereto, whether at the time of any Advance or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the an Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Asset included in the Collateral Portfolio (including, without limitation, (A) a defense based on such Loan Asset (or the Loan Agreement evidencing such Loan Asset) not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) any other claim resulting from the equitable subordination sale of the merchandise or services related to such Loan)Collateral Portfolio or the furnishing or failure to furnish such merchandise or services;
(vii) any failure of the Borrower or the Servicer (if the Originator CGMS or one of its AffiliatesAffiliates is the Servicer) to perform its duties or obligations in accordance with the provisions of this Agreement the Transaction Documents to which it is a party or any failure by the OriginatorCGMS, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loansany Collateral Portfolio;
(viii) any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Borrower or the Transferor to qualify to do business or file any notice or business activity report or any similar report;
(ix) any action taken by the Borrower or the Servicer in the enforcement or collection of the Collateral Portfolio which results in any claim, suit or action of any kind pertaining to the Collateral Portfolio or which reduces or impairs the rights of the Administrative Agent, Lender Agent or Lender with respect to any Loan Asset or the value of any such Loan Asset;
(x) 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 merchandise the Underlying Collateral or services that are the subject of any Transferred Loan or the Related PropertyCollateral Portfolio;
(ixxi) any claim, suit or action of any kind arising out of or in connection with Environmental Laws relating to the Borrower or the Collateral Portfolio, including any vicarious liability;
(xii) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including including, without limitation, sales, excise or personal property taxes Taxes payable in connection with the CollateralCollateral Portfolio;
(xxiii) any repayment by the Administrative Agent, any Managing Agent the Lender Agents, the Lenders or a Secured Party of any amount previously distributed in reduction payment of Advances Outstanding or payment of Interest Yield or Fees or any other amount due hereunder or under any Hedging Agreementhereunder, in each case which amount the Administrative Agent, such Managing Agent the Lender Agents, the Lenders or a Secured Party believes in good faith is required to be repaid;
(xixiv) the commingling by the Borrower or the Servicer of Collections required to be remitted to the Collection Account with other funds;
(xv) any investigation, litigation or proceeding related to this Agreement (or the Transaction Documents), or the use of proceeds of Advances or in respect of any Transferred Loan the Collateral Portfolio, or the Related Propertyadministration of the Loan Assets by the Borrower or the Servicer (unless such administration is carried out by the Backup Servicer in the capacity of the Servicer, if applicable);
(xiixvi) any failure by the Borrower to give reasonably equivalent value to the Originator Transferor in consideration for the transfer by the Originator Transferor to the Borrower of any Transferred Loan or the Related Property item of Collateral Portfolio or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, ;
(xvii) the use of the proceeds of any Advance in a manner other than as provided in this Agreement and the Transaction Documents; or
(xiiixviii) the any failure of the Borrower, the Originator Servicer or any of their respective agents or representatives to remit to the Servicer or the Administrative AgentCollection Account within two Business Days of receipt, Collections on with respect to the Collateral Portfolio remitted to the Borrower Borrower, the Servicer or any such agent or representative (other than such a failure on the part of the Backup Servicer in accordance with the terms hereof or the commingling by the Borrower or any Affiliate capacity of any collectionsServicer, if applicable).
(b) Any amounts subject to the indemnification provisions of this Section 9.1 9.01 shall be paid by the Borrower to the Administrative Agent on behalf of the applicable Indemnified Party within two (2) five Business Days following receipt by the Borrower of the Administrative Agent’s written demand therefortherefor 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 9.01, shall submit to the 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 9.1 9.01 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmlessharmless in respect of any losses, claims, damages or liabilities, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such losslosses, claimclaims, damage damages or liability 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 Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Borrower shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 9.01(a).
(d) If the Borrower has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 9.01 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Borrower in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The obligations of the Borrower under this Section 9.1 9.01 shall survive the resignation or removal of the Administrative Agent Agent, the Lenders, the Lender Agents, the Servicer, the Collateral Agent, the Account Bank, the Backup Servicer, the Collateral Administrator or any Managing Agent the Collateral Custodian and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (TCG Bdc, Inc.), Loan and Servicing Agreement (Carlyle GMS Finance, Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Deal Agent, the Managing Agents, the Backup Servicer, any the Collateral Agent, the Successor Servicer, the Collateral CustodianSecured Parties, any Secured Party or its assignee and each of their respective Affiliates and officers, directors, employees, members employees and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, expenses (including reasonable and documented attorneys’ fees and disbursements and court costs) including those incurred in connection with any enforcement (including any action, claim or suit brought) by an Indemnified Party of any indemnification or other obligation of the Borrower or any other Person (all of the foregoing being collectively referred to as the “Indemnified Amounts”) awarded against or incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party Party, any of them arising out of or as a result of this AgreementAgreement or the financing or maintenance of the Capital or in respect of any Loan or any Contract, excluding, however, (a) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of any such Indemnified Party, as determined by a court of competent jurisdiction, or (b) Indemnified Amounts that have the effect of recourse for non-payment of the Loans due to credit problems of the Obligors (except as otherwise specifically provided in this Agreement). The indemnification provided for in this Section shall be paid to the Indemnified Parties until such time as such court enters a judgment as to the extent and effect of the alleged gross negligence or willful misconduct, at which time the Indemnified Parties, as applicable, shall, to the extent required pursuant to such court’s determination, promptly return to the Borrower any such indemnification amounts so received but not owed as determined by such court. If the Borrower has made any indemnity payment pursuant to this Section 11.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts then, the recipient shall repay to the Borrower an amount equal to the amount it has collected from others in respect of such Indemnified Amounts. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts relating to or resulting from:
(i) any Contract or Loan treated as or represented by the Borrower Credit Acceptance to be an Eligible Dealer Loan Contract or Eligible Loan that is not at the applicable time an Eligible Dealer Loan Contract or Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Borrower or any of their respective its officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law Law, with respect to any Loan comprising a portion of the CollateralLoan, Dealer Agreement, Purchase Agreement, any Contract, or the nonconformity of any Loan, the Related Property Dealer Agreement, Purchase Agreement or Contract with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Collateral Agent for the Secured Parties a first priority perfected security interest in the Collateral, together with all Collections, free and clear of any Lien whether existing at the time of any pledge of Loans or at any time thereafter;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral the Collateral, whether at the time of any Advance pledge of Loans or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Contract (including, without limitation, (A) a defense based on the such Loan or Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(xix) any repayment by the Administrative Deal Agent, any Managing Agent Lender or a Secured Party of any amount previously distributed in reduction of Advances Outstanding Capital or payment of Interest Yield or any other amount due hereunder or under any Hedging Agreementhereunder, in each case which amount the Administrative Agent, such Managing Deal Agent or a Secured Party believes in good faith is required to be repaid;
(x) the commingling of Collections of the Collateral at any time with other funds;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances the loan to the Borrower or the funding of or maintenance of Capital or in respect of any Transferred Loan or the Related PropertyContract;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of the Loans, Related Security or any Transferred Loan or the Related Property portion thereof or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or;
(xiii) the use of the Proceeds of the loan to the Borrower in a manner other than as provided in this Agreement and the Contribution Agreement; or
(xiv) the failure of the Borrower, the Originator Borrower or any of their respective its agents or representatives to remit to the Servicer or Servicer, the Administrative Deal Agent, the Collateral Agent or any other Secured Party, any Collections on of the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsrepresentative.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 11.1 shall be paid by the Borrower to the applicable relevant Indemnified Party within two (2) Business Days following on the Administrative Agent’s demand therefornext Payment Date pursuant to Section 2.7(a).
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 11.1 shall survive the resignation or removal of the Administrative Agent Deal Agent, the Collateral Agent, the Successor Servicer, any Lender or any Managing Agent and the Backup Servicer or the termination or assignment of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan and Security Agreement and Backup Servicing Agreement (Credit Acceptance Corp), Loan and Security Agreement (Credit Acceptance Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that which any such Person Affected Party may have hereunder or under Applicable Lawapplicable law (including, without limitation, the right to recover damages for breach of contract), the Borrower hereby agrees to indemnify each Lender, the Administrative Program Agent, each Managing Agent, the Managing AgentsServicer (if not an Affiliate of the Borrower), the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee Paying Agent and each of Liquidity Provider, and their respective Affiliates and officers, directors, employees, members officers and agents thereof employees (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable external attorneys’ fees and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) ), awarded against or incurred by, any by such Indemnified Party to the extent relating to or other non-monetary damages of any such Indemnified Party any of them arising out of from or as a result of this Agreement, excluding, however, Indemnified Amounts Agreement or the funding or maintenance of Loans made by a Lender hereunder subject to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Partyproviso set forth below. Without limiting the foregoinggenerality of the foregoing indemnification, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts to the extent relating to or resulting fromfrom any of the following:
(i) the failure of any Loan treated as or Pledged Contract represented by the Borrower to be an Eligible Loan that is not Contract hereunder to be an “Eligible Contract” at the applicable time an Eligible Loanof such representation;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Borrower under this Agreement or any of their respective officers under or in connection with this Agreement, other Facility Document to which it is a party which shall have been false or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement, the Purchase Agreement or any agreement executed in connection with this Agreement, other Facility Document to which it is party or with any Applicable Law applicable law, rule or regulation with respect to any Loan comprising a portion of the Pledged Contract or other Collateral, or the nonconformity of any Loan, the Related Property Pledged Contract or other Collateral with any such Applicable Law applicable law, rule or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateralregulation;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise any Financed Vehicle or services that other goods or services, the sale or provision of which gave rise to or are the subject of any Transferred Loan or the Related PropertyPledged Contract;
(ixv) the failure by Borrower to pay when due any Taxes for which the Borrower is liableTaxes, including including, without limitation, sales, excise or personal property taxes Taxes payable by the Borrower in connection with the Collateral;
(xvi) the payment by such Indemnified Party of Indemnified Taxes, including, without limitation, any Indemnified 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 Borrower’s actions or failure to act in breach of this Agreement;
(vii) the failure to vest and maintain vested in the Program Agent, on behalf of the Secured Parties, a first priority perfected security interest in the Collateral, free and clear of any Lien except a Lien in favor of the Program Agent, whether existing at the time such Collateral arose or at any time thereafter;
(viii) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the applicable UCC or other applicable laws naming the Borrower as “Debtor” with respect to any Collateral;
(ix) any repayment by dispute, claim, offset or defense (other than as a result of the Administrative Agent, any Managing Agent bankruptcy or insolvency of the related Contract Debtor) of a Secured Party Contract Debtor to the payment of any amount previously distributed Pledged Contract (including, without limitation, a defense based on such Pledged Contract not being a legal, valid and binding obligation of such Contract Debtor enforceable against it in reduction of Advances Outstanding or payment of Interest accordance with its terms), or any other amount due hereunder claim resulting from the sale or under financing of the Financed Vehicle related to such Pledged Contract (other than as a result of the bankruptcy or insolvency of the related Contract Debtor);
(x) the commingling of Collections with any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaidother funds;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property Pledged Contract, or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of or the Bankruptcy Code;
(xii) the failure of any Depository Account Bank to remit any amounts or items of payment held in a Depository Account or in a Lock-Box pursuant to the instructions of the Program Agent given in accordance with this Agreement, orthe Master Agency Agreement or the other Facility Documents, whether by reason of the exercise of setoff rights or otherwise;
(xiii) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Loans made pursuant to this Agreement or any other Facility Document delivered hereunder or in respect of any of the Collateral;
(xiv) any claim brought by any Person arising from any activity by the Borrower in servicing, administering or collecting any Pledged Contract; or
(xv) the grant by the Borrower of a security interest in any Pledged Contract in violation of any applicable law, rule or regulation; provided, however, that the Borrower shall not be required to indemnify any Indemnified Party to the extent of any amounts (x) resulting from the gross negligence or willful misconduct of such Indemnified Party, or (y) constituting credit recourse for the failure of the Borrowera Contract Debtor to pay a Pledged Contract, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(bz) constituting Excluded Taxes. Any amounts subject to the indemnification provisions of this Section 9.1 8.01 shall be paid by the Borrower to the applicable related Indemnified Party within two (2) 10 Business Days following the Administrative Agent’s written demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (DT Acceptance Corp), Loan and Servicing Agreement (DT Acceptance Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Deal Agent, the Managing Agents, the Backup Servicer, any the Collateral Agent, the Successor Servicer, the Collateral CustodianSecured Parties, any Secured Party or its assignee and each of their respective Affiliates and officers, directors, employees, members employees and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, expenses (including reasonable and documented attorneys’ ' fees and disbursements and court costs) including those incurred in connection with any enforcement (including any action, claim or suit brought) by an Indemnified Party of any indemnification or other obligation of the Borrower or any other Person (all of the foregoing being collectively referred to as the “Indemnified Amounts”) awarded against or incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party Party, any of them arising out of or as a result of this AgreementAgreement or the financing or maintenance of the Capital or in respect of any Loan or any Contract, excluding, however, (a) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of any such Indemnified Party, as determined by a court of competent jurisdiction, or (b) Indemnified Amounts that have the effect of recourse for non-payment of the Loans due to credit problems of the Obligors (except as otherwise specifically provided in this Agreement). The indemnification provided for in this Section shall be paid to the Indemnified Parties until such time as such court enters a judgment as to the extent and effect of the alleged gross negligence or willful misconduct, at which time the Indemnified Parties, as applicable, shall, to the extent required pursuant to such court's determination, promptly return to the Borrower any such indemnification amounts so received but not owed as determined by such court. If the Borrower has made any indemnity payment pursuant to this Section 11.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts then, the recipient shall repay to the Borrower an amount equal to the amount it has collected from others in respect of such Indemnified Amounts. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts relating to or resulting from:
(i) any Contract or Loan treated as or represented by the Borrower Credit Acceptance to be an Eligible Dealer Loan Contract or Eligible Loan that is not at the applicable time an Eligible Dealer Loan Contract or Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) Borrower or any of their respective its officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law Law, with respect to any Loan comprising a portion of the CollateralLoan, Dealer Agreement, Purchase Agreement, any Contract, or the nonconformity of any Loan, the Related Property Dealer Agreement, Purchase Agreement or Contract with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Collateral Agent for the Secured Parties a first priority perfected security interest in the Collateral, together with all Collections, free and clear of any Lien whether existing at the time of any pledge of Loans or at any time thereafter;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral the Collateral, whether at the time of any Advance pledge of Loans or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Contract (including, without limitation, (A) a defense based on the such Loan or Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(xix) any repayment by the Administrative Deal Agent, any Managing Agent Lender or a Secured Party of any amount previously distributed in reduction of Advances Outstanding Capital or payment of Interest or Yield or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Deal Agent or a Secured Party believes in good faith is required to be repaid;
(x) the commingling of Collections of the Collateral at any time with other funds;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances the loan to the Borrower or the funding of or maintenance of Capital or in respect of any Transferred Loan or the Related PropertyContract;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of the Loans, Related Security or any Transferred Loan or the Related Property portion thereof or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or;
(xiii) the use of the Proceeds of the loan to the Borrower in a manner other than as provided in this Agreement and the Contribution Agreement; or
(xiv) the failure of the Borrower, the Originator Borrower or any of their respective its agents or representatives to remit to the Servicer or Servicer, the Administrative Deal Agent, the Collateral Agent or any other Secured Party, any Collections on of the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsrepresentative.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 11.1 shall be paid by the Borrower to the applicable relevant Indemnified Party within two (2) Business Days following on the Administrative Agent’s demand therefornext Payment Date pursuant to Section 2.7(a).
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 11.1 shall survive the resignation or removal of the Administrative Agent Deal Agent, the Collateral Agent, the Successor Servicer, any Lender or any Managing Agent and the Backup Servicer or the termination or assignment of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan and Security Agreement (Credit Acceptance Corp), Loan and Security Agreement (Credit Acceptance Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing AgentsCollateral Agent, the Backup Servicer, any Successor ServicerSecured Parties, the Collateral Custodian, any Secured Party or its assignee Lenders and each of their respective Affiliates assigns and officers, directors, employees, members employees and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 the “Indemnified Amounts”) awarded against, incurred by or asserted by the Borrower or any third party against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this AgreementAgreement or having an interest in the Collateral or in respect of any Loan included in the Collateral, excluding, however, any Indemnified Amounts to the extent resulting solely from gross negligence or willful misconduct on the part of any Indemnified PartyParty as determined in a final non-appealable decision by a court of competent jurisdiction. If the Borrower has made any indemnity payment pursuant to this Section 10.1 and Section 10.3 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts then, the recipient shall repay to the Borrower an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts (except to the extent resulting solely from gross negligence or willful misconduct on the part of any Indemnified Party or arising on account of Tax (except as provided in Section 10.1(a)(xiii) or if such Tax is suffered on account of a non-Tax claim) relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer Collateral Manager (or one on behalf of its Affiliatesthe Borrower) or any of their respective officers under or in connection with this AgreementAgreement or any other Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(ii) the failure of any Loan acquired on the Closing Date to be an Eligible Loan as of the Closing Date and the failure of any Loan acquired after the Closing Date to be an Eligible Loan on the related Cut-Off Date or the purchase by any party of any Loan which violates Applicable Law;
(iii) the failure by the Borrower or the Servicer Collateral Manager (or one on behalf of its Affiliatesthe Borrower) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law Law, with respect to any Loan comprising a portion of the Collateral, Collateral or the nonconformity of any Loan, the Related Property Collateral with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent Collateral Agent, for the benefit of the Secured Parties, a first priority priority, perfected security interest in the Collateral, together with all Collections, free and clear of any Lien (other than Permitted Liens) whether existing at the time of any Advance at any time thereafter;
(v) the failure to maintain, as of the close of business on each Business Day prior to the Termination Date, an amount of Advances Outstanding that is less than or equal to the Borrowing Base on such Business Day;
(vi) the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws Law with respect to any Collateral Collateral, whether at the time of any Advance or at any subsequent time and as required by the Transaction Documentstime;
(vivii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of with respect to any Transferred Loan that is, or is purported to be, an Eligible Loan Collateral (including, without limitation, (A) a defense based on the Loan Collateral not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms) or (B) any other claim resulting from the equitable subordination sale of the merchandise or services related to such Loan)Collateral or the furnishing or failure to furnish such merchandise or services;
(viiviii) any failure of the Borrower or the Servicer Collateral Manager (if on behalf of the Originator or one of its AffiliatesBorrower) to perform its duties or obligations in accordance with the provisions of this Agreement or any of the other Transaction Documents to which it is a party or any failure by the Originator, the Borrower or any Affiliate thereof the Collateral Manager (on behalf of the Borrower) to perform its respective duties under the Transferred Loansany Collateral;
(viiiix) any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Borrower to qualify to do business or file any notice or business activity report or any similar report;
(x) any action taken by the Borrower or the Collateral Manager (on behalf of the Borrower) in the enforcement or collection of any Collateral;
(xi) 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 merchandise the Underlying Assets or services that are the subject of any Transferred Loan or the Related PropertyCollateral;
(ixxii) any claim, suit or action of any kind arising out of or in connection with Environmental Laws relating to the Borrower or the Collateral, including any vicarious liability;
(xiii) the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(xxiv) any repayment by the Administrative Agent, any Managing Agent or a another Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a another Secured Party believes in good faith is required to be repaid;
(xixv) except with respect to funds held in the Collection Account, the commingling of Collections on the Collateral at any time with other funds;
(xvi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or the security interest in respect of any Transferred Loan or the Related PropertyCollateral;
(xiixvii) any failure by the Borrower to give reasonably equivalent value to the Originator Seller, in consideration for the transfer by the Originator Seller to the Borrower of any Transferred Loan or the Related Property item of Collateral or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, ;
(xviii) the use of the proceeds of any Advance in a manner other than as provided in this Agreement and the Sale Agreement; or
(xiiixix) the failure of the Borrower, the Originator Borrower or any of their respective its agents or representatives to remit to the Servicer Collateral Manager (on behalf of the Borrower) or the Administrative Collateral Agent, Collections on the Collateral remitted to the Borrower Borrower, the Collateral Manager (on behalf of the Borrower) or any such agent or representative as provided in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsthis Agreement.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 10.1 shall be paid by the Borrower to the applicable Indemnified Party within two pursuant to Section 2.7 or 2.8(a), as applicable, on the Payment Date following such Person’s demand therefor (2if given at least five (5) Business Days following prior to such Payment Date, and, if not, on the Administrative Agent’s demand therefornext subsequent Payment Date), accompanied by a reasonably detailed description in writing of the related damage, loss, claim, liability and related costs and expenses with respect to which such indemnification is requested, which description shall be conclusive absent demonstrable error.
(c) If for any reason the indemnification provided above in this Section 9.1 10.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Borrower shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 10.1(a).
(d) The obligations of the Borrower under this Section 9.1 10.1 shall survive the resignation of the Administrative Agent, the resignation or removal of the Administrative Agent Collateral Manager or any Managing the Collateral Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan and Security Agreement (Oaktree Specialty Lending Corp), Loan and Security Agreement (Fifth Street Senior Floating Rate Corp.)
Indemnities by the Borrower. (a) Without limiting any other rights that which the Secured Parties or any such Person of their respective Affiliates may have hereunder or under Applicable Law, the Borrower hereby agrees to shall indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee Parties and each of their respective Affiliates and Affiliates, assigns, officers, directors, employees, members employees and agents thereof (collectivelyeach, the an “Indemnified Parties”), forthwith on demand, Party” for purposes of this Article VIII) 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 “Indemnified Amounts”) awarded against ), incurred by or incurred by, any asserted such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of (i) this AgreementAgreement or the other Transaction Documents or in respect of any of the Collateral, (ii) any Advance Credit or the use or proposed use of the proceeds therefrom or (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether any Indemnified Party is a party thereto, excluding, however, Indemnified Amounts to the extent resulting solely from gross negligence negligence, bad faith or willful misconduct on the part of any an Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated Party as or represented determined in a final decision by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one a court of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionscompetent jurisdiction.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 8.01 shall be paid by the Borrower to the Administrative Agent on behalf of the applicable Indemnified Party within two (2) Business Days thirty days following receipt by the Borrower of the Administrative Agent’s written demand therefortherefor 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 8.01, shall submit to the 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 9.1 8.01 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmlessharmless in respect of any losses, claims, damages or liabilities, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such losslosses, claimclaims, damage damages or liability 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 Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) If the Borrower has made any payments in respect of Indemnified Amounts to the Administrative Agent on behalf of an Indemnified Party pursuant to this Section 8.01 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Borrower in an amount equal to the amount it has collected from others in respect of such Indemnified Amounts, without interest.
(e) The obligations of the Borrower under this Section 9.1 8.01 shall survive the resignation or removal of the Administrative Agent Agent, the Servicer, the Account Bank or any Managing Agent and the Collateral Custodian or the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (KKR Real Estate Finance Trust Inc.), Loan and Servicing Agreement (KKR Real Estate Finance Trust Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any the Secured Party or its assignee Parties, the Affected Parties and each of their respective Affiliates assigns and officers, directors, employees, members employees and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 the “Indemnified Amounts”) awarded against or incurred by, any by such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this AgreementAgreement or having an interest in the Collateral or in respect of any Loan included in the Collateral, excluding, however, any Indemnified Amounts to the extent resulting from gross negligence negligence, bad faith or willful misconduct on the part of any Indemnified Party. If the Borrower has made any indemnity payment pursuant to this Section 10.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts then, the recipient shall repay to the Borrower an amount equal to the amount it has collected from others in respect of such indemnified amounts. Without limiting the foregoing, the Borrower shall indemnify the each Indemnified Parties Party for Indemnified Amounts (except to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party as determined by a court of competent jurisdiction by final non-appealable judgment) relating to or resulting from:
(i) any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Loan and Security Agreement (NMF SLF I, Inc.), Loan and Security Agreement (New Mountain Guardian III BDC, L.L.C.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person the Administrative Agent, the Credit Parties, the Affected Persons and their respective assigns, officers, directors, agents and employees (each, a “Borrower Indemnified Party”) may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured each Borrower Indemnified Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all claims, expenses, damages, losses, claims, losses and liabilities and related costs and expenses, suffered or sustained (including reasonable attorneys’ fees and disbursements Attorney Costs) (all of the foregoing being collectively referred to as “Borrower Indemnified Amounts”) awarded against arising out of, relating to or incurred by, in connection this Agreement or any such Indemnified Party other Transaction Document or other non-monetary damages the use of proceeds of the Credit Extensions or the security interest in respect of any such Indemnified Party Pool Receivable or any of them arising out of or as a result of this Agreement, other Collateral; excluding, however, (x) Borrower Indemnified Amounts to the extent resulting a final non-appealable judgment of a court of competent jurisdiction holds that such Borrower Indemnified Amounts resulted solely from the gross negligence or negligence, bad faith, willful misconduct on by the part Borrower Indemnified Party seeking indemnification, (y) Borrower Indemnified Amounts to the extent a final non-appealable judgment of any a court of competent jurisdiction holds that such Borrower Indemnified PartyAmounts resulted solely from a material breach of a Transaction Document by the Borrower Indemnified Party seeking indemnification and (z) Taxes that are covered by Section 4.03. Without limiting or being limited by the foregoing, the Borrower shall pay on demand (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 3.01), to each Borrower Indemnified Party any and all amounts necessary to indemnify the such Borrower Indemnified Parties for Party from and against any and all Borrower Indemnified Amounts relating to or resulting from:from any of the following (but excluding Borrower Indemnified Amounts and Taxes described in clauses (x), (y) and (z) above):
(i) any Loan treated as or represented by Pool Receivable which the Borrower to be or the Servicer includes as an Eligible Loan that Receivable as part of the Net Receivables Pool Balance but which is not at the applicable time an Eligible LoanReceivable at such time;
(ii) reliance on any representation representation, warranty or warranty statement made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their its respective officers officers) under or in connection with this Agreement, any of the other Transaction Documents, any Information Package, Interim Report or any other information or report delivered by or on behalf of the Borrower pursuant hereto which shall have been false untrue or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, Pool Receivable or the nonconformity related Contract; or the failure of any Loan, Pool Receivable or the Related Property with related Contract to conform to any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in all or any portion of the Collateral, in each case free and clear of any Adverse Claim;
(v) the failure to filehave filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable and the other Collateral and Collections in respect thereof, whether at the time of any Advance Credit Extension or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset claim or defense (other than the discharge in bankruptcy bankruptcy), of the Obligor) of the an Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Pool Receivable (including, without limitation, (A) a defense based on such Pool Receivable or the Loan related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) the equitable subordination of any other claim resulting from or relating to collection activities with respect to such Loan)Pool Receivable;
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform any of its duties or obligations in accordance with the provisions hereof and of this Agreement each other Transaction Document related to Pool Receivables or any failure by to timely and fully comply with the Originator, the Borrower or any Affiliate thereof Credit and Collection Procedures in regard to perform its respective duties under the Transferred Loanseach Pool Receivable;
(viii) any products liability claim or personal injury or property damage suit liability, environmental or other similar or related claim or action of whatever sort arising out of or in connection with merchandise any Pool Receivable or other merchandise, goods or services that which are the subject of or related to any Transferred Loan or the Related PropertyPool Receivable;
(ix) the commingling of Collections of Pool Receivables at any time with other funds;
(x) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or the use of proceeds of any Credit Extensions or in respect of any Pool Receivable or other Collateral or any related Contract;
(xi) any failure of the Borrower to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(xii) any offset, setoff, adjustment, or other non-cash reduction of any Pool Receivable (including Deemed Collections) not arising from the bankruptcy or insolvency, lack of creditworthiness or other financial default or inability to pay of the related Obligor any undisputed indebtedness;
(xiii) any claim brought by any Person other than a Borrower Indemnified Party arising from any activity by the Borrower or any Affiliate of the Borrower in servicing, administering or collecting any Pool Receivable;
(xiv) the failure by the Borrower to pay when due any Taxes for which the Borrower is liabletaxes, including including, without limitation, sales, excise or personal property taxes payable in connection with the Collateraltaxes;
(xxv) any repayment failure of a Collection Account Bank to comply with the terms of the applicable Account Control Agreement, the termination by a Collection Account Bank prior to the appointment of a successor collection account bank or any amounts payable by the Administrative AgentAgent to a Collection Account Bank under any Account Control Agreement;
(xvi) any dispute, any Managing Agent claim, offset or a Secured Party defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any amount previously distributed Pool Receivable (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in reduction of Advances Outstanding or payment of Interest accordance with its terms), or any other amount due hereunder claim resulting from the sale of goods or under the rendering of services related to such Pool Receivable or the furnishing or failure to furnish any Hedging Agreement, in each case which amount such goods or services or other similar claim or defense not arising from the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required financial inability of any Obligor to be repaidpay undisputed indebtedness;
(xixvii) any investigationaction taken by the Administrative Agent as attorney-in-fact for the Borrower, litigation any Originator or proceeding related the Servicer pursuant to this Agreement or any other Transaction Document;
(xviii) the use of proceeds of Advances or in respect of any Transferred Loan or the Related PropertyCredit Extension;
(xiixix) any reduction in Capital as a result of the distribution of Collections if all or a portion of such distributions shall thereafter be rescinded or otherwise must be returned for any reason; or
(xx) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the any Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person provide an Obligor with an invoice evidencing indebtedness related to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsa Pool Receivable.
(b) Any amounts subject Notwithstanding anything to the contrary in this Agreement, solely for purposes of the Borrower’s indemnification provisions obligations in clauses (ii), (iii), (vii) and (xi) of this Section 9.1 Article XII, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be paid by the Borrower deemed to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand thereforbe not so qualified.
(c) If for any reason the foregoing indemnification provided above in this Section 9.1 is unavailable to the any Borrower Indemnified Party or is insufficient to hold an Indemnified Party it harmless, then the Borrower, Borrower shall contribute to such Borrower Indemnified Party the amount paid or payable by such Borrower Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party economic interests of the Borrower and its Affiliates on the one hand and the Borrower, such Borrower Indemnified Party on the other hand but also in the matters contemplated by this Agreement as well as the relative fault of the Borrower and its Affiliates and such Borrower Indemnified Party as well as with respect to such loss, claim, damage or liability and any other relevant equitable considerations.
(d) . The reimbursement, indemnity and contribution obligations of the Borrower under this Section 9.1 12.01 shall be in addition to any liability which the Borrower may otherwise have, shall extend upon the same terms and conditions to each Borrower Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Borrower and the Borrower Indemnified Parties.
(d) Any indemnification or contribution under this Section 12.01 shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 2 contracts
Samples: Receivables Financing Agreement (Applied Industrial Technologies Inc), Receivables Financing Agreement (Integra Lifesciences Holdings Corp)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured Party or its assignee Parties and each of their respective Affiliates assigns and officers, directors, employees, members employees and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related reasonable and documented out-of-pocket costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively referred to as the “Indemnified Amounts”) awarded against, incurred by or asserted against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this AgreementAgreement or having an interest in the Collateral or in respect of any Loan included in the Collateral, excluding, however, any Indemnified Amounts to the extent resulting from gross negligence or negligence, willful misconduct misconduct, on the part of any Indemnified Party. Without limiting the foregoing, If the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) has made any Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the indemnity payment of any Transferred Loan that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loan);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) 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 merchandise or services that are the subject of any Transferred Loan or the Related Property;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Agent or a Secured Party of any amount previously distributed in reduction of Advances Outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related pursuant to this Agreement Section 10.1 or Section 10.3 and such payment fully indemnified the use of proceeds of Advances or recipient thereof and the recipient thereafter collects any payments from others in respect of any Transferred Loan or such Indemnified Amounts then, the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator recipient shall repay to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit an amount equal to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any amount it has collected from others in respect of such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsIndemnified Amounts.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 10.1 shall be paid by the Borrower to the Collateral Agent on behalf of the applicable Indemnified Party within two pursuant to Section 2.7 or 2.8, as applicable, on the Payment Date following such Person’s demand therefor (2if given at least five (5) Business Days following prior to such Payment Date, and, if not, on the Administrative Agent’s demand therefornext subsequent Payment Date), accompanied by a reasonably detailed description in writing of the related damage, loss, claim, liability and related costs and expenses.
(c) If for any reason the indemnification provided above in this Section 9.1 10.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, Borrower shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, Borrower on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations; provided that the Borrower shall not be required to contribute in respect of any Indemnified Amounts excluded in Section 10.1(a).
(d) The obligations of the Borrower under this Section 9.1 10.1 shall survive the resignation or removal of the Administrative Agent Agent, the Collateral Manager or any Managing the Collateral Agent and the termination of this Agreement.
(e) The parties hereto agree that This Section 10.1 shall not apply with respect to Taxes other than any Taxes representing damages, losses, claims, etc. arising from non-Tax claims.
(f) Notwithstanding anything contained in this Section 10.1 or otherwise in this Agreement or in any other Transaction Document, the provisions of Section 9.1 Borrower shall not be interpreted to provide recourse liable to the Borrower against loss by reason Administrative Agent, the Lenders, any of the bankruptcy Secured Parties or insolvency any other Person for any consequential (including loss of profit), indirect, special or punitive damages under this Agreement or any other credit condition) of, or default by, Transaction Document; provided that nothing contained in this sentence shall limit the Borrower’s indemnification obligations hereunder to the extent such damages are included in a third party claim in connection with which an Obligor on, any Transferred LoanIndemnified Party is entitled to indemnification hereunder.
Appears in 2 contracts
Samples: Loan and Security Agreement (Stepstone Private Credit Fund LLC), Loan and Security Agreement (Stepstone Private Credit Fund LLC)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person the Administrative Agent, the Credit Parties, the Affected Persons and their respective assigns, officers, directors, agents and employees (each, a “Borrower Indemnified Party”) may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any Secured each Borrower Indemnified Party or its assignee and each of their respective Affiliates and officers, directors, employees, members and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, from and against any and all damages, losses, claims, losses and liabilities and related costs and expenses, (including reasonable attorneys’ fees and disbursements Attorney Costs) (all of the foregoing being collectively referred to as “Borrower Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result resulting from this Agreement or any other Transaction Document or the use of this Agreement, proceeds of the Credit Extensions or the security interest in respect of any Pool Receivable or any other Collateral; excluding, however, (a) Borrower Indemnified Amounts to the extent resulting a final judgment of a court of competent jurisdiction holds that such Borrower Indemnified Amounts resulted from the gross negligence or willful misconduct on by the part of any Borrower Indemnified PartyParty seeking indemnification and (b) Taxes that are covered by Section 5.03. Without limiting or being limited by the foregoing, the Borrower shall pay on demand (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 4.01), to each Borrower Indemnified Party any and all amounts necessary to indemnify the such Borrower Indemnified Parties for Party from and against any and all Borrower Indemnified Amounts relating to or resulting from:from any of the following (but excluding Borrower Indemnified Amounts and Taxes described in clauses (a) and (b) above):
(i) any Loan treated as or represented by Pool Receivable which the Borrower to be or the Servicer includes as an Eligible Loan that Receivable as part of the Net Receivables Pool Balance but which is not at the applicable time an Eligible LoanReceivable at such time;
(ii) reliance on any representation representation, warranty or warranty statement made or deemed made by the Borrower, the Servicer Borrower (or one of its Affiliates) or any of their its respective officers officers) under or in connection with this Agreement, any of the other Transaction Documents, any Information Package, Bi-Weekly Report or any other information or report delivered by or on behalf of the Borrower pursuant hereto which shall have been false untrue or incorrect in any material respect when made or deemed made or deliveredmade;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Loan comprising a portion of the Collateral, Pool Receivable or the nonconformity related Contract; or the failure of any Loan, Pool Receivable or the Related Property with related Contract to conform to any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Loans included as a part of the CollateralLaw;
(iv) the failure to vest and maintain vested in the Administrative Agent a first priority perfected security interest in all or any portion of the Collateral, in each case free and clear of any Adverse Claim;
(v) the failure to filehave filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable and the other Collateral and Collections in respect thereof, whether at the time of any Advance Credit Extension or at any subsequent time and as required by the Transaction Documentstime;
(vi) any dispute, claim, offset claim or defense (other than the discharge in bankruptcy of the Obligorbankruptcy) of the an Obligor to the payment of any Transferred Loan that is, or is purported to be, an Eligible Loan Pool Receivable (including, without limitation, (A) a defense based on such Pool Receivable or the Loan related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms terms), or (B) the equitable subordination of any other claim resulting from or relating to collection activities with respect to such Loan)Pool Receivable;
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform any its duties or obligations in accordance with the provisions hereof and of this Agreement each other Transaction Document related to Pool Receivables or any failure by to timely and fully comply with the Originator, the Borrower or any Affiliate thereof Credit and Collection Policy in regard to perform its respective duties under the Transferred Loanseach Pool Receivable;
(viii) any products liability claim or personal injury or property damage suit liability, environmental or other similar or related claim or action of whatever sort arising out of or in connection with merchandise any Pool Receivable or other merchandise, goods or services that which are the subject of or related to any Transferred Loan or the Related PropertyPool Receivable;
(ix) the commingling of Collections of Pool Receivables at any time with other funds;
(x) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or the use of proceeds of any Credit Extensions or in respect of any Pool Receivable or other Collateral or any related Contract;
(xi) any failure of the Borrower to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(xii) any setoff with respect to any Pool Receivable;
(xiii) any claim brought by any Person other than a Borrower Indemnified Party arising from any activity by the Borrower or any Affiliate of the Borrower in servicing, administering or collecting any Pool Receivable;
(xiv) the failure by the Borrower to pay when due any Taxes for which the Borrower is liabletaxes, including including, without limitation, sales, excise or personal property taxes payable in connection with the Collateraltaxes;
(xxv) any repayment failure of a Lock-Box Bank to comply with the terms of the applicable Lock-Box Agreement or any amounts payable by the Administrative AgentAgent to a Lock-Box Bank under any Lock-Box Agreement;
(xvi) any dispute, any Managing Agent claim, offset or a Secured Party defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any amount previously distributed Pool Receivable (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in reduction of Advances Outstanding or payment of Interest accordance with its terms), or any other amount due hereunder claim resulting from the sale of goods or under the rendering of services related to such Pool Receivable or the furnishing or failure to furnish any Hedging Agreement, in each case which amount such goods or services or other similar claim or defense not arising from the Administrative Agent, such Managing Agent or a Secured Party believes in good faith is required financial inability of any Obligor to be repaidpay undisputed indebtedness;
(xixvii) any investigationaction taken by the Administrative Agent as attorney-in-fact for the Borrower, litigation any Originator or proceeding related the Servicer pursuant to this Agreement or any other Transaction Document;
(xviii) the use of proceeds of Advances or in respect of any Transferred Loan or the Related Property;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, Credit Extension; or
(xiiixix) the failure any reduction in Capital as a result of the Borrower, the Originator distribution of Collections if all or a portion of such distributions shall thereafter be rescinded or otherwise must be returned for any of their respective agents or representatives to remit to the Servicer or the Administrative Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collectionsreason.
(b) Any amounts subject Notwithstanding anything to the contrary in this Agreement, solely for purposes of the Borrower’s indemnification provisions obligations in clauses (ii), (iii), (vii) and (xi) of this Section 9.1 Article XIII, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be paid by the Borrower deemed to the applicable Indemnified Party within two (2) Business Days following the Administrative Agent’s demand thereforbe not so qualified.
(c) If for any reason the foregoing indemnification provided above in this Section 9.1 is unavailable to the any Borrower Indemnified Party or is insufficient to hold an Indemnified Party it harmless, then the Borrower, Borrower shall contribute to such Borrower Indemnified Party the amount paid or payable by such Borrower Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party economic interests of the Borrower and its Affiliates on the one hand and the Borrower, such Borrower Indemnified Party on the other hand but also in the matters contemplated by this Agreement as well as the relative fault of the Borrower and its Affiliates and such Borrower Indemnified Party as well as with respect to such loss, claim, damage or liability and any other relevant equitable considerations.
(d) . The reimbursement, indemnity and contribution obligations of the Borrower under this Section 9.1 shall be in addition to any liability which the Borrower may otherwise have, shall extend upon the same terms and conditions to each Borrower Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Borrower and the Borrower Indemnified Parties.
(d) Any indemnification or contribution under this Section shall survive the removal of the Administrative Agent or any Managing Agent and the termination of this Agreement.
(e) The parties hereto agree that the provisions of Section 9.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, an Obligor on, any Transferred Loan.
Appears in 1 contract
Samples: Receivables Financing Agreement (Quintiles Transnational Holdings Inc.)
Indemnities by the Borrower. (a) Without limiting any other rights that any such Person may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Administrative Deal Agent, the Managing Agents, the Backup Servicer, any Successor Servicer, the Collateral Custodian, any other Secured Party or its assignee and each of their respective Affiliates and officers, directors, employees, members employees and agents thereof (collectively, the “Indemnified Parties”), forthwith on demand, 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 “Indemnified Amounts”) awarded against or incurred by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this Agreement, excluding, however, Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of any Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Transferred Loan treated as or represented by the Borrower to be an Eligible Loan that is not at the applicable time an Eligible Loan;
(ii) reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (or one of its Affiliates) or any of their respective officers under or in connection with this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Borrower or the Servicer (or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any Transferred Loan comprising a portion of the Collateral, or the nonconformity of any Loan, the Transferred Loan or any Related Property with any such Applicable Law or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans included as a part of the Collateral;
(iv) the failure to vest and maintain vested in the Administrative Agent Deal Agent, as agent for the Secured Parties, a first priority perfected security interest in the Collateral;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Collateral whether at the time of any Advance or Swingline Advance or at any subsequent time and as required by the Transaction Documents;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Loan included as part of the Collateral that is, or is purported to be, an Eligible Loan (including, without limitation, (A) a defense based on the Transferred Loan not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms or (B) the equitable subordination of such Loanterms);
(vii) any failure of the Borrower or the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of this Agreement or any failure by the Originator, the Borrower or any Affiliate thereof to perform its respective duties under the Transferred Loans;
(viii) any products liability claim or environmental 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 the Related Property, merchandise or services that are the subject of any Transferred Loan included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(ix) the failure by Borrower to pay when due any Taxes for which the Borrower is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Collateral;
(x) any repayment by the Administrative Agent, any Managing Deal Agent or a another Secured Party of any amount previously distributed in reduction of Advances Outstanding Outstanding, the Swingline Advances outstanding or payment of Interest or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrative Agent, such Managing Deal Agent or a another Secured Party believes in good faith is required to be repaid;
(xi) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Advances, Swingline Advances or in respect of any Transferred Loan included as part of the Collateral or the Related PropertyProperty included as part of the Collateral;
(xii) any failure by the Borrower to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Borrower of any Transferred Loan or the Related Property or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code, or;
(xiii) the failure of the Borrower, the Originator or any of their respective agents or representatives to remit to the Servicer or the Administrative Deal Agent, Collections on the Collateral remitted to the Borrower or any such agent or representative in accordance with the terms hereof or the commingling by the Borrower or any Affiliate of any collections;
(xiv) the failure by the Borrower to comply with any of the covenants relating to the Hedging Agreements in accordance with the Transaction Documents; or
(xv) fluctuations in an Alternative Currency which a Lender may sustain as a consequence of the payment of any Advance Outstanding in an Alternative Currency (including as a result of any mandatory prepayment hereunder or the occurrence of a Termination Event or the Termination Date) other than in the Alternative Currency in which such Advance was made, including, without limitation, in respect of conversions pursuant to Section 2.11(d).
(b) Any amounts subject to the indemnification provisions of this Section 9.1 10.1 shall be paid by the Borrower to the applicable Indemnified Party within two (2) Business Days following the Administrative Agentsuch Person’s demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 10.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Borrower, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Borrower under this Section 9.1 10.1 shall survive the removal of the Administrative Agent Deal Agent, the Backup Servicer or any Managing Agent the Collateral Custodian and the termination of this Agreement.
(e) The parties hereto agree that the provisions of this Section 9.1 10.1 shall not be interpreted to provide recourse to the Borrower against loss by reason of the bankruptcy bankruptcy, insolvency or insolvency (or other credit condition) of, or default by, lack of creditworthiness of an Obligor on, on any Transferred Loan.
Appears in 1 contract
Samples: Loan Funding and Servicing Agreement (American Capital Strategies LTD)
