Indemnities by the Originator. Without limiting any other rights which the Company may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from: (a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company; (b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, which shall have been false or incorrect in any respect when made or deemed made; (c) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulation; (d) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by the Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter; (e) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent time; (f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the services related to any such Receivable or the furnishing of or failure to furnish such services; (g) any product liability claim arising out of or in connection with services that are the subject of any Receivable generated by the Originator; and (h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Ugi Corp /Pa/), Purchase and Sale Agreement (Ugi Corp /Pa/), Purchase and Sale Agreement (Ugi Corp /Pa/)
Indemnities by the Originator. Without limiting any other rights which the Company that any Cartus Indemnified Party may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Buyer and each of its successors, permitted transferees and assigns, and all officers, directors, shareholders, controlling Persons, employees and agents of any of the foregoing (each of the foregoing Persons being individually called Persons, a “Purchase and Sale Cartus Indemnified Party”), forthwith on demand, from and against any and all damages, losses, claimsclaims (whether on account of settlements or otherwise), actions, suits, demands, judgments, liabilities (including penalties), obligations or disbursements of any kind or nature and related costs and expenses, expenses (including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”disbursements) awarded against or incurred by any of them them, arising out of or as a result of the failure any of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out following (all of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale collectively, “Cartus Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:Losses”):
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or under any of its officers) under or in connection with this Agreement the Transaction Documents to which it is a party, any Receivables Activity Report or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto (including in its capacity as Servicer) with respect to the Originator or theretothe Cartus Purchased Assets, which shall have having been false untrue or incorrect in any respect when made or deemed to have been made; provided, however, that the Originator’s obligation to make a Cartus Noncomplying Asset Adjustment pursuant to Section 4.3(a) with respect to any representation made in Section 6.1(1) as to Eligible Receivables having been incorrect when made shall be the only remedy available to the Buyer or its assignees relating to such incorrect representation;
(cb) the failure by the Originator to comply with any material applicable law, rule or regulation applicable to the Originator with respect to any Receivable generated by the Originator Cartus Purchased Asset or the related Contract, or the nonconformity any failure of any Receivable generated by the Originator or the related Contract a Cartus Purchased Asset to comply with any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by the Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely regulation as a result of an act of the Company, the Issuer or the Administrator whether existing at the time date of the purchase or contribution sale of such Receivables or at any time thereafterCartus Purchased Asset hereunder;
(e) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the services related to any such Receivable or the furnishing of or failure to furnish such services;
(g) any product liability claim arising out of or in connection with services that are the subject of any Receivable generated by the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law.
Appears in 3 contracts
Samples: Omnibus Amendment (Domus Holdings Corp), Omnibus Amendment (Realogy Corp), Omnibus Amendment (NRT Settlement Services of Missouri LLC)
Indemnities by the Originator. Without limiting any other rights which that the Company Buyer and its assigns (each, an "Indemnified Party") may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, Party from and against any and all damages, losses, claims, judgmentsliabilities, liabilities and related costs 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 called “Purchase and Sale referred to as "Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result resulting from any of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, following (excluding, however, (ia) Purchase and Sale Indemnified Amounts to the extent resulting a final non-appealable judgment of a court of competent jurisdiction finds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of such Purchase Indemnified Party and Sale (b) any income, franchise, profits, branch profits or similar taxes incurred by such Indemnified Party, Party arising out of or as a result of this Agreement or the ownership of Transferred Receivables):
(i) any Receivable which any Transaction Party represents to be or treats as an Eligible Receivable but which is not an Eligible Receivable as of the date of such representation or treatment;
(ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty certification, report or other statement made or deemed made by the Originator any Transaction Party (or any of its their respective officers) under or in connection with this Agreement or any of the other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, Documents which shall have been false or incorrect in any respect when made or deemed made;
(ciii) the failure by the Originator any Transaction Party to comply with any applicable law, rule or regulation Law with respect to any Receivable generated by the Originator or the related Contract, ; or the nonconformity failure of any Receivable generated by the Originator or the related Contract with to conform to any such applicable law, rule or regulationLaw;
(div) the failure to vest and maintain vested in the Company an Buyer absolute ownership interest of each Transferred Receivable and the Related Security and Collections in the Receivables generated by the Originator respect thereof, free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(ev) 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 with respect to any Receivables or purported Receivables generated by and the OriginatorRelated Security and Collections in respect thereof, whether at the time of any purchase or contribution Purchase or at any subsequent time;
(fvi) any dispute, claim, offset claim or defense (other than discharge in bankruptcy) of the an Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s Receivable or the related Contract’s 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 services related relating to any Contract or relating to billing or collection activities with respect to any such Contract or any Receivable (if such billing or collection activities were performed by the furnishing Originator or any of its Affiliates acting as Servicer) or failure relating to furnish such servicesany Contract related thereto;
(gvii) any product liability failure of any Transaction Party to perform its duties or obligations in accordance with the provisions hereof and each other Transaction Document or to perform its duties or obligations under the Contracts 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, environmental or other claim arising out of or in connection with merchandise, goods or services that which are the subject of any Receivable generated by Contract or the Originator; andsale of which gave rise to any Receivable;
(hix) the commingling of Collections of Transferred Receivables at any time with other funds;
(x) any tax investigation, litigation or governmental fee proceeding (actual or charge threatened) related to this Agreement or any other Transaction Document or the use of proceeds of Purchases or the ownership of Transferred Receivables or in respect of any Receivable or Related Security or Contract;
(xi) any Receivable becoming a Diluted Receivable or any other setoff with respect to any Receivable;
(xii) any claim brought by any Person other than an Indemnified Party arising from any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated activity by the Originator or any Related Security connected with Affiliate of the Originator in servicing, administering or collecting any such ReceivablesReceivable; or
(xiii) the failure by any Transaction Party to pay when due any taxes, including, without limitation, sales, excise or personal property taxes. If Notwithstanding anything to the contrary in this Agreement, solely for purposes of the Originator's indemnification obligations pursuant to clauses (ii) and (vii) of this Article VIII, any reason representation, warranty or covenant qualified by the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality shall be deemed to be not so qualified. It is expressly agreed and understood by the parties hereto (x) that the foregoing indemnification provided above is not intended to, and shall not, constitute a guarantee of collectibility or payment of the Receivables and (y) that nothing in this Section 9.1 is unavailable 8.01 shall require the Originator to a Purchase and Sale Indemnified Party indemnify any Person for Receivables that are not collected, not paid or is insufficient uncollectible solely on account of the insolvency, bankruptcy, or financial inability to hold such Purchase and Sale Indemnified Party harmless, then pay of the Originator, severally and for itself, shall contribute applicable Obligor except to the amount paid or payable by extent of any Indemnified Amounts arising from the improper characterization of any such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable lawReceivables as Eligible Receivables.
Appears in 2 contracts
Samples: Receivables Purchase and Contribution Agreement (Medco Health Solutions Inc), Receivables Purchase and Contribution Agreement (Medco Health Solutions Inc)
Indemnities by the Originator. Without limiting any other rights which the Company may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”"PURCHASE AND SALE INDEMNIFIED PARTY"), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”"PURCHASE AND SALE INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or Agreement, any other Transaction Document, Document or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excludingEXCLUDING, howeverHOWEVER, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) any indemnification which has the effect of recourse with respect to any Receivable to the extent that such Receivable is uncollectible in whole or part on account of insolvency, bankruptcy or the lack of creditworthiness credit worthiness or any Insolvency Proceeding of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income propertyor gross receipts (except a tax imposed by the jurisdiction under the laws of which such Purchase and Sale Indemnified Party is organized or otherwise is considered doing business (unless such Purchase and Sale Indemnified Party would not be considered doing business in such jurisdiction, but for having entered into, or gross receiptsengaged in the transactions in connection with, this Agreement or any other Transaction Document) or any political subdivision thereof). Without limiting the foregoing, the Originator shall indemnify indemnifies each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, thereto which shall have been false or incorrect in any respect when made or deemed made;
(c) the failure by the Originator to comply with any applicable law, rule or regulation Legal Requirement with respect to any Receivable generated by the Originator or the related ContractContract or applicable Legal Requirement under which any Receivable arises, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulationLegal Requirement;
(d) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by the Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) the failure failure, to the extent resulting from an action or inaction of Originator or any Affiliate thereof, to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than any reduction, revision or discharge in bankruptcyany Insolvency Proceeding relating to the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense not connected to an Insolvency Event based on such Receivable’s or 's, the related Contract’s 's or applicable Legal Requirements 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 services related to any such Receivable or the furnishing of or failure to furnish such servicesgoods or services or relating to any collection activity with respect to such Receivable by the Originator or any Affiliate thereof;
(g) any product products liability claim or other claim, investigation, litigation or proceeding arising out of or in connection with merchandise, insurance or services that are the subject of any Receivable generated by the Originator; andgive rise to a Receivable;
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause CLAUSE (iii) in the proviso to exclusion in the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with any such Receivables;
(i) any failure of the Originator or any Affiliate of the Originator to perform its duties or obligations in accordance with the provisions hereof or under the Contracts or applicable Legal Requirements; and
(j) any obligation or liability of any Purchase and Sale Indemnified Party to any Obligor or any other third Person with respect to any Receivables, Contracts or applicable Legal Requirements related thereto, other than any obligation or liability resulting from the Servicer (if the Servicer is not the Originator or an Affiliate of the Originator) failing to comply with applicable Legal Requirements, or any obligation of any Purchase and Sale Indemnified Party to perform any of the obligations of the Originator with respect to any Receivables, Contracts or applicable Legal Requirements related thereto. If for any reason the indemnification provided above in this Section SECTION 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmlessharmless to the extent contemplated hereby, then the Originator, severally and for itself, Originator shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Louisville Gas & Electric Co /Ky/), Purchase and Sale Agreement (Louisville Gas & Electric Co /Ky/)
Indemnities by the Originator. Without limiting any other rights which the Company Buyer may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Buyer and each of its officersassigns and transferees (each, directors, employees and agents (each of the foregoing Persons being individually called a an “Purchase and Sale Indemnified Party”), forthwith on demand, ) from and against any and all claims, damages, lossescosts, claims, judgments, liabilities and related costs and expenses, losses and liabilities (including reasonable and documented attorneys’ fees and disbursements fees) (all of the foregoing being collectively called referred to as “Purchase and Sale Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under resulting from this Agreement or the ownership of Transferred Receivables or in respect of any other Transaction Document, Transferred Receivable or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefromany Contract, excluding, however, (ia) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (iib) recourse with respect to any Receivable for Receivables that are uncollectible solely due to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy relevant Obligor’s unwillingness or lack of creditworthiness of the related Obligor financial inability to pay or (except as otherwise specifically provided under this Agreement) and (iiic) any tax based upon income taxes or measured franchise taxes imposed on such Indemnified Party by net income propertythe jurisdiction under the laws of which such Indemnified Party is organized or any political subdivision thereof, arising out of or gross receiptsas a result of this Agreement or the ownership of Transferred Receivables or in respect of any Transferred Receivable or any Contract. Without limiting or being limited by the foregoingforegoing (but subject to the aforementioned exclusions), the Originator shall indemnify pay on demand to each Purchase and Sale Indemnified Party for Purchase any and Sale all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts relating to or resulting fromfrom any of the following:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty or statement made or deemed made by the Originator (or any of its officers) under or in connection with this Agreement or any Agreement, and the other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, which Documents that shall have been false or incorrect in any material respect when made or deemed made;
(cb) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Transferred Receivable generated by the Originator or the related Contract, ; or the nonconformity failure of any Transferred Receivable generated by the Originator or the related Contract with to conform to any such applicable law, rule or regulation;
(dc) the failure to vest and maintain vested in the Company an Buyer absolute ownership interest of the Transferred Receivables that are, or that purport to be, the subject of a purchase or contribution under this Agreement and the Related Security and Collections in the Receivables generated by the Originator respect thereof free and clear of any Adverse Claim, Claim (other than an any Adverse Claim arising solely as a result of an act of the Company, the Issuer under or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at permitted by any time thereafterTransaction Document);
(ed) the failure of the Originator 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 with respect to any Receivables that are, or purported Receivables generated by that purport to be, the Originatorsubject of a purchase or contribution under this Agreement and the Related Security and Collections in respect thereof, whether at the time of any purchase or contribution or at any subsequent time, in each case to the extent required hereunder;
(fe) without double counting for any Dilution for which a repurchase has been made under Section 2.05 of this Agreement, any dispute, claim, offset or defense (other than discharge in bankruptcybankruptcy of the Obligor or any other credit related losses) of the Obligor to the payment of any Transferred Receivable that is, or purported Receivable generated by that purports to be, the Originator subject of a purchase or contribution under this Agreement (including, without limitation, a defense based on such Receivable’s Transferred Receivable or the related Contract’s 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 services related to any such Transferred Receivable or the furnishing of or failure to furnish such servicesgoods or services or relating to collection activities with respect to such Transferred Receivable (to the extent such collection activities were performed by the Originator or any of its Affiliates acting as Collection Agent);
(f) any failure of the Originator to perform its duties or obligations in accordance with the provisions hereof or to perform its duties or obligations under any Contract related to a Transferred Receivable;
(g) any product products liability or other claim (including any claim for unpaid sales, excise or other taxes) arising out of or in connection with goods or services that which are the subject of any Receivable generated by the Originator; andContract;
(h) the commingling of Collections of Transferred Receivables by the Originator or a designee of the Originator, as Collection Agent or otherwise, at any tax time with other funds of the Originator or governmental fee an Affiliate of the Originator (including any such funds that are proceeds of Excluded Receivables) or charge the failure of Collections to be deposited into a Collection Account or the Controlled Account;
(i) any investigation, litigation or proceeding related to this Agreement or the ownership of Transferred Receivables, the Related Security, or Collections with respect thereto or in respect of any Transferred Receivable, Related Security or Contract;
(j) any Collection Agent Fees or other costs and expenses payable to any replacement Collection Agent, to the extent in excess of the Collection Agent Fees payable hereunder;
(k) any failure of the Originator to comply with its covenants contained in Section 5.01; or
(l) any claim brought by any Person other than an Indemnified Party arising from any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated activity by the Originator or any Related Security connected with Affiliate of the Originator in servicing, administering or collecting any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable lawTransferred Receivable.
Appears in 2 contracts
Samples: Assignment and Acceptance Agreement and Amendment (United Rentals North America Inc), Receivables Purchase Agreement (United Rentals North America Inc)
Indemnities by the Originator. Without limiting any other rights which the Company Originator Indemnified Parties may have hereunder or under applicable lawLaw, the each Originator hereby agrees agrees, jointly and severally, to indemnify the Company SPV and each of its successors, transferees and assigns and all officers, directors, employees shareholders, controlling persons, employees, counsel and other agents (each of any of the foregoing Persons being individually called a (collectively, “Purchase and Sale Originator Indemnified PartyParties”), forthwith on demand, ) from and against any and all damages, losses, claims, judgmentsliabilities, liabilities and related costs and expenses, including reasonable attorneys’ fees (which attorneys may be employees of any Originator Indemnified Party) and disbursements (all of the foregoing being collectively called referred to as “Purchase and Sale Originator Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between any Originator and any of the Originator Indemnified Parties or between any of the Originator Indemnified Parties and any third party, in each case arising out of or as a result of this Agreement, the failure of other Transaction Documents, the Originator to perform its obligations under this Agreement ownership or maintenance, either directly or indirectly, by the SPV or any other Transaction Document, Originator Indemnified Party of any interest in any Conveyed Receivable and Related Assets or arising out any of the claims asserted against a Purchase and Sale Indemnified Party relating to the other transactions contemplated herein hereby or therein or the use of proceeds thereof or therefromthereby, excluding, however, (i) Purchase and Sale Originator Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Originator Indemnified Party, Party or (ii) recourse with respect to any Receivable to the extent that such Receivable is for uncollectible on account of insolvencyReceivables, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receiptsExcluded Taxes. Without limiting the generality of the foregoing, the each Originator shall indemnify each Purchase and Sale Originator Indemnified Party for Purchase and Sale Originator Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the any Originator (or any officers of its officers) any Originator under or in connection with this Agreement Agreement, any of the other Transaction Documents, any Servicer Report or any other Transaction Document, or any written information or report delivered by the any Originator pursuant hereto hereto, or thereto, pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made;
(cb) the failure by the any Originator to comply with any applicable law, rule or regulation Law with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Conveyed Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulationLaw;
(dc) the failure to vest and maintain vested in the Company an SPV a first priority, perfected ownership interest in the Conveyed Receivables generated by the Originator and Related Assets, free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(ed) the failure by any Originator, following a request from the Agent, to file, or any delay in filing, financing statements statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Conveyed Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent timeand Related Assets;
(fe) any dispute, claim, offset or defense (other than discharge in bankruptcy) or as a result of the uncollectibility of any Receivable) of the Obligor to the payment of any Conveyed Receivable or purported Receivable generated by the Originator (including, without limitation, including a defense based on such Receivable’s Receivable or the related Contract’s Contract not being a the 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 merchandise or services related to any such Receivable or the furnishing of or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Conveyed Receivables or the related Contracts restricting assignment of any Conveyed Receivables;
(f) any failure of any Originator to perform its duties or obligations in accordance with the provisions hereof;
(g) any product 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 Receivable generated by the Originator; andConveyed Receivable;
(h) the transfer to the SPV of an interest in any tax or governmental fee or charge (Receivable other than an Eligible Receivable;
(i) the failure by any tax excluded Originator to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Conveyed Receivables or related Contracts;
(j) the failure of any Originator to pay when due any sales, excise or personal property taxes payable in connection with any of the Conveyed Receivables;
(k) any repayment by any Originator Indemnified Party of any amount previously distributed in reduction of Net Investment which such Originator Indemnified Party believes in good faith is required to be made;
(l) the commingling by any Originator of Collections at any time with any other funds;
(m) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of purchases by any Originator, the ownership of the Asset Interest, or any Conveyed Receivable or Related Asset;
(n) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes pursuant to clause the instructions of the Servicer, the SPV, any Originator or the Agent (iii) in the proviso to the preceding sentence)extent such Person is entitled to give such instructions in accordance with the terms hereof, all interest of the Second Tier Agreement and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise any applicable Blocked Account Agreement) whether by reason of the purchase exercise of set-off rights or ownership otherwise;
(o) 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 Receivables generated failure of any Originator to qualify to do business or file any notice of business activity report or any similar report;
(p) any attempt by any Person to void, rescind or set-aside any transfer by any Originator to the SPV of any Conveyed Receivable or Related Assets under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(q) any action taken by any Originator or the Servicer (if the Servicer is an Affiliate or designee of an Originator) in the enforcement or collection of any Conveyed Receivable (unless such action was directed by the Originator Agent or the Investors in bad faith or with gross negligence or willful misconduct);
(r) the use of the proceeds of any Related Security connected with Purchase hereunder; or
(s) any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount all amounts paid or payable by such Purchase and Sale Indemnified Party the SPV pursuant to Sections 9.3, 9.4 or 9.5 of the maximum extent permitted under applicable lawSecond Tier Agreement.
Appears in 2 contracts
Samples: Sale Agreement (Greif Inc), Sale Agreement (Greif Inc)
Indemnities by the Originator. Without limiting any other rights which the Company Originator Indemnified Parties may have hereunder or under applicable lawApplicable Law, the Originator hereby agrees to indemnify the Company SPV and each of its successors, transferees and assigns and all officers, directors, employees shareholders, controlling persons, employees, counsel and other agents (each of any of the foregoing Persons being individually called a (collectively, “Purchase and Sale Originator Indemnified PartyParties”), forthwith on demand, ) from and against any and all damages, losses, claims, judgmentsliabilities, liabilities and related costs and expenses, including reasonable attorneys’ fees (which such attorneys may be employees of any Originator Indemnified Party) and disbursements (all of the foregoing being collectively called referred to as “Purchase and Sale Originator Indemnified Amounts”) awarded against or incurred by any of them the Originator Indemnified Parties in any action or proceeding between the Originator and any of the Originator Indemnified Parties or between any of the Originator Indemnified Parties and any third party relating to or resulting from the following:
(a) any representation or warranty made by the Originator or any officers of the Originator under or in connection with this Agreement, any of the other Transaction Documents, or any other information or report delivered by the Originator or any officers of the Originator pursuant hereto, which shall have been false or incorrect in any material respect when made or deemed made;
(b) the failure by the Originator to comply with any Applicable Law with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such Applicable Law;
(c) the failure to vest and maintain vested in the SPV a valid perfected first priority ownership interest in favor of the SPV in the Sold Assets free and clear of any Adverse Claim (other than Permitted Adverse Claims); or in the event that the conveyance by the Originator to the SPV of the Sold Assets hereunder were construed not to be a sale, the failure to grant to the SPV (and its assignee) a valid perfected first priority security interest in all the Receivables, the Related Security, the related Equipment and the proceeds relating thereto, free and clear of all Adverse Claims (other than the Permitted Adverse Claims);
(d) the failure to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents required to be filed by the Originator under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Sold Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy) of an Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) arising as a result of a breach by the Originator of its obligations under the Receivables;
(f) 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 relating to or which are the subject of any Receivable or related Contract;
(g) the transfer to the SPV of an interest in any Receivable other than an Eligible Receivable (as of the related Purchase Date) for which the SPV has not received a Repurchase Amount from the Originator;
(h) the failure by the Originator to comply with any term, provision or covenant applicable to the Originator contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its duties or obligations under the Receivables or related Contracts;
(i) any commingling by the Originator of Collections of Receivables at any time with other funds;
(j) the use of proceeds of purchases by the Originator, or the ownership of the Sold Assets;
(k) failure of any Lock-Box Bank, the Intercreditor Master Agent, or the Originator to remit any Collections held in the Lock-Box Accounts or any related lock-boxes or to this Collection Account, whether by reason of the exercise of set-off rights or otherwise; or
(l) 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 Originator to perform its obligations under this Agreement qualify to do business or file any notice of business activity report or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, similar report; excluding, however, (i) Purchase and Sale Originator Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Originator Indemnified Party, Party or (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, which shall have been false or incorrect in any respect when made or deemed made;
(cSecond Tier Agreement) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an ownership interest in the for uncollectible Receivables generated by the Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the services related to any such Receivable or the furnishing of or failure to furnish such services;
(g) any product liability claim arising out of or in connection with services that are the subject any credit default of any Receivable generated by the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable lawan Obligor.
Appears in 2 contracts
Samples: Sale Agreement (Commercial Credit, Inc.), Sale Agreement (Commercial Credit, Inc.)
Indemnities by the Originator. Without limiting any other rights which the Company that any Cartus Indemnified Party may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Buyer and each of its successors, permitted transferees and assigns, and all officers, directors, shareholders, controlling Persons, employees and agents of any of the foregoing (each of the foregoing Persons being individually called Persons, a “Purchase and Sale Cartus Indemnified Party”), forthwith on demand, from and against any and all damages, losses, claimsclaims (whether on account of settlements or otherwise), actions, suits, demands, judgments, liabilities (including penalties), obligations or disbursements of any kind or nature and related costs and expenses, expenses (including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”disbursements) awarded against or incurred by any of them them, arising out of or as a result of the failure any of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out following (all of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale collectively, “Cartus Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:Losses”):
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or under any of its officers) under or in connection with this Agreement or any other the Transaction DocumentDocuments to which it is a party, or any written information or report delivered by the Originator pursuant hereto (including in its capacity as Servicer) with respect to the Originator or theretothe Cartus Purchased Assets, which shall have having been false untrue or incorrect in any respect when made or deemed to have been made;
(cb) the failure by the Originator to comply with any material applicable law, rule or regulation Requirement of Law with respect to any Receivable generated by the Originator Cartus Purchased Asset or the related Contract, or the nonconformity any failure of any Receivable generated by the Originator or the related Contract a Cartus Purchased Asset to comply with any material Requirement of Law as of the date of sale of such applicable law, rule or regulationCartus Purchased Asset hereunder;
(dc) the failure to vest and maintain vested in the Company an Buyer a valid ownership interest in the Receivables generated by the Originator Cartus Purchased Assets, free and clear of any Adverse Claim, other than an Adverse Claim Lien arising solely as through or under it (including without limitation any such failure arising from a result circumstance described in the definition of an act Permitted Exceptions);
(d) any failure of the Company, Originator to perform its duties or obligations in accordance with the Issuer or the Administrator whether existing at the time provisions of the purchase Transaction Documents or contribution of such Receivables or at any time thereafterContract, in each case to which it is a party;
(e) 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 the transfer of any Receivables or purported Receivables generated by Cartus Purchased Assets to the OriginatorBuyer, whether at the time of any purchase or contribution sale or at any subsequent time;
(f) the failure by the Originator to pay when due any disputetaxes owing by it (including without limitation sales, claimexcise or property taxes) payable in connection with the Cartus Purchased Assets, offset other than any such taxes, assessments or defense charges that are being diligently contested in good faith by appropriate proceedings, for which adequate reserves in accordance with GAAP have been set aside on its books and that have not given rise to any Liens (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its termsPermitted Liens), or any other claim resulting from the services related to any such Receivable or the furnishing of or failure to furnish such services;
(g) any product liability claim arising out of or reduction in connection with services that are the subject Unpaid Balance of any Receivable generated included in the Cartus Purchased Assets as a result of any Concession made by the Originator; andOriginator or any Affiliate thereof (other than the Buyer or the Issuer);
(h) any tax product liability, strict liability or governmental fee or charge personal injury claim in connection with the service (other than any tax excluded pursuant service provided by the Buyer or its assignees) that is the subject of any Cartus Purchased Asset; and
(i) any investigation, litigation or proceeding related to any use by Cartus of the proceeds of any Purchase made hereunder. Notwithstanding the foregoing (and with respect to clause (ii) below, without prejudice to the rights that the Buyer may have pursuant to the other provisions of this Agreement or the provisions of any of the other Transaction Documents), in no event shall any Cartus Indemnified Party be indemnified for any Cartus Indemnified Losses (i) resulting from negligence or willful misconduct on the part of such Cartus Indemnified Party, (ii) to the extent the same includes losses in respect of Cartus Purchased Assets and reimbursement therefor that would constitute credit recourse to the Originator for the amount of any Cartus Receivable not paid by the related Obligor or (iii) in resulting from the proviso to the preceding sentence), all interest and penalties thereon action or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason omission of the purchase or ownership of Servicer (unless the Receivables generated by Servicer is the Originator or any Related Security connected with any such Receivablesan Affiliate thereof (other than the Buyer or the Issuer)). If for any reason the indemnification provided above in this Section 9.1 10.1 is unavailable to a Purchase and Sale an Cartus Indemnified Party or is insufficient to hold such Purchase and Sale a Cartus Indemnified Party harmless, then the Originator, severally and for itself, Originator shall contribute to the maximum amount payable or paid to such Cartus Indemnified Party as a result of such loss, claim, damage or payable liability in such proportion as is appropriate to reflect not only the relative benefits received by such Purchase and Sale Cartus Indemnified Party on the one hand and the Originator on the other hand, but also the relative fault of such Cartus Indemnified Party and the Originator, and any other relevant equitable considerations. Notwithstanding anything to the maximum extent permitted under applicable lawcontrary in this Agreement, any representations, warranties and covenants made by the Originator in this Agreement or the other Transaction Documents that are qualified by or limited to events or circumstances that have, or are reasonably likely to have, given rise to a Material Adverse Effect shall (solely for purposes of the indemnification obligations set forth in this Section 10.1) be deemed not to be so qualified or limited.
Appears in 2 contracts
Samples: CRC Purchase Agreement, Purchase Agreement (NRT Settlement Services of Missouri LLC)
Indemnities by the Originator. Without limiting any other rights which the Company Buyer or any Purchase and Sale Indemnified Party may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Buyer and each of its assigns, officers, directors, employees and agents (each of the foregoing Persons being individually called a “"Purchase and Sale Indemnified Party”"), forthwith on demand, from and against any and all claims, damages, losses, claims, judgments, liabilities and related costs and expenses, costs, losses and liabilities (including reasonable attorneys’ fees and disbursements Attorney Costs) (all of the foregoing being collectively called “referred to as "Purchase and Sale Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under resulting from this Agreement (whether directly or any other Transaction Documentindirectly), or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of the proceeds thereof acquired by the Originator hereunder, the ownership of the Receivables and Related Rights or therefromin respect of any Receivable, excluding, however, Related Security or Contract (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse other than with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness collectibility of the Receivables for credit-related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receiptsreasons). Without limiting or being limited by the foregoing, and subject to the exclusions set forth below, the Originator shall indemnify pay on demand to each Purchase and Sale Indemnified Party for any and all amounts necessary to indemnify such party from and against any and all Purchase and Sale Indemnified Amounts relating to or resulting fromfrom any of the following:
(a) the transfer by the Originator of an interest in any Receivable or Related Right to any Person other than the CompanyBuyer;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, thereto which shall have been false or incorrect in any respect when made or deemed made;
(c) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company Buyer an ownership interest in the Receivables generated by and the Originator Related Rights free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) the failure of the Originator to filefile with respect to itself, or any delay by the Originator in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the Originatoror any Related Rights, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s Receivable or the related Contract’s 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 goods or services related to any such Receivable or the furnishing of or failure to furnish such goods or services;
(g) any product liability claim arising out of or in connection with goods or services that are the subject of any Receivable generated by the Originator; andReceivable;
(h) any litigation, proceeding or investigation against the Originator;
(i) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentencebelow), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security Right connected with any such Receivables. If for ; and
(j) any reason failure of the indemnification provided above Originator to perform its duties or obligations in accordance with the provisions of this Section 9.1 is unavailable Agreement or any other Transaction Document; excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of a Purchase and Sale Indemnified Party Party, (ii) any indemnification which has the effect of recourse for non-payment of the Receivables due to credit reasons to any indemnitor (except as otherwise specifically provided under this Section 8.1) and (iii) any tax based upon or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid measured by net income or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable lawgross receipts.
Appears in 2 contracts
Samples: Master Agreement of Sale (Warnaco Group Inc /De/), Master Agreement of Sale (Warnaco Group Inc /De/)
Indemnities by the Originator. (a) Without limiting any other rights which that the Company Buyer may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Buyer and each of its assigns (including, without limitation, the Purchasers and the Agent), officers, directors, agents and employees and agents (each of the foregoing Persons being individually called a an “Purchase and Sale Indemnified Party”), forthwith on demand, ) from and against any and all damages, losses, claims, judgmentsstamp duty, liabilities sales, excise, registration and related costs other taxes (including any penalties, additions, fines, surcharges or interest relating thereto), liabilities, reasonable costs, expenses and expensesfor all other amounts payable, including reasonable attorneys’ legal counsel fees (which legal counsel may be employees of the Buyer or any such assign) and disbursements (all of the foregoing being collectively called referred to as “Purchase and Sale Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of (A) this Deed or the failure acquisition, either directly or indirectly, by the Buyer of an interest in the Originator Receivables or (B) following the occurrence of a declaration pursuant to perform its obligations under this Clause 6.2(a) or an Amortisation Event pursuant to Clause 6.1(d), the Purchase Agreement or the acquisition either directly or indirectly, by any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to (other than the transactions contemplated herein or therein or Buyer) of an interest in the use of proceeds thereof or therefromReceivables, excluding, however, :
(i) Purchase and Sale Indemnified Amounts to the extent resulting a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful wilful misconduct on the part of such Purchase and Sale the Indemnified Party, Party seeking indemnification;
(ii) recourse with respect to any Receivable Indemnified Amounts to the extent the same includes losses in respect of Receivables that such Receivable is are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor Obligor; or
(except as iii) taxes imposed by the jurisdiction in which such Indemnified Party’s principal registered office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterisation, provided, however, that nothing contained in this sentence shall limit the liability of the Originator or limit the recourse of the Buyer to the Originator for amounts otherwise specifically provided to be paid by the Originator under the terms of this AgreementDeed.
(b) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoinggenerality of the foregoing indemnification in Clause 7.1(a) above, the Originator shall indemnify each Purchase and Sale Indemnified Party the Buyer for Purchase and Sale Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to the Originator) relating to or resulting or arising from:
(ai) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any officers of its officersthe Originator) under or in connection with this Agreement any Transaction Document or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, which thereto that shall have been false or incorrect in any respect when made or deemed made;
(cii) the failure by the Originator Originator, to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the Contract related Contractthereto, or the nonconformity non-compliance of any Receivable generated by the Originator or the related Contract included therein with any such applicable law, rule or regulation;
(d) the regulation or any failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by of the Originator free and clear to keep or perform any of any Adverse Claimits obligations, other than an Adverse Claim arising solely as a result of an act of the Companyexpress or implied, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent timeContract;
(fiii) any failure of the Originator to perform its duties, covenants or other obligations in accordance with the provisions of any Transaction Document;
(iv) any products liability, personal injury or damage, suit or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset set-off or defense defence (other than discharge in bankruptcybankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense defence based on such Receivable’s Receivable or the related Contract’s 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 services sale of the merchandise or service related to any such Receivable or the furnishing of or failure to furnish such merchandise or services;
(gvi) the commingling of Collections of Receivables at any time with other funds;
(vii) any product liability claim investigation, litigation or proceeding related to or arising out from any Transaction Document, the transactions contemplated thereby, the use of or in connection with services that are the subject proceeds of any Receivable generated by Purchase Price payment, the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated or any other investigation, litigation or proceeding relating to the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated thereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Amortisation Event described in Clause 6.1(d);
(x) any failure to vest and maintain vested in the Buyer, or to transfer to the Buyer, beneficial title to the Receivables and the Collections and all of the Originator’s right, title and interest in the Related Security associated with the Receivables, in each case, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(xi) any action or omission by the Originator which reduces or impairs the rights of the Buyer with respect to any Related Security connected with Receivable or the value of any such Receivables. If for Receivable; or
(xii) any reason attempt by any Person to void the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party purchase of Receivables by the Buyer under statutory provisions or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid common law or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable lawequitable action.
Appears in 2 contracts
Samples: Receivables Offer Deed (Johnsondiversey Inc), Receivables Offer Deed (Johnsondiversey Holdings Inc)
Indemnities by the Originator. Without limiting any other rights which the Company may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company and each of its assigns, officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”"PURCHASE AND SALE INDEMNIFIED PARTY"), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”"PURCHASE AND SALE INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting fromfollowing:
(a) the transfer by the Originator of an interest in any Receivable or Related Right to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, thereto which shall have been false or incorrect in any material respect when made or deemed made;
(c) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by the Originator and Related Rights free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) the failure of Originator to filefile with respect to itself, or any delay by Originator in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the OriginatorOriginator or Related Rights, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the an Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s Receivables or the related Contract’s Contracts 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 goods or services related to any such Receivable or the furnishing of or failure to furnish such goods or services;
(g) any product liability claim or any other claim involving health or safety issues, arising out of or in connection with goods or services that are the subject of any Receivable generated by the Originator; andReceivable;
(h) any litigation, proceeding or investigation against Originator;
(i) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentencebelow), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase purchase, contribution or ownership of the Receivables generated by the Originator or any Related Security Right connected with any such Receivables; and
(j) any failure of Originator to perform its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document; EXCLUDING, HOWEVER, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of a Purchase and Sale Indemnified Party, (ii) any indemnification which has the effect of recourse for non-payment of the Receivables due to credit reasons to any indemnitor (except as otherwise specifically provided under this SECTION 9.1) and (iii) any tax based upon or measured by net income or gross receipts. If for any reason the indemnification provided above in this Section SECTION 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, Originator shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party as a result of such loss, claim, damage or liability to the maximum extent permitted under applicable law.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Pilgrims Pride Corp)
Indemnities by the Originator. Without limiting any other rights which that the Company Acquirer or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable law, the Originator hereby agrees agrees, subject to the exclusions set forth below, to indemnify the Company and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, Party from and against any and all claims, damages, losses, claims, judgments, liabilities and related costs and expenses, losses and liabilities (including reasonable attorneys’ fees and disbursements legal costs) arising out of, relating to or resulting from any of the following (all of the foregoing being collectively called referred to as “Purchase and Sale Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:):
(a) subject to Section 2.3 hereof, the transfer by failure of any Purchased Loan to meet the Originator Eligibility Criteria as of an interest in any Receivable to any Person other than the Companyits Purchase Date;
(b) subject to Section 2.3 hereof, the breach failure of any representation or warranty or statement made or deemed made by the Originator (or any of its officers) ), under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, which shall Purchase Document to have been false or incorrect in any respect true and correct when made or deemed made;
(c) the failure by the Originator to comply with any applicable law, rule or regulation with respect to the servicing, administration, enforcement or other dealing with any Receivable generated by the Originator Purchased Loans; or the related Contract, or the nonconformity failure of any Receivable generated by the Originator or the related Contract with Purchased Loans to conform to any such applicable law, rule or regulation;
(d) the failure to sell, assign, transfer and convey to the Acquirer ownership in, and to vest in and maintain vested in in, the Company an Acquirer a valid and enforceable first priority, opposable and Published ownership interest in the Receivables generated Purchased Assets (including upon registration by the Originator Acquirer of any Registrable Transfers) free and clear of any Adverse Claim, Claim (other than Permitted Security Interests, Related Security or an Adverse Claim arising solely as a result of an act created by or in favour of the Company, the Issuer Acquirer or the Administrator whether existing at the time Guarantor) including, without limitation, any claim by any Governmental Authority that any part of the purchase Purchased Assets consisting of amounts payable by the related Borrowers constitutes the property of or contribution is otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Receivables or at any time thereafterGovernmental Authority other than a Permitted Security Interest;
(e) the failure to filehave registered or filed in accordance with the provisions hereof, or any delay in filingso doing, financing statements Financing Statements, Registrable Transfers or other similar instruments or documents under the UCC any applicable laws of any applicable jurisdiction or other applicable laws with respect to the Purchased Assets or any Receivables or purported Receivables generated by the Originatorpart thereof, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) failure of the Obligor Originator to the payment of any Receivable perform its covenants, duties or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it obligations in accordance with its terms), the provisions of this Agreement or any other claim resulting from Purchase Document or to perform its covenants, duties or obligations under the services related to any such Receivable or the furnishing of or failure to furnish such servicesPurchased Loans;
(g) any product liability claim arising out of or in connection with services that are the subject of any Receivable generated by the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated failure by the Originator or its assignee to repurchase any Related Security connected with any such Receivables. If for any reason Purchased Loan pursuant to Section 2.3, and the indemnification provided above in this Section 9.1 is unavailable Originator shall pay on demand (without duplication) to a Purchase and Sale each Indemnified Party or is insufficient any and all amounts necessary to hold indemnify such Purchase and Sale Indemnified Party harmlessfrom and against any and all Indemnified Amounts arising out of, then relating to or resulting from, any of the Originatorforegoing provided, severally and for itselfhowever, that the foregoing obligation of indemnification shall contribute not include Indemnified Amounts to the amount paid extent resulting from gross negligence, wilful misconduct or payable by gross or intentional fault on the part of such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable lawParty.
Appears in 1 contract
Samples: Hypothecary Loan Sale Agreement
Indemnities by the Originator. Without limiting any other rights which the Company that any CMSC Indemnified Party may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Buyer and each of its successors, permitted transferees and assigns, and all officers, directors, shareholders, controlling Persons, employees and agents of any of the foregoing (each of the foregoing Persons being individually called Persons, a “Purchase and Sale Indemnified Party”"CMSC INDEMNIFIED PARTY"), forthwith on demand, from and against any and all damages, losses, claimsclaims (whether on account of settlements or otherwise), actions, suits, demands, judgments, liabilities (including penalties), obligations or disbursements of any kind or nature and related costs and expenses, expenses (including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”disbursements) awarded against or incurred by any of them them, arising out of or as a result of the failure any of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out following (all of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:collectively, "CMSC INDEMNIFIED LOSSES"):
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or under any of its officers) under or in connection with this Agreement the Transaction Documents to which it is a party, any Receivables Activity Report or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto (including in its capacity as Servicer) with respect to the Originator or theretothe CMSC Purchased Assets, which shall have having been false untrue or incorrect in any respect when made or deemed to have been made; provided, however, that the Originator's obligation to make a CMSC Noncomplying Asset Adjustment pursuant to Section 4.3(a) with respect to any representation made in Section
6.1(1) as to Eligible Receivables having been incorrect when made shall be the only remedy available to the Buyer or its assignees relating to such incorrect representation;
(cb) the failure by the Originator to comply with any material applicable law, rule or regulation applicable to the Originator with respect to any Receivable generated by the Originator CMSC Purchased Asset or the related Contract, or the nonconformity any failure of any Receivable generated by the Originator or the related Contract a CMSC Purchased Asset to comply with any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by the Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely regulation as a result of an act of the Company, the Issuer or the Administrator whether existing at the time date of the purchase or contribution sale of such Receivables or at any time thereafterCMSC Purchased Asset hereunder;
(e) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the services related to any such Receivable or the furnishing of or failure to furnish such services;
(g) any product liability claim arising out of or in connection with services that are the subject of any Receivable generated by the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law.
Appears in 1 contract
Samples: Purchase Agreement (PHH Corp)
Indemnities by the Originator. Without limiting any other rights which that the Company Purchaser may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, Purchaser from and against any and all damages, losses, claims, judgments, losses and liabilities and related costs and expenses, (including reasonable attorneys’ fees and disbursements ' fees) (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”referred to as "INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under resulting from this Agreement or in respect of any other Transaction Document, Receivable or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefromany Charge Account Agreement, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Partythe Purchaser; PROVIDED, HOWEVER, that, except as expressly provided in subparagraph (iia) recourse of this SECTION 7.01, in no event will the Originator have any indemnity or other obligation hereunder or otherwise with respect to any loss suffered in respect of any Eligible Receivable transferred to the extent Purchaser in accordance with this Agreement, the parties hereby acknowledging that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receiptstransfers are to be without recourse. Without limiting or being limited by the foregoingforegoing but subject to the proviso in the immediately proceeding sentence, the Originator shall pay on demand to the Purchaser any and all amounts necessary to indemnify each Purchase the Purchaser from and Sale Indemnified Party for Purchase against any and Sale all Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of reliance on any representation or warranty or statement made or deemed made by the Originator (or any of its officers) under or in connection with this Agreement or in any other Transaction Document, or any written information or report certificate delivered by the Originator pursuant hereto or theretothat, which in either case, shall have been false or incorrect in any material respect when made or deemed made;
(cb) the failure by the Originator to comply with any applicable law, rule or regulation of any governmental authority with respect to any Receivable generated by the Originator or the related ContractCharge Account Agreement of the Originator, or the nonconformity of any Receivable generated by the Originator or the related Contract Charge Account Agreement of the Originator with any such applicable law, rule or regulation;
(dc) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by the Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) the failure to filehave filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC Uniform Commercial Code of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by of the Originator, whether at the time of any purchase or contribution or at any subsequent time;
(fd) any dispute, claim, offset or defense (other than discharge in bankruptcybankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by of the Originator (including, without limitation, a defense based on such Receivable’s Receivable or the related Contract’s Charge Account Agreement not being a legal, valid and binding obligation of such Obligor enforceable against it such Obligor in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to any such Receivable or the furnishing of or failure to furnish such merchandise or services;
(ge) any product failure of the Originator to perform its duties or obligations under this Agreement or the applicable Charge Account Agreement;
(f) any products liability claim arising out of or in connection with merchandise, insurance or services that are the subject of any Receivable generated by charge pursuant to any Charge Account Agreement of the Originator;
(g) the commingling of Collections of Receivables at any time with other funds of the Originator; andor
(h) any tax investigation, litigation or governmental fee proceeding related to this Agreement or charge (other than in respect of any tax excluded pursuant Receivable or any Charge Account Agreement of the Originator. Notwithstanding the foregoing, the Originator shall in no circumstances be required to clause (iii) indemnify the Purchaser for any Indemnified Amounts that result from any delay in the proviso to the preceding sentence), all interest and penalties thereon collection of any Receivables or any default by an Obligor with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or to any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Federated Department Stores Inc /De/)
Indemnities by the Originator. Without limiting any other rights which that the Company or any of its Affiliates, employees, officers, directors, agents, counsel, successors, transferees or assigns (each, a “Purchase and Sale Indemnified Party”) may have hereunder or under applicable law, the each Originator hereby agrees to indemnify the Company and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith Party (on demand, an after tax basis) from and against any and all claims, damages, losses, claims, judgments, liabilities and related costs and expenses, costs, losses and liabilities (including reasonable attorneys’ fees and disbursements Attorney Costs) (all of the foregoing being collectively called referred to as “Purchase and Sale Indemnified Amounts”) awarded against or incurred by any of them arising out of of, or as a result of the failure of the Originator to perform its obligations under resulting from or in connection with, this Agreement or any of the other Transaction Document, Documents (whether directly or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to indirectly) or the transactions contemplated herein or therein or thereby, the use of proceeds thereof thereof, the commingling of funds (whether or therefromnot permitted hereunder), the Purchased Assets (including the merchandise and sale of merchandise giving rise to Receivables), the ownership of or any interest in or in respect of any Receivable, Related Security, Contract or other Purchased Assets, excluding, however, : (ia) Purchase and Sale Indemnified Amounts to the extent resulting a final judgment of a court of competent jurisdiction holds they result from the gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified PartyParty or its officers, directors, agents or counsel, (iib) any indemnification which has the effect of recourse with respect to any Receivable indemnitor for the uncollectibility of Receivables due to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related applicable Obligor thereof, (c) Purchase and Sale Indemnified Amounts relating to the failure of any Originator to comply with the Assignment of Claims Act, except as to the extent the Servicer or any Originator shall have failed to take all action required pursuant to Section 7.3 hereof, or (d) overall net income taxes (to the extent the computation of such taxes are consistent with the Intended Tax Characterization) or franchise taxes imposed on such Purchase and Sale Indemnified Party by the jurisdiction under the laws of which such Purchase and Sale Indemnified Party is organized or any political subdivision thereof.; provided, however, that nothing contained in this Sentence shall limit the liability of the Originators, or limit the recourse of the Company to the Originators, for any amounts otherwise specifically provided to be paid by the Originators hereunder or under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receiptsof the other Transaction Documents. Without limiting or being limited by the foregoing, and subject to the Originator exclusions set forth in the preceding sentence, the Originators shall indemnify pay on demand (which demand shall be accompanied by documentation of the Purchase and Sale Indemnified Amounts, in reasonable detail) to each Purchase and Sale Indemnified Party for any and all amounts necessary to indemnify such Purchase and Sale Indemnified Party from and against any and all Purchase and Sale Indemnified Amounts relating to or resulting fromfrom any of the following:
(ai) the transfer failure of any Receivable sold hereunder to be an Eligible Receivable on the date of the sale thereof pursuant hereto, the failure of any information contained in Purchase Report or Monthly Settlement Statement and provided by or on behalf of the Originator Originators or any of an interest their Affiliates to be true and correct in any Receivable material respect, or the failure of any other information provided to any Person Purchase and Sale Indemnified Party with respect to the Purchased Assets, this Agreement, the other than Transaction Documents or the Company;transactions contemplated hereby or thereby, to be true and correct in any material respect and not to be materially misleading as of the date made or deemed made,
(bii) the breach failure of any representation representation, warranty or warranty statement made or deemed made by the Originator Originators (or any of its the foregoing’s respective officers, directors, employees or agents) under or in connection with this Agreement Agreement, any of the other Transaction Documents or any other Transaction Document, certificate or written disclosure delivered thereby to any written information or report delivered by the Originator pursuant hereto or thereto, which shall Purchase and Sale Indemnified Party to have been false (x) true and correct in any material respect, if and to the extent such representation, warranty or incorrect statement is not qualified by materiality or Material Adverse Effect, otherwise, in any respect when and (y) not materially misleading, in each case, as of the date made or deemed made;,
(ciii) the failure by the Originator Originators or any of their Affiliates to comply in any material respect with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Receivable generated by the Originator or the related Contract with or any other Purchased Assets, or the failure of any Receivable or the related Contract or any other Purchased Assets to conform in any material respect to any such applicable law, rule or regulation;,
(div) the failure to vest and maintain vested in the Company an a valid and enforceable: (A) perfected ownership interest in the Receivables generated concerned hereunder by the Originator Originators free and clear of any Adverse ClaimClaims, other than an Adverse Claim Claims arising solely as a result of an act of the Company, the Issuer Company or the Administrator Agent, whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;, or (B) first priority perfected security interest in the other Purchased Assets, free and clear of any Adverse Claim,
(ev) 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 with respect to any Receivables or purported Receivables generated by the OriginatorPurchased Assets, whether at the time of any purchase or contribution reinvestment or at any subsequent time;,
(fvi) any dispute, claim, offset or defense (other than discharge in bankruptcybankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, including a defense based on such Receivable’s Receivable or the related Contract’s 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 goods or services related to any such Receivable or the furnishing of or failure to furnish such services;goods or services or relating to collection activities with respect to such Receivable (if such collection activities were performed by the Originators or any of their Affiliates acting as Servicer or by any agent or independent contractor retained by the Originators or any of their Affiliates),
(gvii) any product failure of any Originator (or, to the extent it is AAR or an Affiliate of AAR, the Servicer) to perform in any material respect its duties or obligations in accordance with the provisions hereof or under the Contracts,
(viii) any products liability claim or other claim, investigation, litigation or proceeding arising out of or in connection with merchandise, insurance or services that are the subject of any Receivable generated by the Originator; andContract or Receivable,
(hix) the commingling of Collections of Receivables at any time with other funds by any Originator or, to the extent it is AAR or an Affiliate of AAR, the Servicer (or any delegee thereof) at any time with other funds,
(x) the use of proceeds of purchases or reinvestments,
(xi) the failure to pay when due any taxes, including sales taxes or excise taxes payable in connection with the Receivables; or
(xii) any tax or governmental fee or charge (other than attempt by any tax excluded pursuant Person to clause (iii) in void the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated sale by the Originator to the Company of any Receivables under any statutory provision or common-law or equitable action, including any Related Security connected with provision of the Bankruptcy Reform Act of 1978 (11 U.S.C. §§ 101 et seq.) as amended;
(xiii) any such Receivables. If for repayment by any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party of any amount previously distributed in reduction of Capital, Discount or is insufficient to hold any other amounts owing hereunder which such Purchase and Sale Indemnified Party harmlessbelieves in good faith is required to be made (other than in respect of a voidable preference of an Obligor; however, then whether or not such amount is indemnifiable hereunder, until such amount is paid, the Originatoroutstanding amount of Capital, severally and for itselfDiscount or other amount, as applicable, shall contribute be increased by the amount previously applied and required to have been repaid, as if such payment had not been made);
(xiv) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of purchases by the Originators, or the ownership of any Receivable, Related Security, Contract or other Purchased Assets;
(xv) the failure of any Lock-Box Bank to remit any amounts held in the Lock-Boxes and/or the Lock-Box Accounts pursuant to the amount paid instructions of the Servicer, the Agent, or payable the Company (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Lock-Box Letter) whether by such reason of the exercise of set-off rights or otherwise;
(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 any Originator to qualify to do business or file any notice of business activity report or any similar report;
(xvii) any action taken by any Originator or the Servicer (if AAR or any Affiliate or designee thereof) in the enforcement or collection of any Receivable;
(xviii) any inability to exercise any non-assignable right or remedy under a Contract relating to a Receivable sold by an Originator to the Company, which Purchase and Sale Indemnified Party Loss could reasonably foreseeably have been avoided if such right or remedy had been assignable by such Originator, or
(xix) any failure by any Originator to maintain in full force and effect with respect to at least 90% of Outstanding Balance of any Permitted Foreign Receivables one or more Qualified Policies insuring payment of such amount in the event of the bankruptcy, insolvency or other failure to pay of or by the Obligors thereon; or any failure by any Originator or the Servicer to timely and properly file and/or diligently pursue any claim under any such insurance policy. Notwithstanding anything to the maximum extent permitted under applicable lawcontrary in this Agreement, for purposes of this Section, any representations, warranties and covenants contained in this Agreement which are qualified by materiality, or are otherwise limited to, events, circumstances, conditions or changes that are likely to or would or could reasonably be expected to give rise to a material liability or Material Adverse Effect, shall be deemed not to be so limited.
Appears in 1 contract
Indemnities by the Originator. Without limiting any other rights which the Company may have hereunder or under applicable lawApplicable Law, the Originator hereby agrees to indemnify and hold harmless, the Company and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on within thirty (30) Business Days following demand, from and against any and all damages, losses, claims, judgments, liabilities and related liabilities, penalties, Taxes (other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim), reasonable costs and expenses, (including all reasonable attorneys’ fees and documented out-of-pocket fees, costs, expenses and disbursements of legal counsel) (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, Document or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) excluding only any Purchase and Sale Indemnified Amounts to the extent resulting extent, (i) a final judgment of a court of competent jurisdiction holds that such Purchase and Sale Indemnified Amounts resulted from gross a breach of law, breach of this Agreement, bad faith, negligence or willful misconduct on of the part Purchase and Sale Indemnified Party seeking indemnification, (ii) due to the credit risk of the Obligor and for which reimbursement would constitute recourse to the Originator for uncollectible Receivables or (iii) such Purchase and Sale Indemnified Amounts include (a) Taxes imposed or based on, or measured by, the gross or net income or receipts of such Purchase and Sale Indemnified Party, franchise Taxes or branch profits Taxes or (iib) withholding Taxes imposed on amounts payable to or for the account of the Purchase and Sale Indemnified Party pursuant to a law in effect on the date hereof; provided, that nothing contained in this sentence shall limit the liability of the Originator or limit the recourse with respect to of any Receivable Purchase and Sale Indemnified Party to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as Originator for any amounts otherwise specifically provided under this Agreementto be paid by the Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (i), (ii) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting of the foregoingprevious sentence, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made or deemed made by the Originator (or any officer of its officersthe Originator) under or in connection with this Agreement or any of the other Transaction DocumentDocuments, or any written information or report delivered by or on behalf of the Originator pursuant hereto or thereto, thereto which shall have been false untrue or incorrect in any respect when made or deemed mademade or delivered;
(cb) the failure by the Originator to comply with the terms of or its covenants, obligations and agreements contained in this Agreement or any applicable law, rule other Transaction Document or regulation with any Applicable Law with respect to any Pool Receivable generated by the Originator or the related Contract, ; or the nonconformity failure of any Pool Receivable generated by the Originator or the related Contract with to conform to any such applicable law, rule or regulationApplicable Law;
(c) the failure of any Receivable sold by the Originator included in the calculation of Net Eligible Pool Balance as an Eligible Receivable to be an Eligible Receivable;
(d) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated transfer by the Originator of any interest in any Pool Receivable or Related Right, other than the transfer of any Pool Receivable and Related Rights to the Company pursuant to this Agreement and the grant of a security interest to the Company pursuant to this Agreement;
(e) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) originated by the Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(ef) 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 Applicable Laws with respect to any Pool Receivable or the Related Rights;
(g) any suit or claim related to the Pool Receivables originated by the Originator (including any products liability or purported Receivables generated environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable originated by the Originator, whether at the time of any purchase or contribution or at any subsequent time);
(fh) any dispute, claim, offset or defense (other than discharge in bankruptcybankruptcy of the Obligor) of the Obligor to the payment of any Pool Receivable or purported Receivable generated by the Originator (including, without limitation, including a defense based on such Receivable’s Pool Receivable or the related Contract’s 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 any such Pool Receivable or the furnishing of or failure to furnish any such servicesgoods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(gi) except to the extent permitted by the Transaction Documents, the commingling of Collections of Pool Receivables at any time with other funds;
(j) any product liability claim arising out failure of the Originator to timely comply with the Credit and Collection Policy in regard to each Pool Receivable;
(k) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or in connection with services that are the subject respect of any Pool Receivable generated by the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with Rights;
(l) any such Receivables. If for claim brought by any reason the indemnification provided above in this Section 9.1 is unavailable to Person other than a Purchase and Sale Indemnified Party arising from any activity by the Originator in servicing, administering or is insufficient collecting any Pool Receivable; or
(m) the failure by the Originator to hold such Purchase and Sale Indemnified Party harmlesspay when due any material taxes, then the Originatorincluding, severally and for itselfwithout limitation, shall contribute to the amount paid material sales, excise or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable lawpersonal property taxes.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Synchronoss Technologies Inc)
Indemnities by the Originator. Without limiting any other rights which the ----------------------------- Company may have hereunder or under applicable law, the Originator Originator, severally and for itself alone, hereby agrees to indemnify the Company and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and "Sale Indemnified Party”"), forthwith on demand, from and ---------------------- against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “Purchase and "Sale Indemnified Amounts”") awarded ------------------------ against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale --------- ------- Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) any indemnification which has the effect of recourse with respect for non-payment of the Receivables to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor indemnitor (except as otherwise specifically provided under this AgreementSection 9.1) ----------- and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(c) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by the Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s 's or the related Contract’s 's not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the services related to any such Receivable or the furnishing of or failure to furnish such services;
(g) any product liability claim arising out of or in connection with services that are the subject of any Receivable generated by the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all ------------ interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section ------- 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and --- Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law.
Appears in 1 contract
Samples: Sale Agreement (KPMG Consulting Inc)
Indemnities by the Originator. Without limiting any other rights which the Company Buyer may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Buyer and each of its officersassigns and transferees (each, directors, employees and agents (each of the foregoing Persons being individually called a an “Purchase and Sale Indemnified Party”), forthwith on demand, ) from and against any and all claims, damages, lossescosts, claims, judgments, liabilities and related costs and expenses, losses and liabilities (including reasonable attorneys’ fees and disbursements fees) (all of the foregoing being collectively called referred to as “Purchase and Sale Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under resulting from this Agreement or the ownership of Transferred Receivables or in respect of any other Transaction Document, Transferred Receivable or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefromany Contract, excluding, however, (ia) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (iib) recourse with respect to any Receivable for Receivables that are uncollectible solely due to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy relevant Obligor’s unwillingness or lack of creditworthiness of the related Obligor financial inability to pay or (except as otherwise specifically provided under this Agreement) and (iiic) any tax based upon income taxes or measured franchise taxes imposed on such Indemnified Party by net income propertythe jurisdiction under the laws of which such Indemnified Party is organized or any political subdivision thereof, arising out of or gross receiptsas a result of this Agreement or the ownership of Transferred Receivables or in respect of any Transferred Receivable or any Contract. Without limiting or being limited by the foregoingforegoing (but subject to the aforementioned exclusions), the Originator shall indemnify pay on demand to each Purchase and Sale Indemnified Party for Purchase any and Sale all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts relating to or resulting fromfrom any of the following:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty or statement made or deemed made by the Originator (or any of its officers) under or in connection with this Agreement or any Agreement, and the other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, which Documents that shall have been false or incorrect in any material respect when made or deemed made;
(cb) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Transferred Receivable generated by the Originator or the related Contract, ; or the nonconformity failure of any Transferred Receivable generated by the Originator or the related Contract with to conform to any such applicable law, rule or regulation;
(dc) the failure to vest and maintain vested in the Company an Buyer absolute ownership interest of the Transferred Receivables that are, or that purport to be, the subject of a purchase or contribution under this Agreement and the Related Security and Collections in the Receivables generated by the Originator respect thereof free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(ed) the failure of the Originator 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 with respect to any Receivables that are, or purported Receivables generated by that purport to be, the Originatorsubject of a purchase or contribution under this Agreement and the Related Security and Collections in respect thereof, whether at the time of any purchase or contribution or at any subsequent time, in each case to the extent required hereunder;
(fe) without double counting for any Dilution for which a repurchase has been made under Section 2.05 of this Agreement, any dispute, claim, offset or defense (other than discharge in bankruptcybankruptcy of the Obligor or any other credit related losses) of the Obligor to the payment of any Transferred Receivable that is, or purported Receivable generated by that purports to be, the Originator subject of a purchase or contribution under this Agreement (including, without limitation, a defense based on such Receivable’s Transferred Receivable or the related Contract’s 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 services related to any such Transferred Receivable or the furnishing of or failure to furnish such servicesgoods or services or relating to collection activities with respect to such Transferred Receivable (to the extent such collection activities were performed by the Originator or any of its Affiliates acting as Collection Agent);
(f) any failure of the Originator to perform its duties or obligations in accordance with the provisions hereof or to perform its duties or obligations under any Contract related to a Transferred Receivable;
(g) any product products liability or other claim (including any claim for unpaid sales, excise or other taxes) arising out of or in connection with goods or services that which are the subject of any Receivable generated by the Originator; andContract;
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses commingling of counsel in defending against the same, which may arise by reason Collections of the purchase or ownership of the Transferred Receivables generated by the Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then designee of the Originator, severally and for itselfas Collection Agent or otherwise, shall contribute at any time with other funds of the Originator or an Affiliate of the Originator or the failure of Collections to be deposited into a Collection Account or the amount paid Controlled Account;
(i) any investigation, litigation or payable by such Purchase and Sale Indemnified Party proceeding related to this Agreement or the maximum extent permitted under applicable law.ownership of Transferred Receivables, the Related Security, or Collections with respect thereto or in respect of any Transferred Receivable, Related Security or Contract;
Appears in 1 contract
Samples: Purchase and Contribution Agreement (United Rentals Inc /De)
Indemnities by the Originator. Without limiting any ----------------------------- other rights which the Company that NFRRC may have hereunder or under applicable law, the Originator NFC hereby agrees to indemnify the Company NFRRC and each of its officers, directors, agents and employees and agents its assigns under the Further Transfer and Servicing Agreement (each of the foregoing Persons being individually called a “Purchase and Sale an "Indemnified Party”), forthwith on demand, ") from and against any and all damages, losses, claims, judgments----------------- taxes, liabilities liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “Purchase and Sale referred to as "Indemnified Amounts”") awarded against or incurred ------------------- by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Documentthe acquisition, either directly or arising out indirectly, by NFRRC or its assigns under the Further Transfer and Servicing Agreements of an interest in the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefromDesignated Receivables, excluding, however, :
(ia) Purchase and Sale Indemnified Amounts to the extent resulting that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the extent the same includes losses in respect of Designated Receivables that are uncollectible; or
(c) taxes imposed by the jurisdiction in which such Purchase and Sale Indemnified Party's principal executive office is located, (ii) recourse with respect to any Receivable on or measured by the overall net income of such Indemnified Party to the extent that the computation of such Receivable taxes is uncollectible on account consistent with the Intended Characterization; provided, however, that -------- ------- nothing contained in this sentence shall limit the liability of insolvency, bankruptcy NFC or lack limit the recourse of creditworthiness of the related Obligor (except as NFRRC to NFC for amounts otherwise specifically provided to be paid by NFC under the terms of this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoinggenerality of the foregoing indemnification, the Originator NFC shall indemnify each Purchase and Sale Indemnified Party NFRRC for Purchase and Sale Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to NFC) relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator NFC (or any officers of its officersNFC) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any written information or report delivered by the Originator NFC pursuant hereto or thereto, which shall have been false or incorrect in any respect when made or deemed made;
(cb) the failure by the Originator NFC to comply with any applicable law, rule rule, order, writ, judgment, award, injunction, decree or regulation with respect to any Designated Receivable generated by the Originator or the Contract related Contractthereto, or the nonconformity of any Designated Receivable generated by the Originator or the related Contract included therein with any such applicable law, rule or regulationregulation or any failure of the NFC to keep or perform any of its obligations, express or implied, with respect to any Contract;
(c) any failure of NFC to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(d) any products liability, personal injury or damage suit or similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract;
(e) any dispute, claim, counterclaim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Designated Receivable (including, without limitation, a defense based on such Designated Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Designated Receivable or the furnishing or failure to furnish such merchandise or services;
(f) the commingling of Collections of Designated Receivables at any time with other funds;
(g) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of the sale of Designated Receivables, the ownership of the Designated Receivables or any other investigation, litigation or proceeding relating to NFC in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(h) any inability to litigate any claim against any Obligor in respect of any Designated Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(i) any failure of NFC to acquire and maintain legal and equitable title to, and ownership of any Designated Receivable and the Related Security free and clear of any Adverse Claim (other than as created hereunder); or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action (other than as a result of the actions or inactions of NFRRC or a Subsequent Transferee);
(j) any failure to vest and maintain vested in NFRRC, or to transfer to NFRRC, legal and equitable title to, and ownership of, the Company an ownership interest in Designated Receivables and the Receivables generated by the Originator Related Security free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(ek) 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 with respect to any Receivables or purported Receivables generated by Designated Receivable and the Originator, whether at the time of any purchase or contribution or at any subsequent timeRelated Security;
(fl) any dispute, claim, offset action or defense (other than discharge in bankruptcy) omission by NFC which reduces or impairs the rights of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance NFRRC with its terms), or any other claim resulting from the services related respect to any such Designated Receivable or the furnishing of or failure to furnish such services;
(g) any product liability claim arising out of or in connection with services that are the subject value of any Receivable generated by the Originatorsuch Designated Receivable; and
(hm) any tax or governmental fee or charge (other than attempt by any tax excluded pursuant Person to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of void the purchase hereunder under statutory provisions or ownership of the Receivables generated by the Originator common law or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law.equitable action; and
Appears in 1 contract
Samples: Receivables Sale Agreement (Navistar Financial Retail Receivables Corporation)
Indemnities by the Originator. Without limiting any other rights which the Company may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “"Purchase and Sale Indemnified Party”"), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “"Purchase and Sale Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction DocumentAgreement, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof hereof or therefromherefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) any indemnification which has the effect of recourse with respect for non-payment of the Originator Accounts to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor indemnitor (except as otherwise specifically provided under this AgreementSection 9.1) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify indemnifies each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable Originator Account to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(c) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable Originator Account generated by the Originator or the related Contract, or the nonconformity of any Receivable Originator Account generated by the Originator or the related Contract with any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by the Originator Accounts free and clear of any Adverse Claimlien, other than an Adverse Claim a lien arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables Originator Accounts or at any time thereafter;
(e) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables Originator Accounts or purported Receivables generated by the OriginatorOriginator Accounts, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor account debtor to the payment of any Receivable Originator Account or purported Receivable generated by the Originator Account (including, without limitation, a defense based on such Receivable’s Originator Account's or the related Contract’s 's not being a legal, valid and binding obligation of such Obligor account debtor enforceable against it in accordance with its terms), or any other claim resulting from the services related to any such Receivable Originator Account or the furnishing of or failure to furnish such services;
(g) any product liability claim arising out of or in connection with services that are the subject of any Receivable generated by the OriginatorOriginator Account; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator Accounts or any Related Security connected with any such ReceivablesOriginator Accounts. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, Originator shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Werner Holding Co Inc /Pa/)
Indemnities by the Originator. Without limiting any other rights which the Company Originator Indemnified Parties may have hereunder or under applicable lawApplicable Law, the Originator hereby agrees to indemnify the Company SPV and each of its successors, transferees and assigns and all officers, directors, employees shareholders, controlling persons, employees, counsel and other agents (each of any of the foregoing Persons being individually called a (collectively, “Purchase and Sale Originator Indemnified PartyParties”), forthwith on demand, ) from and against any and all damages, losses, claims, judgmentsliabilities, liabilities and related costs and expenses, including reasonable attorneys’ fees (which such attorneys may be employees of any Originator Indemnified Party) and disbursements (all of the foregoing being collectively called referred to as “Purchase and Sale Originator Indemnified Amounts”) awarded against or incurred by any of them the Originator Indemnified Parties in any action or proceeding between the Originator and any of the Originator Indemnified Parties or between any of the Originator Indemnified Parties and any third party relating to or resulting from the following:
(a) any representation or warranty made by the Originator or any officers of the Originator under or in connection with this Agreement, any of the other Transaction Documents, or any other information or report delivered by the Originator or any officers of the Originator pursuant hereto, which shall have been false or incorrect in any material respect when made or deemed made;
(b) the failure by the Originator to comply with any Applicable Law with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such Applicable Law;
(c) the failure to vest and maintain vested in the SPV a valid perfected first priority ownership interest in favor of the SPV in the Sold Assets free and clear of any Adverse Claim (other than Permitted Adverse Claims); or in the event that the conveyance by the Originator to the SPV of the Sold Assets hereunder were construed not to be a sale, the failure to grant to the SPV (and its assignee) a valid perfected first priority security interest in all the Receivables, the Related Security, the related Equipment and the proceeds relating thereto, free and clear of all Adverse Claims (other than the Permitted Adverse Claims);
(d) the failure to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents required to be filed by the Originator under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any of the Sold Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy) of an Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) arising as a result of a breach by the Originator of its obligations under the Receivables;
(f) 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 relating to or which are the subject of any Receivable or related Contract;
(g) the transfer to the SPV of an interest in any Receivable other than an Eligible Receivable (as of the related Purchase Date) for which the SPV has not received a Repurchase Amount from the Originator;
(h) the failure by the Originator to comply with any term, provision or covenant applicable to the Originator contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its duties or obligations under the Receivables or related Contracts;
(i) any commingling by the Originator of Collections of Receivables at any time with other funds;
(j) the use of proceeds of purchases by the Originator, or the ownership of the Sold Assets;
(k) failure of any Lock-Box Bank, the Intercreditor Master Agent, or the Originator to remit any Collections held in the Lock-Box Accounts or any related lock-boxes or to this Collection Account, whether by reason of the exercise of set-off rights or otherwise; or
(l) 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 Originator to perform its obligations under this Agreement qualify to do business or file any notice of business activity report or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, similar report; excluding, however, (i) Purchase and Sale Originator Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Originator Indemnified Party, Party or (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, which shall have been false or incorrect in any respect when made or deemed made;
(cSecond Tier Agreement) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an ownership interest in the for uncollectible Receivables generated by the Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the services related to any such Receivable or the furnishing of or failure to furnish such services;
(g) any product liability claim arising out of or in connection with services that are the subject any credit default of any Receivable generated by the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable lawan Obligor.
Appears in 1 contract
Indemnities by the Originator. Without limiting any other rights which the Company may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Company, the Purchasers, the Agent, the Insurer and each of its their respective assigns, officers, directors, employees and agents (each of the foregoing Persons being individually called a “"Purchase and Sale Indemnified Party”"), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “"Purchase and Sale Indemnified Amounts”) "), regardless of whether any such Purchase and Sale Indemnified Amount is the result of a Purchase and Sale Indemnified Party's negligence, strict liability or other acts or omissions of a Purchase and Sale Indemnified Party, awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting fromfollowing:
(a) the transfer by the Originator of an interest in any Receivable or Related Right to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, thereto (including any information contained in a Purchase Report) which shall have been false false, incorrect or incorrect misleading in any material respect when made, deemed made or deemed madedelivered;
(c) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an a perfected ownership interest in the Receivables generated by the Originator and Related Rights free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) the failure of the Originator to filefile with respect to itself, or any delay by the Originator in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the OriginatorOriginator or Related Rights, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s Receivables or the related Contract’s Contracts not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from or relating to the services related transaction giving rise to any such Receivable or relating to collection activities with respect to any Receivable (if such collection activities were performed by the furnishing Originator or any of its Affiliates acting as Servicer or failure to furnish such servicesby any agent or independent contractor retained by the Originator or any of its Affiliates);
(g) any product products liability claim or other claim, investigation, litigation or proceeding arising out of or in connection with goods, insurance or services that are secure or relate to any Receivable;
(h) any litigation, proceeding or investigation against the subject Originator or in respect of any Receivable generated by the Originator; andor Related Right;
(hi) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentencebelow), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase purchase, contribution or ownership of the Receivables generated by the Originator or any Related Security Right connected with any such Receivables;
(j) any failure of the Originator to perform its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(k) the commingling of any Collections at any time with other funds;
(l) the failure by the Originator to pay when due any taxes payable by it, including without limitation, franchise taxes and sales, excise or personal property taxes payable in connection with the Receivables or any Related Right connected with any such Receivables; and
(m) the failure by the Originator to be duly qualified to do business, to be in good standing or to have filed appropriate fictitious or assumed name registration documents in any jurisdiction; excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of a Purchase and Sale Indemnified Party, (ii) any indemnification which has the effect of recourse for non-payment of the Receivables due to credit reasons to the Originator (except as otherwise specifically provided under this Section 9.1) and (iii) any tax based upon or measured by net income or gross receipts. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, Originator shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party as a result of such loss, claim, damage or liability to the maximum extent permitted under applicable law.. Promptly after receipt by a Purchase and Sale Indemnified Party under this Article IX of notice of any claim or the commencement of any action arising out of or as a result of any of paragraphs (a) through (m) above, the Purchase and Sale Indemnified Party shall, if a claim in respect thereof is to be made against the Originator under this Article IX, notify the Originator in writing of the claim or the commencement of that action; provided, however, that the failure to notify the Originator shall not relieve it from any liability which it may have under this Article IX except to the extent it has been materially prejudiced by such failure and, provided, further, that the failure to
Appears in 1 contract
Indemnities by the Originator. Without limiting any other rights which the Company Buyer may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Buyer and each of its officersassigns and transferees (each, directors, employees and agents (each of the foregoing Persons being individually called a an “Purchase and Sale Indemnified Party”), forthwith on demand, ) from and against any and all claims, damages, lossescosts, claims, judgments, liabilities and related costs and expenses, losses and liabilities (including reasonable and documented attorneys’ fees and disbursements fees) (all of the foregoing being collectively called referred to as “Purchase and Sale Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under resulting from this Agreement or the ownership of Transferred Receivables or in respect of any other Transaction Document, Transferred Receivable or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefromany Contract, excluding, however, (ia) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (iib) recourse with respect to any Receivable for Receivables that are uncollectible solely due to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy relevant Obligor’s unwillingness or lack of creditworthiness of the related Obligor financial inability to pay or (except as otherwise specifically provided under this Agreement) and (iiic) any tax based upon income taxes or measured franchise taxes imposed on such Indemnified Party by net income propertythe jurisdiction under the laws of which such Indemnified Party is organized or any political subdivision thereof, arising out of or gross receiptsas a result of this Agreement or the ownership of Transferred Receivables or in respect of any Transferred Receivable or any Contract. Without limiting or being limited by the foregoingforegoing (but subject to the aforementioned exclusions), the Originator shall indemnify pay on demand to each Purchase and Sale Indemnified Party for Purchase any and Sale all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts relating to or resulting fromfrom any of the following:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty or statement made or deemed made by the Originator (or any of its officers) under or in connection with this Agreement or any Agreement, and the other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, which Documents that shall have been false or incorrect in any material respect when made or deemed made;
(cb) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Transferred Receivable generated by the Originator or the related Contract, ; or the nonconformity failure of any Transferred Receivable generated by the Originator or the related Contract with to conform to any such applicable law, rule or regulation;
(dc) the failure to vest and maintain vested in the Company an Buyer absolute ownership interest of the Transferred Receivables that are, or that purport to be, the subject of a purchase or contribution under this Agreement and the Related Security and Collections in the Receivables generated by the Originator respect thereof free and clear of any Adverse Claim, ; (other than an any Adverse Claim arising solely as a result of an act of the Company, the Issuer under or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at permitted by any time thereafterTransaction Document);
(ed) the failure of the Originator 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 with respect to any Receivables that are, or purported Receivables generated by that purport to be, the Originatorsubject of a purchase or contribution under this Agreement and the Related Security and Collections in respect thereof, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor each case to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the services related to any such Receivable or the furnishing of or failure to furnish such servicesextent required hereunder;
(g) any product liability claim arising out of or in connection with services that are the subject of any Receivable generated by the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law.
Appears in 1 contract
Indemnities by the Originator. Without limiting any other rights which the Company that NFRRC may have hereunder or under applicable law, the Originator NFC hereby agrees to indemnify the Company NFRRC and each of its officers, directors, agents and employees and agents its assigns under the Further Transfer and Servicing Agreement (each of the foregoing Persons being individually called a an “Purchase and Sale Indemnified Party”), forthwith on demand, ) from and against any and all damages, losses, claims, judgmentstaxes, liabilities liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called referred to as “Purchase and Sale Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Documentthe acquisition, either directly or arising out indirectly, by NFRRC or its assigns under the Further Transfer and Servicing Agreements of an interest in the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefromDesignated Receivables, excluding, however, :
(ia) Purchase and Sale Indemnified Amounts to the extent resulting that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the extent the same includes losses in respect of Designated Receivables that are uncollectible; or
(c) taxes imposed by the jurisdiction in which such Purchase and Sale Indemnified Party’s principal executive office is located, (ii) recourse with respect to any Receivable on or measured by the overall net income of such Indemnified Party to the extent that the computation of such Receivable taxes is uncollectible on account consistent with the Intended Characterization; provided, however, that nothing contained in this sentence shall limit the liability of insolvency, bankruptcy NFC or lack limit the recourse of creditworthiness of the related Obligor (except as NFRRC to NFC for amounts otherwise specifically provided to be paid by NFC under the terms of this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoinggenerality of the foregoing indemnification, the Originator NFC shall indemnify each Purchase and Sale Indemnified Party NFRRC for Purchase and Sale Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to NFC) relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator NFC (or any officers of its officersNFC) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any written information or report delivered by the Originator NFC pursuant hereto or thereto, which shall have been false or incorrect in any respect when made or deemed made;
(cb) the failure by the Originator NFC to comply with any applicable law, rule rule, order, writ, judgment, award, injunction, decree or regulation with respect to any Designated Receivable generated by the Originator or the Contract related Contractthereto, or the nonconformity of any Designated Receivable generated by the Originator or the related Contract included therein with any such applicable law, rule or regulationregulation or any failure of the NFC to keep or perform any of its obligations, express or implied, with respect to any Contract;
(c) any failure of NFC to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(d) any products liability, personal injury or damage suit or similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract;
(e) any dispute, claim, counterclaim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Designated Receivable (including, without limitation, a defense based on such Designated Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Designated Receivable or the furnishing or failure to furnish such merchandise or services;
(f) the commingling of Collections of Designated Receivables at any time with other funds;
(g) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of the sale of Designated Receivables, the ownership of the Designated Receivables or any other investigation, litigation or proceeding relating to NFC in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(h) any inability to litigate any claim against any Obligor in respect of any Designated Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(i) any failure of NFC to acquire and maintain legal and equitable title to, and ownership of any Designated Receivable and the Related Security free and clear of any Adverse Claim (other than as created hereunder); or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action (other than as a result of the actions or inactions of NFRRC or a Subsequent Transferee);
(j) any failure to vest and maintain vested in NFRRC, or to transfer to NFRRC, legal and equitable title to, and ownership of, the Company an ownership interest in Designated Receivables and the Receivables generated by the Originator Related Security free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(ek) 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 with respect to any Receivables or purported Receivables generated by Designated Receivable and the Originator, whether at the time of any purchase or contribution or at any subsequent timeRelated Security;
(fl) any dispute, claim, offset action or defense (other than discharge in bankruptcy) omission by NFC which reduces or impairs the rights of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance NFRRC with its terms), or any other claim resulting from the services related respect to any such Designated Receivable or the furnishing of or failure to furnish such services;
(g) any product liability claim arising out of or in connection with services that are the subject value of any Receivable generated by the Originatorsuch Designated Receivable; and
(hm) any tax or governmental fee or charge (other than attempt by any tax excluded pursuant Person to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of void the purchase hereunder under statutory provisions or ownership common law or equitable action; and
(n) any claim by any party arising from the activities of the Receivables generated by the Originator NFC in administering, servicing or collecting any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable lawDesignated Receivable.
Appears in 1 contract
Samples: Receivables Sale Agreement (Navistar Financial Retail Receivables Corp)
Indemnities by the Originator. Without limiting any other rights which the Company that Purchaser may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Purchaser (and its assignees) and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demandan after-tax basis, from and against any and all damages, losses, claims, judgments, losses and liabilities and related costs and expenses, (including reasonable attorneys’ fees and disbursements ' fees) (all of the foregoing being collectively called “Purchase and Sale referred to as "Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under resulting from this Agreement or in respect of any Receivable, any related Contract or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefromPurchased Asset, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of Purchaser or such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to as the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receiptscase may be. Without limiting or being limited by the foregoing, the Originator shall indemnify each Purchase and Sale pay on demand to Purchaser or any Indemnified Party for Purchase any and Sale all amounts necessary to indemnify such Person from and against any and all Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of reliance on any representation or warranty or statement made or deemed made by the Originator (or any of its their respective officers) under or in connection with this Agreement or in any other Transaction Documentcertificate, report or any written information or report document delivered by the Originator pursuant hereto or theretothat, which in any such case, shall have been false or incorrect in any respect when made or deemed made;
(cb) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulation;
(dc) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by the Originator free and clear of have filed or pay any Adverse Claim, recording or other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) the failure to filesimilar tax with respect to, or any delay in filingfiling or payment of any recording or other similar tax with respect to, financing statements or other similar instruments or documents under the UCC Uniform Commercial Code of any applicable jurisdiction or other applicable laws with respect to Purchaser's or any Receivables or purported Receivables generated by the Originator, whether at the time of assignee's interest in any purchase or contribution or at any subsequent timePurchased Asset;
(fd) any dispute, claim, offset or defense (other than discharge in bankruptcybankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s Receivable or the related Contract’s Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to any such Receivable or the furnishing of or failure to furnish such merchandise or services;
(ge) any product failure of Originator to perform its duties or obligations under this Agreement or the applicable Contract;
(f) any products liability or warranty claim arising out of or in connection with merchandise, insurance or services that are the subject of any Receivable generated Receivable;
(g) the commingling of Collections of Receivables at any time with other funds of Originator, regardless or whether such commingling shall be permitted by the Originator; andTransaction Documents;
(h) any tax investigation, litigation or governmental fee proceeding related to this Agreement or charge in respect of any Receivable or any Contract;
(i) the payment by Purchaser of any taxes owed by Originator, including, but not limited to, federal, state or local income taxes, excise taxes or business taxes; or
(j) the failure to vest, and maintain vested, in Purchaser a valid and enforceable (i) ownership interest or (ii) a first priority perfected security interest in the items described in Section 2.1(a) (except to the extent such first priority perfected security interest was assigned to the Administrator pursuant to the Loan Agreement). Notwithstanding the foregoing, Originator shall not under any circumstances indemnify Purchaser (or its assignees) for any Indemnified Amounts that result solely from a default by an Obligor with respect to a Receivable other than any tax excluded pursuant to as described in clause (iiid) above or resulting from the circumstances described in the proviso to the preceding sentence), all interest and penalties thereon clause (b) or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law(e) above.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Central Freight Lines Inc/Tx)
Indemnities by the Originator. Without limiting any other rights which the Company Buyer may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, Buyer from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”referred to as "INDEMNIFIED AMOUNTS") awarded against or incurred by any of them the Buyer arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out the ownership of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein Purchased/Contributed Assets or therein in respect of any Lease Receivable or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts Lease relating to or resulting from:
(ai) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of reliance on any representation or warranty made or deemed made by the Originator (or any of its officers) under or in connection with this Agreement Agreement, any Sale Notice or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or theretohereto, which shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(cii) the failure by the Originator to comply with any term, provision or covenant contained in this Agreement, or with any applicable law, rule or regulation with respect to as of the Purchase Date for any Receivable generated by Purchased Lease Receivable, the Originator related Lease, the Related Security or the related Contractother Purchased/Contributed Assets, or or, as of the Purchase Date, the nonconformity of any Receivable generated by Purchased Lease Receivable, the Originator related Lease, the Related Security or the related Contract other Purchased/Contributed Assets with any such applicable law, rule or regulation;
(diii) the failure reduction of Purchased Lease Receivables due to vest and maintain vested any Permitted Encumbrance (except in the Company an ownership interest in the Receivables generated by the Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act favor of the Company, the Issuer Buyer or the Administrator its assignees) whether existing at the time of the purchase or contribution Purchase of such Receivables Lease Receivable or at any time thereafter;thereafter to the extent arising by, through or under Originator but not otherwise; and
(eiv) the failure to file, any products liability claim o r personal injury or any delay in filing, financing statements property damage suit or other similar instruments or documents under the UCC related claim or action of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the services related to any such Receivable or the furnishing of or failure to furnish such services;
(g) any product liability claim whatever sort arising out of or in connection with services that are the Equipment which is the subject of any Purchased Lease Receivable generated by the Originator; and
or Lease. The foregoing Indemnified Amounts shall exclude: (hi) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso Indemnified Amounts to the preceding sentence), all interest and penalties thereon extent resulting from gross negligence or with respect thereto, and all out-of-pocket costs and expenses, including willful misconduct on the reasonable fees and expenses of counsel in defending against the same, which may arise by reason part of the purchase Buyer, or ownership (ii) recourse for an Obligor's inability for Credit reasons to make payments of Lease Receivables. Any amounts subject to the Receivables generated indemnification provisions of this SECTION 7.01 shall be paid by the Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to Buyer within two Business Days following the maximum extent permitted under applicable lawBuyer's demand therefor.
Appears in 1 contract
Samples: Lease Receivables Sale and Contribution Agreement (Capital Associates Inc)
Indemnities by the Originator. Without limiting any other rights which the Company Purchaser may have hereunder or under applicable lawlaw (including, without limitation, the right to recover damages for breach of contract), the Originator hereby agrees to indemnify the Company Purchaser, its successors, transferees and each of its assigns, and the officers, directors, agents, and employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale (each, an "Originator Indemnified Party”"), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable external attorneys’ ' fees and disbursements (all of the foregoing being collectively called “Purchase and Sale referred to as "Originator Indemnified Amounts”") awarded against or incurred by any of them Originator Indemnified Party to the extent relating to or arising out of from or as a result of this Agreement or the acquisition by the Purchaser of the Transferred Assets, subject to the proviso set forth below. Without limiting the generality of the foregoing indemnification, the Originator shall indemnify the Originator Indemnified Parties for Originator Indemnified Amounts to the extent relating to or resulting from any of the following:
(i) the failure of any Purchased Receivable represented by the Originator to perform its obligations be an Eligible Receivable hereunder to be an "Eligible Receivable" at the time of such representation;
(ii) reliance on any representation or warranty made or deemed made by the Originator under this Agreement or any other Transaction Document, or arising out of the claims asserted against Facility Document to which it is a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, party which shall have been false or incorrect in any respect when made or deemed made;
(ciii) the failure by the Originator to comply with any term, provision or covenant contained in this Agreement or any other Facility Document to which it is party or with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or Purchased Receivable, the related Contract, or the Related Security, or the nonconformity of any Receivable generated by the Originator or Purchased Receivable, the related Contract or the Related Security with any such applicable law, rule or regulation;
(div) 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 services or goods the provision or sale of which gave rise to or are the subject of any Purchased Receivable or Contract;
(v) the failure to pay when due any taxes, including, without limitation, sales, excise or personal property taxes payable by the Originator in connection with the Transferred Assets;
(vi) the payment by such Originator 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 Originator's actions or failure to act in breach of this Agreement;
(vii) the failure to vest and maintain vested in the Company an Purchaser or to transfer to the Purchaser a first priority perfected ownership interest in the Receivables generated by the Originator Purchased Receivables, together with all Collections, Related Security and other Transferred Assets free and clear of any Adverse ClaimLien except a Lien in favor of any Affected Party, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables Purchased Receivable arose or at any time thereafter;
(eviii) 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 naming the Originator as "Debtor" with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent timeTransferred Assets;
(fix) any dispute, claim, offset or defense (other than discharge in bankruptcyas a result of the bankruptcy or insolvency of the related Obligor) of the an Obligor to the payment of any Purchased Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s Purchased Receivable 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 services related to any such Purchased Receivable or the furnishing of or failure to furnish such servicesgoods or services (other than as a result of the bankruptcy or insolvency of the related Obligor);
(gx) the commingling of Collections with any other funds;
(xi) any product liability claim arising out failure by the Purchaser to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Purchaser of any Transferred Assets, or any attempt by any Person to void any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision 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 connection with services that are the subject of any Receivable generated by the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded a Lock-Box pursuant to clause (iii) the instructions of the Program Agent given in accordance with the proviso to Loan and Servicing Agreement, the preceding sentence)applicable Lock-Box Processor Agreement, all interest and penalties thereon Blocked Account Agreement or with respect theretothe other Facility Documents, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise whether by reason of the purchase exercise of setoff rights or ownership otherwise;
(xiii) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of purchases made pursuant to this Agreement or any other Facility Document delivered hereunder or in respect of any of the Receivables generated Transferred Assets;
(xiv) any claim brought by any Person arising from any activity by the Originator in servicing, administering or collecting any Purchased Receivable;
(xv) the transfer by the Originator of any Purchased Receivable in violation of any applicable law, rule or regulation;
(xvi) the failure of the Originator to furnish accurate and complete documentation (including, without limitation, a Contract or invoice) to any Obligor; or
(xvii) the failure of any Lock-Box Processor, Approved Sub-servicer or any Related Security connected other third party with a contractual relationship with the Originator for the acceptance or processing of Collections to remit any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable Collections received by it to a Purchase and Sale Indemnified Party Lock-Box or is insufficient a Deposit Account within two (2) Business Days of receipt; provided, however, that the Originator shall not be required to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale indemnify any Originator Indemnified Party to the maximum extent permitted of any amounts (x) resulting from the gross negligence or willful misconduct of such Originator Indemnified Party, or (y) constituting credit recourse for the failure of an Obligor to pay a Purchased Receivable, 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 Originator Indemnified Party by the state or foreign jurisdiction under applicable lawthe laws of which such Originator Indemnified Party is organized or any political subdivision thereof. Any amounts subject to the indemnification provisions of this Section 6.01 shall be paid by the Originator to the related Originator Indemnified Party within ten (10) Business Days, following written demand therefor.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Sherwin Williams Co)
Indemnities by the Originator. Without limiting any other rights which the Company Originator Indemnified Parties may have hereunder or under applicable lawLaw, the each Originator hereby agrees agrees, jointly and severally, to indemnify the Company SPV and each of its successors, transferees and assigns and all officers, directors, employees shareholders, controlling persons, employees, counsel and other agents (each of any of the foregoing Persons being individually called a (collectively, “Purchase and Sale Originator Indemnified PartyParties”), forthwith on demand, ) from and against any and all damages, losses, claims, judgmentsliabilities, liabilities and related costs and expenses, including reasonable attorneys’ fees (which attorneys may be employees of any Originator Indemnified Party) and disbursements (all of the foregoing being collectively called referred to as “Purchase and Sale Originator Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between any Originator and any of the Originator Indemnified Parties or between any of the Originator Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, the failure of other Transaction Documents, the Originator to perform its obligations under this Agreement ownership or maintenance, either directly or indirectly, by the SPV or any other Transaction Document, Originator Indemnified Party of any interest in any Conveyed Receivable and Related Assets or arising out any of the claims asserted against a Purchase and Sale Indemnified Party relating to the other transactions contemplated herein hereby or therein or the use of proceeds thereof or therefromthereby, excluding, however, (i) Purchase and Sale Originator Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Originator Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under in this Agreement or the Second Tier Agreement) and for uncollectible Receivables or (iii) with respect to Foreign Receivables, losses incurred due to the SPV’s inability to receive Collections with respect to such Foreign Receivables arising directly as a result of any tax based upon or measured by net income property, or gross receiptsOriginator’s failure to perfect the SPV’s security interest hereunder in jurisdictions outside the United States. Without limiting the generality of the foregoing, the each Originator shall indemnify each Purchase and Sale Originator Indemnified Party for Purchase and Sale Originator Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the any Originator (or any officers of its officers) any Originator under or in connection with this Agreement Agreement, any of the other Transaction Documents, any Servicer Report or any other Transaction Document, or any written information or report delivered by the any Originator pursuant hereto hereto, or thereto, pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made;
(cb) the failure by the any Originator to comply with any applicable law, rule or regulation Law with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Conveyed Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulationLaw;
(dc) other than with respect to Foreign Receivables, the failure to vest and maintain vested in the Company an SPV a first priority, perfected ownership interest in the Conveyed Receivables generated by the Originator and Related Assets, free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(ed) the failure by any Originator to file, or any delay in filing, financing statements statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Conveyed Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent timeand Related Assets;
(fe) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Conveyed Receivable or purported Receivable generated by the Originator (including, without limitation, including a defense based on such Receivable’s Receivable or the related Contract’s Contract not being a the 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 merchandise or services related to any such Receivable or the furnishing of or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Conveyed Receivables or the related Contracts restricting assignment of any Conveyed Receivables;
(f) any failure of any Originator to perform its duties or obligations in accordance with the provisions hereof;
(g) any product 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 Receivable generated by the Originator; andConveyed Receivable;
(h) the failure by any tax Originator to comply with any term, provision or governmental fee covenant contained in this Agreement or charge any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Conveyed Receivables or related Contracts;
(i) the failure of any Originator to pay when due any sales, excise or personal property taxes payable in connection with any of the Conveyed Receivables;
(j) any repayment by any Originator Indemnified Party of any amount previously distributed in reduction of Net Investment which such Originator Indemnified Party believes in good faith is required to be made;
(k) the commingling by any Originator of Collections at any time with any other than funds;
(l) any tax excluded investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of purchases by any Originator, the ownership of the Asset Interest, or any Conveyed Receivable or Related Asset;
(m) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes pursuant to clause the instructions of the Servicer, the SPV, any Originator or the Agent (iii) in the proviso to the preceding sentence)extent such Person is entitled to give such instructions in accordance with the terms hereof, all interest of the Second Tier Agreement and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise any applicable Blocked Account Agreement) whether by reason of the purchase exercise of set-off rights or ownership otherwise;
(n) 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 Receivables generated by the failure of any Originator to qualify to do business or file any notice of business activity report or any Related Security connected with similar report;
(o) any such Receivables. If for attempt by any reason the indemnification provided above in this Section 9.1 is unavailable Person to a Purchase and Sale Indemnified Party void, rescind or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute set-aside any transfer by any Originator to the amount SPV of any Conveyed Receivable or Related Assets under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(p) any action taken by any Originator in the enforcement or collection of any Conveyed Receivable;
(q) the use of the proceeds of any Purchase hereunder; or
(r) any and all amounts paid or payable by such Purchase and Sale Indemnified Party the SPV pursuant to Sections 9.3, 9.4 or 9.5 of the maximum extent permitted under applicable lawSecond Tier Agreement.
Appears in 1 contract
Samples: Sale Agreement (Ashland Inc.)
Indemnities by the Originator. Without limiting any other rights which the Company may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, ; excluding, however, (i) Purchase and Sale Indemnified Amounts any indemnification which has the effect of recourse for non-payment of the Receivables due to a discharge in bankruptcy or similar insolvency proceeding or other credit related reasons with respect to the extent resulting from gross negligence relevant Obligor and (ii) any net income or willful misconduct franchise tax imposed on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to Party by the jurisdiction under the laws of which such Purchase and Sale Indemnified Party is organized or any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receiptspolitical subdivision thereof. Without limiting the foregoing, and subject to the exclusions set forth in the preceding sentence, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, which shall have been false or incorrect in any respect when made or deemed made;
(c) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable generated or acquired by the Originator sold or otherwise transferred or purported to be transferred hereunder or the related Contract, or the nonconformity of any Receivable generated or acquired by the Originator sold or otherwise transferred or purported to be transferred hereunder or the related Contract with any such applicable law, rule or regulation;
(d) the failure by the Originator to vest and maintain vested in the Company an ownership interest in the Receivables generated or acquired by the Originator sold or otherwise transferred or purported to be transferred hereunder free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) the failure to file, or any delay in filing, by the Originator financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated or acquired by the OriginatorOriginator sold or otherwise transferred or purported to be transferred hereunder, whether at the time of any purchase or contribution or at any subsequent timetime to the extent required hereunder;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcybankruptcy or similar insolvency proceeding of an Obligor or other credit related reasons) of the Obligor to the payment of any Receivable or purported Receivable generated or acquired by the Originator sold or otherwise transferred or purported to be transferred hereunder (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the goods or services related to any such Receivable or the furnishing of or failure to furnish such goods or services;
(g) any product liability claim arising out of or in connection with goods or services that are the subject of any Receivable generated or acquired by the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iiiii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise are required to be paid by reason of the purchase or ownership of the Receivables generated or acquired by the Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law.
Appears in 1 contract
Indemnities by the Originator. Without limiting any other rights which the Company Originator Indemnified Parties may have hereunder or under applicable lawLaw, the each Originator hereby agrees agrees, jointly and severally, to indemnify the Company SPV and each of its successors, transferees and assigns and all officers, directors, employees shareholders, controlling persons, employees, counsel and other agents (each of any of the foregoing Persons being individually called a (collectively, “Purchase and Sale Originator Indemnified PartyParties”), forthwith on demand, ) from and against any and all damages, losses, claims, judgmentsliabilities, liabilities and related costs and expenses, including reasonable attorneys’ fees (which attorneys may be employees of any Originator Indemnified Party) and disbursements (all of the foregoing being collectively called referred to as “Purchase and Sale Originator Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between any Originator and any of the Originator Indemnified Parties or between any of the Originator Indemnified Parties and any third party, in each case arising out of or as a result of this Agreement, the failure of other Transaction Documents, the Originator to perform its obligations under this Agreement ownership or maintenance, either directly or indirectly, by the SPV or any other Transaction Document, Originator Indemnified Party of any interest in any Conveyed Receivable and Related Assets or arising out any of the claims asserted against a Purchase and Sale Indemnified Party relating to the other transactions contemplated herein hereby or therein or the use of proceeds thereof or therefromthereby, excluding, however, (i) Purchase and Sale Originator Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Originator Indemnified Party, Party or (ii) recourse with respect to any Receivable to the extent that such Receivable is for uncollectible on account of insolvencyReceivables, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receiptsExcluded Taxes. Without limiting the generality of the foregoing, the each Originator shall indemnify each Purchase and Sale Originator Indemnified Party for Purchase and Sale Originator Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the any Originator (or any officers of its officers) any Originator under or in connection with this Agreement Agreement, any of the other Transaction Documents, any Servicer Report or any other Transaction Document, or any written information or report delivered by the any Originator pursuant hereto hereto, or thereto, pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made;
(cb) the failure by the any Originator to comply with any applicable law, rule or regulation Law with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Conveyed Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulationLaw;
(dc) the failure to vest and maintain vested in the Company an SPV a first priority, perfected ownership interest in the Conveyed Receivables generated by the Originator and Related Assets, free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(ed) the failure by any Originator, following a request from the Agent, to file, or any delay in filing, financing statements statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Conveyed Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent timeand Related Assets;
(fe) any dispute, claim, offset or defense (other than discharge in bankruptcybankruptcy or as a result of the uncollectibility of any Receivable) of the Obligor to the payment of any Conveyed Receivable or purported Receivable generated by the Originator (including, without limitation, including a defense based on such Receivable’s Receivable or the related Contract’s Contract not being a the 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 merchandise or services related to any such Receivable or the furnishing of or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Conveyed Receivables or the related Contracts restricting assignment of any Conveyed Receivables;
(f) any failure of any Originator to perform its duties or obligations in accordance with the provisions hereof;
(g) any product 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 Receivable generated by the Originator; andConveyed Receivable;
(h) the transfer to the SPV of an interest in any tax or governmental fee or charge (Receivable other than an Eligible Receivable;
(i) the failure by any tax excluded Originator to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Conveyed Receivables or related Contracts;
(j) the failure of any Originator to pay when due any sales, excise or personal property taxes payable in connection with any of the Conveyed Receivables;
(k) any repayment by any Originator Indemnified Party of any amount previously distributed in reduction of Net Investment which such Originator Indemnified Party believes in good faith is required to be made;
(l) the commingling by any Originator of Collections at any time with any other funds;
(m) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of purchases by any Originator, the ownership of the Asset Interest, or any Conveyed Receivable or Related Asset;
(n) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes pursuant to clause the instructions of the Servicer, the SPV, any Originator or the Agent (iii) in the proviso to the preceding sentence)extent such Person is entitled to give such instructions in accordance with the terms hereof, all interest of the Second Tier Agreement and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise any applicable Blocked Account Agreement) whether by reason of the purchase exercise of set-off rights or ownership otherwise;
(o) 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 Receivables generated failure of any Originator to qualify to do business or file any notice of business activity report or any similar report;
(p) any attempt by any Person to void, rescind or set-aside any transfer by any Originator to the SPV of any Conveyed Receivable or Related Assets under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(q) any action taken by any Originator or the Servicer (if the Servicer is an Affiliate or designee of an Originator) in the enforcement or collection of any Conveyed Receivable (unless such action was directed by the Originator Agent or the Investors in bad faith or with gross negligence or willful misconduct);
(r) the use of the proceeds of any Related Security connected with Purchase hereunder; or
(s) any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount all amounts paid or payable by such Purchase and Sale Indemnified Party the SPV pursuant to Sections 9.3, 9.4 or 9.5 of the maximum extent permitted under applicable lawSecond Tier Agreement.
Appears in 1 contract
Samples: Sale Agreement (Greif Inc)
Indemnities by the Originator. Without limiting any other rights which the Company may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Company, the Purchasers, the Agent, the Insurer and each of its their respective assigns, officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”"PURCHASE AND SALE INDEMNIFIED PARTY"), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “"PURCHASE AND SALE INDEMNIFIED AMOUNTS"), regardless of whether any such Purchase and Sale Indemnified Amounts”) Amount is the result of a Purchase and Sale Indemnified Party's negligence, strict liability or other acts or omissions of a Purchase and Sale Indemnified Party, awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting fromfollowing:
(a) the transfer by the Originator of an interest in any Receivable or Related Right to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, thereto (including any information contained in a Purchase Report) which shall have been false false, incorrect or incorrect misleading in any material respect when made, deemed made or deemed madedelivered;
(c) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by the Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;[ * ] * TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(e) the failure of the Originator to filefile with respect to itself, or any delay by the Originator in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the OriginatorOriginator or Related Rights, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s Receivables or the related Contract’s Contracts not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from or relating to the services related transaction giving rise to any such Receivable or relating to collection activities with respect to any Receivable (if such collection activities were performed by the furnishing Originator or any of its Affiliates acting as Servicer or failure to furnish such servicesby any agent or independent contractor retained by the Originator or any of its Affiliates);
(g) any product products liability claim or other claim, investigation, litigation or proceeding arising out of or in connection with goods, insurance or services that are secure or relate to any Receivable;
(h) any litigation, proceeding or investigation against the subject Originator or in respect of any Receivable generated by the Originator; andor Related Right;
(hi) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentencebelow), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase purchase, contribution or ownership of the Receivables generated by the Originator or any Related Security Right connected with any such Receivables;
(j) any failure of the Originator to perform its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(k) the commingling of any Collections at any time with other funds;
(l) the failure by the Originator to pay when due any taxes payable by it, including without limitation, franchise taxes and sales, excise or personal property taxes payable in connection with the Receivables or any Related Right connected with any such Receivables; and
(m) the failure by the Originator to be duly qualified to do business, to be in good standing or to have filed appropriate fictitious or assumed name registration documents in any jurisdiction; EXCLUDING, HOWEVER, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of a Purchase and Sale Indemnified Party, (ii) any indemnification which has the effect of recourse for non-payment of the Receivables due to credit reasons to the Originator (except as otherwise specifically provided under this SECTION 9.1) and (iii) any tax based upon or measured by net income or gross receipts. If for any reason the indemnification provided above in this Section SECTION 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, Originator shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party as a result of such loss, claim, damage or liability to the maximum extent permitted under applicable law. Promptly after receipt by a Purchase and Sale Indemnified Party under this ARTICLE IX of notice of any claim or the commencement of any action arising out of or as a result of any of paragraphs (a) through (m) above, the Purchase and Sale Indemnified Party shall, if a claim in respect thereof is to be made against the Originator under this ARTICLE IX, notify the Originator in writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that the failure to notify the Originator shall not relieve it from any liability which it may have under this ARTICLE IX except to the extent it has been materially prejudiced by such failure and, PROVIDED, FURTHER, that the failure to notify the Originator shall not relieve it from any liability which it may have to a Purchase and Sale Indemnified Party otherwise than under this ARTICLE IX. If any such claim or action shall be brought against a Purchase and Sale Indemnified Party, the Originator shall be entitled to participate therein and, to the extent that it wishes, to assume the defense thereof with counsel satisfactory to the Purchase and Sale Indemnified Party. After notice from the Originator to the Purchase and Sale Indemnified Party of its election to assume the defense of such claim or action, the Originator shall not be liable to the Purchase and Sale Indemnified Party under this ARTICLE IX for any legal or other expenses subsequently incurred by Purchase and Sale Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. The Originator shall not (i) without the prior written consent of the relevant Purchase and Sale Indemnified Party or Parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the Purchase and Sale Indemnified Party or Parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each Purchase and Sale Indemnified Party from all liability arising out of such claim, action, suit or proceeding or (ii) be liable for any settlement of any such action affected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment of the plaintiff in any such action, the Originator agrees to indemnify and hold harmless any indemnified party from and against any Purchase and Sale Indemnified Amounts relating thereto.
Appears in 1 contract
Indemnities by the Originator. Without limiting any other rights which the Company may have hereunder or under applicable law, the Originator Originator, hereby agrees to indemnify the Company and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “"Purchase and Sale Indemnified Party”"), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “"Purchase and Sale Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of the failure of the Originator (in its capacity as Originator) to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) any indemnification which would have the effect of creating in favor of the Company and against the Originator recourse with respect for non-payment of any Receivable, such recourse to include without limitation recourse for any Receivable setoffs, disputes, recoupments, defenses or claims where the facts demonstrate to the extent reasonable satisfaction of the parties hereto, that the Obligor's failure to make payment is the result of such Receivable is uncollectible on account of Obligor's insolvency, bankruptcy bankruptcy, inability or lack of creditworthiness of the related Obligor (except unwillingness to pay its obligations as otherwise specifically provided under this Agreement) they mature due to its financial condition and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator Originator, agrees that it shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(c) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated transferred by the Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in setoffs, disputes, recoupments, defenses or claims where the facts demonstrate to the reasonable satisfaction of the parties hereto, that the Obligor's failure to make payment is the result of such Obligor's insolvency, bankruptcy, inability or unwillingness to pay its obligations as they mature due to its financial condition) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s 's or the related Contract’s 's not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the services related to any such Receivable or the furnishing of or failure to furnish such services;
(g) any product liability claim arising out of or in connection with services that are the subject of any Receivable generated by the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, Originator agrees that it shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Church & Dwight Co Inc /De/)
Indemnities by the Originator. Without limiting any other rights which that the Company SPE (or the Administrative Agent, as its assignee) may have hereunder or under applicable lawLaw, the Originator hereby agrees to indemnify the Company SPE, the Administrative Agent, the Purchasers and each of its officersofficer, directorsdirector, employees employee, agent, consultant, auditor, Affiliate and agents (each attorney of the foregoing Persons being SPE, the Purchasers or the Administrative Agent (herein individually each called a an “Purchase and Sale Indemnified Party” and collectively called the “Indemnified Parties”), forthwith on demand, ) from and against any and all damagesliabilities, obligations, losses, claimsdamages, penalties, actions, judgments, liabilities suits, claims, costs, expenses and related costs disbursements of any kind or nature whatsoever including, without limitation, the reasonable and expenses, including reasonable attorneys’ documented fees and disbursements of counsel for such Indemnified Parties in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnified Party shall be designated a party thereto (all of the foregoing being collectively herein called the “Purchase and Sale Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, an Indemnified Party in connection with or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating execution or delivery of any of the Transaction Documents or the making of any sale hereunder, the performance by the parties to the transactions contemplated herein or therein any Transaction Document of their respective obligations thereunder or the use of the proceeds thereof or therefromof any Receivable, excluding, however, in each of the foregoing instances:
(iA) Purchase and Sale Indemnified Amounts to the extent resulting a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted solely from the gross negligence or willful misconduct on the part of such Purchase and Sale the applicable Indemnified Party, ;
(iiB) recourse with respect to any Receivable Indemnified Amounts to the extent the same includes losses in respect of Receivables that such Receivable is are uncollectible solely on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor Obligor;
(except C) Taxes (other than Taxes that represent losses, claims, damages, etc. arising from any claim brought in connection with the Transaction Documents that was not related to the payment of Taxes);
(D) Indemnified Amounts to the extent such amounts result from a claim brought by the Originator against an Indemnified Party for breach of such Indemnified Party’s obligations under any Transaction Document as otherwise specifically provided determined by the final judgment of a court of competent jurisdiction in which the Originator the prevailing party; or
(E) Indemnified Amounts to the extent such amounts result from a claim brought by an Indemnified Party against the Originator for breach of its respective obligations under this Agreement) and (iii) any tax based upon or measured Transaction Document as determined by net income property, or gross receiptsthe final judgment of a court of competent jurisdiction in which the Originator is the prevailing party. Without limiting the foregoinggenerality of the foregoing indemnification, the Originator shall indemnify each Purchase and Sale the Indemnified Party Parties for Purchase and Sale Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to the Originator but excluding, in any event, items listed in (A)-(E) above) relating to or resulting from:
(ai) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with with, as applicable, this Agreement Agreement, any other Transaction Document to which the Originator is a party or any other Transaction Document, or any written information or report required to be delivered by the Originator any such Person pursuant hereto or thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(cii) the failure by the Originator to comply with any applicable law, rule or regulation Law with respect to any Receivable generated by the Originator or the Contract related Contractthereto, or the nonconformity of any Receivable generated by or Contract included therein with any such applicable Law or any failure of the Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(iii) any failure of the Originator to perform its duties, covenants or other obligations in accordance with the provisions of any Transaction Document to which it is a party;
(iv) any environmental liability, products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such applicable law, rule Receivable or regulationthe furnishing or failure to furnish such merchandise or services;
(dvi) the commingling of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of any Receivable, the ownership of the Receivables or any other investigation, 18 litigation or proceeding relating to the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) the occurrence with respect to the Originator of any event specified in Section 10.01(j) or 10.01(k) of the Receivables Purchase Agreement (as if references therein to “the Seller Parties” or “any Seller Party” were references to the Originator);
(x) any failure of the SPE to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from the Originator, free and clear of any Lien (other than as created hereunder); or any failure of the SPE to give reasonably equivalent value to the Originator under this Agreement in consideration of the transfer by it of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xi) any failure to vest and maintain vested in the Company an SPE (or the Administrative Agent, as its assignee) a valid and perfected ownership interest or a first priority perfected Security Interest in the Receivables generated by the Originator Collateral, free and clear of any Adverse Claim, other than an Adverse Claim arising solely Lien (except as a result of an act of created by the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafterTransaction Documents);
(exii) 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 with respect to any Receivables or purported Receivables generated by the OriginatorOriginator Collateral, whether at on the time of any purchase or contribution date hereof or at any subsequent time, except to the extent such failure or delay is caused by the SPE (or the Administrative Agent, as its assignee);
(fxiii) any disputeaction or omission by the Originator which reduces or impairs the rights of the SPE (or the Administrative Agent, claim, offset as its assignee) with respect to any the Originator Collateral or defense the value of any the Originator Collateral (other than discharge in bankruptcy) at the direction of the Obligor to SPE or the payment of any Receivable or purported Receivable generated Administrative Agent and except as contemplated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its termsTransaction Documents), or any other claim resulting from the services related to any such Receivable or the furnishing of or failure to furnish such services;
(gxiv) any product liability claim arising out of attempt by any Person to void any sale hereunder or the Security Interest in connection with services that are the subject of any Receivable generated by the OriginatorOriginator Collateral granted hereunder, whether under statutory provision, common law or equitable action; and
(hxv) the failure of any tax or governmental fee or charge (other than Receivable included as an Eligible Receivable on any tax excluded pursuant Monthly Report to clause (iii) in be an Eligible Receivable at the proviso to the preceding sentence), all interest time so included. The provisions of this Section 6.1 shall survive termination of this Agreement and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable lawAgreement.
Appears in 1 contract
Samples: Receivables Sale Agreement (MSC Industrial Direct Co Inc)
Indemnities by the Originator. Without limiting any other rights which the Company may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “"Purchase and Sale Indemnified Party”"), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “"Purchase and Sale Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, which shall have been false or incorrect in any respect when made or deemed made;
(c) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by the Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s 's or the related Contract’s 's not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the services related to any such Receivable or the furnishing of or failure to furnish such services;
(g) any product liability claim arising out of or in connection with services that are the subject of any Receivable generated by the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law.
Appears in 1 contract
Indemnities by the Originator. Without limiting any other rights which the Company may have hereunder or under applicable law, the Originator Originator, severally and for itself alone, hereby agrees to indemnify the Company and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “"Purchase and Sale Indemnified Party”"), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “"Purchase and Sale Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) any indemnification which has the effect of recourse with respect for non-payment of the Receivables to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor indemnitor (except as otherwise specifically provided under this AgreementSection 9.1) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(c) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by the Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the services related to any such Receivable or the furnishing of or failure to furnish such services;
(g) any product liability claim arising out of or in connection with services that are the subject of any Receivable generated by the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law.
Appears in 1 contract
Indemnities by the Originator. Without limiting any other rights which the Company may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Company, the Purchasers, the Agent, the Insurer and each of its their respective assigns, officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”) ), regardless of whether any such Purchase and Sale Indemnified Amount is the result of a Purchase and Sale Indemnified Party’s negligence, strict liability or other acts or omissions of a Purchase and Sale Indemnified Party, awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting fromfollowing:
(a) the transfer by the Originator of an interest in any Receivable or Related Right to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, thereto (including any information contained in a Purchase Report) which shall have been false false, incorrect or incorrect misleading in any material respect when made, deemed made or deemed madedelivered;
(c) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by the Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;[*]
(e) the failure of the Originator to filefile with respect to itself, or any delay by the Originator in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the OriginatorOriginator or Related Rights, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s Receivables or the related Contract’s Contracts not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from or relating to the services related transaction giving rise to any such Receivable or relating to collection activities with respect to any Receivable (if such collection activities were performed by the furnishing Originator or any of its Affiliates acting as Servicer or failure to furnish such servicesby any agent or independent contractor retained by the Originator or any of its Affiliates);
(g) any product products liability claim or other claim, investigation, litigation or proceeding arising out of or in connection with goods, insurance or services that are secure or relate to any Receivable;
(h) any litigation, proceeding or investigation against the subject Originator or in respect of any Receivable generated by the Originator; andor Related Right;
(hi) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentencebelow), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase purchase, contribution or ownership of the Receivables generated by the Originator or any Related Security Right connected with any such Receivables;
(j) any failure of the Originator to perform its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(k) the commingling of any Collections at any time with other funds;
(l) the failure by the Originator to pay when due any taxes payable by it, including without limitation, franchise taxes and sales, excise or personal property taxes payable in connection with the Receivables or any Related Right connected with any such Receivables; and
(m) the failure by the Originator to be duly qualified to do business, to be in good standing or to have filed appropriate fictitious or assumed name registration documents in any jurisdiction; excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of a Purchase and Sale Indemnified Party, (ii) any indemnification which has the effect of recourse for non-payment of the Receivables due to credit reasons to the Originator (except as otherwise specifically provided under this Section 9.1) and (iii) any tax based upon or measured by net income or gross receipts. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, Originator shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party as a result of such loss, claim, damage or liability to the maximum extent permitted under applicable law. Promptly after receipt by a Purchase and Sale Indemnified Party under this Article IX of notice of any claim or the commencement of any action arising out of or as a result of any of paragraphs (a) through (m) above, the Purchase and Sale Indemnified Party shall, if a claim in respect thereof is to be made against the Originator under this Article IX, notify the Originator in writing of the claim or the commencement of that action; provided, however, that the failure to notify the Originator shall not relieve it from any liability which it may have under this Article IX except to the extent it has been materially prejudiced by such failure and, provided, further, that the failure to notify the Originator shall not relieve it from any liability which it may have to a Purchase and Sale Indemnified Party otherwise than under this Article IX. If any such claim or action shall be brought against a Purchase and Sale Indemnified Party, the Originator shall be entitled to participate therein and, to the extent that it wishes, to assume the defense thereof with counsel satisfactory to the Purchase and Sale Indemnified Party. After notice from the Originator to the Purchase and Sale Indemnified Party of its election to assume the defense of such claim or action, the Originator shall not be liable to the Purchase and Sale Indemnified Party under this Article IX for any legal or other expenses subsequently incurred by Purchase and Sale Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. The Originator shall not (i) without the prior written consent of the relevant Purchase and Sale Indemnified Party or Parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the Purchase and Sale Indemnified Party or Parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each Purchase and Sale Indemnified Party from all liability arising out of such claim, action, suit or proceeding or (ii) be liable for any settlement of any such action affected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment of the plaintiff in any such action, the Originator agrees to indemnify and hold harmless any indemnified party from and against any Purchase and Sale Indemnified Amounts relating thereto.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Adesa California, LLC)
Indemnities by the Originator. Without limiting any other rights which the Company Buyer may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Buyer and its assigns, and each of its their respective directors, officers, directorsemployees, employees agents and agents attorneys (each all of the foregoing Persons being individually called a “Purchase and Sale collectively referred to as "Indemnified Party”), forthwith on demand, Parties") from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “Purchase and Sale referred to as "Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(ai) the transfer by the Originator sale of an interest in any Receivable to any Person other than under this Agreement which is not at the Companydate of Purchase an Eligible Receivable;
(bii) the breach of reliance on any representation or warranty made or deemed made by the Originator Originator, the Collection Agent (if Synthetic or one of its Affiliates) or any of its officers) their respective officers under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or theretoAgreement, which shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(ciii) the failure by the Originator or the Collection Agent (if Synthetic or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or the Receivables Purchase Agreement or any of the other Originator Documents, or with any applicable law, rule or regulation with respect to any Receivable generated by Receivable, the Originator related Contract or the related ContractRelated Security, or the nonconformity of any Receivable generated by the Originator or Receivable, the related Contract or the Related Security with any such applicable law, rule or regulation;
(dA) the failure to vest and maintain vested in the Company an Buyer or to transfer to the Buyer, legal and equitable title to and ownership interest in of, the Receivables generated and the other Transferred Assets which are, or are purported to be, sold by the Originator hereunder; or (B) the failure to grant to the Buyer a valid and perfected ownership interest under Article 9 of the UCC in and to the Receivables which are, or are purported to be, Transferred Assets, together with all Collections and Related Security; in each case free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution Purchase of any such Receivables Receivable or at any time thereafterthereafter (other than Adverse Claims created in favor of the Buyer hereunder or by the Buyer under the Receivables Purchase Agreement);
(ev) the failure by the Originator to make any payment required on its part to be made hereunder;
(vi) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables and other Transferred Assets which are, or are purported Receivables generated to be, sold by the OriginatorOriginator hereunder, whether at the time of any purchase or contribution Purchase or at any subsequent time;
(fvii) any dispute, claim, offset or defense (other than the discharge in bankruptcybankruptcy of the Obligor) of the Obligor to the payment of any Receivable which is, or is purported Receivable generated to be sold by the an Originator hereunder (including, without limitation, a defense based on such Receivable’s Receivable or the related Contract’s Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to any such Receivable or the furnishing of or failure to furnish such merchandise or services;
(gviii) any product failure of the Originator or the Collection Agent (if Synthetic 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 or any Affiliate thereof to perform its respective duties under the Contracts;
(ix) 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 services that goods and/or merchandise which are the subject of any Receivable generated or Contract;
(x) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes payable in connection with the Transferred Assets;
(xi) the commingling of Collections of Transferred Assets at any time with other funds;
(xii) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Purchases or the ownership by the Originator; andBuyer of Transferred Assets;
(hxiii) any tax attempt by any Person to void or governmental fee or charge (other than otherwise avoid any tax excluded pursuant to clause (iii) in transfer of a Transferred Asset from the proviso Originator to the preceding sentence)Buyer under any statutory provision or common law or equitable action, all interest and penalties thereon or with respect theretoincluding, and all out-of-pocket costs and expenseswithout limitation, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason any provision of the purchase or ownership Bankruptcy Code; or
(xiv) the failure of the Receivables generated by the Originator or any Related Security connected with of its respective agents or representatives (including, without limitation, agents, representatives and employees of the Originator acting pursuant to authority granted under Section 6.01) to remit to the Collection Agent, Collections of Transferred Assets remitted to the Originator or any such Receivablesagent or representative. If for any reason Any amounts subject to the indemnification provided above in provisions of this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then 8.01 shall be paid by the Originator, severally and for itself, shall contribute Originator to the amount paid or payable by such Purchase and Sale Indemnified Party Buyer within two (2) Business Days following the Buyer's demand therefor. Notwithstanding any other provision of this Agreement to the maximum extent permitted under applicable lawcontrary, the Originator shall not indemnify the Indemnified Parties for or with respect to any Indemnified Amounts that would constitute recourse for uncollectible Transferred Assets due to credit reasons.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Synthetic Industries Inc)
Indemnities by the Originator. Without limiting any other rights which the Company may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “"Purchase and Sale Indemnified Party”"), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “"Purchase and Sale Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence negligence, bad faith or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(a) : the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) ; the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, which shall have been false or incorrect in any respect when made or deemed made;
(c) ; the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulation;
(d) ; the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by the Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) ; the failure to file, or any delay in filing, financing statements or other similar instruments or documents by the Originator under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent time;
(f) ; any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s 's or the related Contract’s 's not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the services related to any such Receivable or the furnishing of or failure to furnish such services;
(g) ; any product liability claim arising out of or in connection with services that are the subject of any Receivable generated by the Originator; and
(h) and any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Carpenter Technology Corp)
Indemnities by the Originator. Without limiting any other rights which the Company Buyer may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Buyer and any of its assignees (including the Agent and each of its Purchaser) and their respective officers, directors, agents and employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale an "Indemnified Party”), forthwith on demand, ") from and against any and all damages, losses, claims, judgmentstaxes, liabilities liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Buyer, the Agent or such Purchaser) and disbursements (all of the foregoing being collectively called “Purchase and Sale referred to as "Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or the acquisition, either directly or indirectly, of any other Transaction Document, or arising out of interest in the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefromReceivables, excluding, however, :
(i) Purchase and Sale 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 such Purchase and Sale the Indemnified Party, Party seeking indemnification;
(ii) recourse with respect to any Receivable Indemnified Amounts to the extent that such Receivable is the same includes losses in respect of Receivables which are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except unless the asserted claim arises under Section 2.1(q)); or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with (a) the characterization of the Purchases as true sales and (b) the characterization of the transactions under the Investor Agreement as creating Indebtedness of the Buyer for purposes of taxation; provided, however, that nothing contained in this sentence shall limit the liability of the Originator or the Sub-Servicer for amounts otherwise specifically provided to be paid by the Originator or the Sub-Servicer under the terms of this Agreement) and (iii) Agreement or any tax based upon or measured by net income property, or gross receiptsother Transaction Document. Without limiting the foregoinggenerality of the foregoing indemnification, the Originator shall indemnify each Purchase and Sale the Indemnified Party Parties for Purchase and Sale Indemnified Amounts relating (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to the Originator or the Sub-Servicer) to the extent the same relate to or resulting result from:
(ai) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator or the Sub-Servicer (or any officers of its officersthe Originator or the Sub-Servicer) under or in connection with this Agreement or Agreement, any other Transaction Document, any Receivables Activity Report or any written other information or report delivered by the Originator or the Sub-Servicer pursuant hereto or thereto, which shall have been false or incorrect in any respect when made or deemed made;
(cii) the failure by the Originator or the Sub-Servicer to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the Contract related Contractthereto, or the nonconformity of any Receivable generated by the Originator or the related Contract included therein with any such applicable law, rule or regulation;
(diii) the any failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by of the Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at Sub-Servicer to perform its duties or obligations in accordance with the time provisions of the purchase this Agreement or contribution of such Receivables or at any time thereafterother Transaction Document;
(eiv) any products liability or similar claim arising out of or in connection with merchandise, insurance or services which are the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC subject of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent timeContract;
(fv) any dispute, claim, offset or defense (other than discharge in bankruptcybankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s Receivable or the related Contract’s 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 services sale of the merchandise or service related to any such Receivable or the furnishing of or failure to furnish such merchandise or services;
(gvi) the commingling of Collections of Receivables at any time with other funds;
(vii) any product liability claim investigation, litigation or proceeding related to or arising out of from this Agreement or in connection with services that are any other Transaction Document, the subject of any Receivable generated by transactions contemplated hereby or thereby, the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason use of the purchase or proceeds of a Purchase, the ownership of the Receivables generated or any other investigation, litigation or proceeding relating to the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby or thereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Event of Default described in Section 6.1(d);
(x) the failure to vest and maintain vested in the Buyer, or to transfer to the Buyer, legal and equitable tide to, and ownership of, a first priority perfected ownership 25 interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (other than as created by the Originator or any Related Security connected with any such Receivables. If for any reason Buyer under the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then Transaction Documents);
(xi) the Originator's use of the proceeds; or
(xii) any attempt by any Person to void any transfer purported to have been made hereunder under any statutory provision or common-law or equitable action, severally and for itselfincluding, shall contribute to without limitation, any provision of the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable lawBankruptcy Code.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Amkor Technology Inc)
Indemnities by the Originator. Without limiting any other rights which the Company Purchaser may have hereunder or under applicable lawlaw (including, without limitation, the right to recover damages for breach of contract), the Originator hereby agrees to indemnify the Company Purchaser, its successors, transferees and each of its assigns, and the officers, directors, agents, and employees and agents (each of the foregoing Persons being individually called a (each, an “Purchase and Sale Originator Indemnified Party”), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable external attorneys’ fees and disbursements (all of the foregoing being collectively called referred to as “Purchase and Sale Originator Indemnified Amounts”) awarded against or incurred by any of them Originator Indemnified Party to the extent relating to or arising out of from or as a result of this Agreement or the acquisition by the Purchaser of the Transferred Assets, subject to the proviso set forth below. Without limiting the generality of the foregoing indemnification, the Originator shall indemnify the Originator Indemnified Parties for Originator Indemnified Amounts to the extent relating to or resulting from any of the following:
(i) the failure of any Purchased Receivable represented by the Originator to perform its obligations be an Eligible Receivable hereunder to be an “Eligible Receivable” at the time of such representation;
(ii) reliance on any representation or warranty made or deemed made by the Originator under this Agreement or any other Transaction Document, or arising out of the claims asserted against Facility Document to which it is a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, party which shall have been false or incorrect in any respect when made or deemed made;
(ciii) the failure by the Originator to comply with any term, provision or covenant contained in this Agreement or any other Facility Document to which it is a party or with any applicable law, tariff, rule or regulation with respect to any Receivable generated by the Originator or Purchased Receivable, the related Contract, or the Related Security, or the nonconformity of any Receivable generated by the Originator or Purchased Receivable, the related Contract or the Related Security with any such applicable law, tariff, rule or regulation;
(div) 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 services or goods the provision or sale of which gave rise to or are the subject of any Purchased Receivable or Contract;
(v) the failure to pay when due any taxes, including, without limitation, sales, excise or personal property taxes payable by the Originator in connection with the Transferred Assets;
(vi) the payment by such Originator 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 Originator’s actions or failure to act in breach of this Agreement;
(vii) the failure to vest and maintain vested in the Company an Purchaser or to transfer to the Purchaser a first priority perfected ownership interest in the Receivables generated by the Originator Purchased Receivables, together with all Collections, Related Security and other Transferred Assets free and clear of any Adverse ClaimLien except a Lien in favor of any Affected Party, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables Purchased Receivable arose or at any time thereafter;
(eviii) 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 naming the Originator as “Debtor” with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent timeTransferred Assets;
(fix) any dispute, claim, offset or defense (other than discharge in bankruptcyas a result of the bankruptcy or insolvency of the related Obligor) of the an Obligor to the payment of any Purchased Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s Purchased Receivable 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 services related to any such Purchased Receivable or the furnishing of or failure to furnish such servicesgoods or services (other than as a result of the bankruptcy or insolvency of the related Obligor);
(gx) the commingling of Collections with any other funds;
(xi) any product liability claim arising out failure by the Purchaser to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Purchaser of any Transferred Assets, or any attempt by any Person to void 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 Lock-Box Processor or Deposit Account Bank to remit any amounts or items of payment held in a Deposit Account or in connection with services that are the subject of any Receivable generated by the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded a Lock-Box pursuant to clause (iii) the instructions of the Program Agent given in accordance with the proviso to Loan and Servicing Agreement, the preceding sentence)applicable Lock-Box Processor Agreement, all interest and penalties thereon Blocked Account Agreement or with respect theretothe other Facility Documents, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise whether by reason of the purchase exercise of setoff rights or ownership otherwise;
(xiii) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of purchases made pursuant to this Agreement or any other Facility Document delivered hereunder or in respect of any of the Receivables generated Transferred Assets;
(xiv) any claim brought by any Person arising from any activity by the Originator in servicing, administering or collecting any Purchased Receivable;
(xv) the transfer by the Originator of any Purchased Receivable in violation of any applicable law, tariff, rule or regulation;
(xvi) the failure of the Originator to furnish accurate and complete documentation (including, without limitation, a Contract or invoice) to any Obligor;
(xvii) the failure of any Lock-Box Processor, Approved Sub-servicer or any Related Security connected other third party with a contractual relationship with the Originator for the acceptance or processing of Collections to remit any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable Collections received by it to a Purchase and Sale Indemnified Party Lock-Box or is insufficient to hold such Purchase and Sale Indemnified Party harmlessa Deposit Account within two (2) Business Days of receipt; or
(xviii) the amendment, then modification or termination of any tariff or similar contract governing any Purchased Receivable or the activities of the Originator; provided, severally and for itselfhowever, that the Originator shall contribute not be required to the amount paid or payable by such Purchase and Sale indemnify any Originator Indemnified Party to the maximum extent permitted of any amounts (x) resulting from the gross negligence or willful misconduct of such Originator Indemnified Party, or (y) constituting credit recourse for the failure of an Obligor to pay a Purchased Receivable, 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 Originator Indemnified Party by the state or foreign jurisdiction under applicable lawthe laws of which such Originator Indemnified Party is organized or any political subdivision thereof. Any amounts subject to the indemnification provisions of this Section 6.01 shall be paid by the Originator to the related Originator Indemnified Party within thirty (30) Business Days following demand therefor.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Tampa Electric Co)
Indemnities by the Originator. Without limiting any other rights which the Company that any Cartus Indemnified Party may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Issuer and each of its successors, permitted transferees and assigns, and all officers, directors, shareholders, controlling Persons, employees and agents of any of the foregoing (each of the foregoing Persons being individually called Persons, a “Purchase and Sale Cartus Indemnified Party”), forthwith on demand, from and against any and all damages, losses, claimsclaims (whether on account of settlements or otherwise), actions, suits, demands, judgments, liabilities (including penalties), obligations or disbursements of any kind or nature and related costs and expenses, expenses (including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”disbursements) awarded against or incurred by any of them them, arising out of or as a result of the failure any of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out following (all of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale collectively, “Cartus Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:Losses”):
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or under any of its officers) under or in connection with this Agreement or any other the Transaction DocumentDocuments to which it is a party, or any written information or report delivered by the Originator pursuant hereto (including in its capacity as Servicer) with respect to the Originator or theretothe Cartus Fee Purchased Assets, which shall have having been false untrue or incorrect in any respect when made or deemed to have been made;
(cb) the failure by the Originator to comply with any material applicable lawRequirement of Law, rule or regulation with respect to any Receivable generated by the Originator Cartus Fee Purchased Asset or the related Contract, or the nonconformity any failure of any Receivable generated by the Originator or the related Contract a Cartus Fee Purchased Asset to comply with any such applicable law, rule or regulationmaterial Requirement of Law as of the date of sale of such Cartus Fee Purchased Asset hereunder;
(dc) the failure to vest and maintain vested in the Company an Issuer a valid ownership interest in the Receivables generated by the Originator Cartus Fee Purchased Assets, free and clear of any Adverse Claim, other than an Adverse Claim Lien arising solely as through or under it (including without limitation any such failure arising from a result circumstance described in the definition of an act Permitted Exceptions);
(d) any failure of the Company, Originator to perform its duties or obligations in accordance with the Issuer or the Administrator whether existing at the time provisions of the purchase Transaction Documents or contribution of such Receivables or at any time thereafterContract, in each case to which it is a party;
(e) 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 the transfer of any Receivables or purported Receivables generated by Cartus Fee Purchased Assets to the OriginatorIssuer, whether at the time of any purchase or contribution sale or at any subsequent time;
(f) the failure by the Originator to pay when due any disputetaxes owing by it (including without limitation sales, claimexcise or property taxes) payable in connection with the Cartus Fee Purchased Assets, offset other than any such taxes, assessments or defense charges that are being diligently contested in good faith by appropriate proceedings, for which adequate reserves in accordance with GAAP have been set aside on its books and that have not given rise to any Liens (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its termsPermitted Liens), or any other claim resulting from the services related to any such Receivable or the furnishing of or failure to furnish such services;
(g) any product liability claim arising out of or reduction in connection with services that are the subject Unpaid Balance of any Fee Receivable generated included in the Cartus Fee Purchased Assets as a result of any Concession made by the Originator; andOriginator or any Affiliate thereof (other than CRC or the Issuer);
(h) any tax product liability, strict liability or governmental fee or charge personal injury claim in connection with the service (other than any tax excluded pursuant service provided by CRC or the Issuer or their assignees) that is the subject of any Cartus Fee Purchased Asset; and
(i) any investigation, litigation or proceeding related to any use by Cartus of the proceeds of any Purchase made hereunder. Notwithstanding the foregoing (and with respect to clause (ii) below, without prejudice to the rights that the Issuer may have pursuant to the other provisions of this Agreement or the provisions of any of the other Transaction Documents), in no event shall any Cartus Indemnified Party be indemnified for any Cartus Indemnified Losses (i) resulting from negligence or willful misconduct on the part of such Cartus Indemnified Party, (ii) to the extent the same includes losses in respect of Cartus Fee Purchased Assets and reimbursement therefor that would constitute credit recourse to the Originator for the amount of any Cartus Fee Receivable not paid by the related Obligor or (iii) in resulting from the proviso to the preceding sentence), all interest and penalties thereon action or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason omission of the purchase or ownership of Servicer (unless the Receivables generated by Servicer is the Originator or any Related Security connected with any such Receivablesan Affiliate thereof (other than CRC or the Issuer)). If for any reason the indemnification provided above in this Section 9.1 10.1 is unavailable to a Purchase and Sale an Cartus Indemnified Party or is insufficient to hold such Purchase and Sale an Cartus Indemnified Party harmless, then the Originator, severally and for itself, Originator shall contribute to the maximum amount payable or paid to such Cartus Indemnified Party as a result of such loss, claim, damage or payable liability in such proportion as is appropriate to reflect not only the relative benefits received by such Purchase and Sale Cartus Indemnified Party on the one hand and the Originator on the other hand, but also the relative fault of such Cartus Indemnified Party and the Originator, and any other relevant equitable considerations. Notwithstanding anything to the maximum extent permitted under applicable lawcontrary in this Agreement, any representations, warranties and covenants made by the Seller in this Agreement or the other Transaction Documents that are qualified by or limited to events or circumstances that have, or are reasonably likely to have, given rise to a Material Adverse Effect shall (solely for purposes of the indemnification obligations set forth in this Section 10.1) be deemed not to be so qualified or limited.
Appears in 1 contract
Samples: Fee Receivables Purchase Agreement (NRT Settlement Services of Missouri LLC)
Indemnities by the Originator. Without limiting any other rights which the Company Buyer may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, Buyer from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “Purchase and Sale referred to as "Indemnified Amounts”") awarded against or incurred by any of them the Buyer arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or the ownership of Purchased Loans or in respect of any other Transaction Loan or any Loan Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, the Buyer or (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under in this Agreement) and (iii) any tax based upon or measured by net income property, or gross receiptsfor uncollectible Purchased Loans. Without limiting the foregoing, foregoing the Originator shall indemnify each Purchase and Sale Indemnified Party the Buyer for Purchase and Sale Indemnified Amounts relating to arising or resulting from:
(ai) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of reliance on any representation or warranty made or deemed made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, Facility Document or any written other information or report delivered by the Originator pursuant hereto to this Agreement or theretoany other Facility Document (including, without limitation, any representation with respect to a Loan's classification as an Eligible Loan), which shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(cii) the failure by the Originator to comply with any term, provision or covenant contained in this Agreement, or with any applicable law, rule or regulation with respect to any Receivable generated by Purchased Loan, the Originator related Loan Documents or the related ContractRelated Security, or the nonconformity of any Receivable generated by Purchased Loan, the Originator related Loan Documents or the related Contract Related Security with any such applicable law, rule or regulation;
(diii) the failure to vest and maintain vested in the Company an Buyer or to transfer to the Buyer, legal and equitable title to and ownership of, or security interest in in, the Receivables generated by the Originator Loans which are, or are intended to be, Purchased Loans, together with all Collections and Related Security, free and clear of any Adverse Claim, other than an Adverse Claim arising solely Lien (except as a result of an act of the Company, the Issuer or the Administrator permitted hereunder) whether existing at the time of the purchase or contribution Purchase of such Receivables Loan or at any time thereafter;
(eiv) the failure by the Originator to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any all applicable jurisdiction jurisdictions or other applicable laws or the failure to make other filings with respect to Collateral with respect to any Receivables Loans which are, or purported Receivables generated are intended to be, Purchased Loans, to the extent required by the Originator, Credit and Collection Policy and whether at the time of any purchase or contribution Purchase or at any subsequent time;
(fv) any Obligor Claim or other dispute, claim, offset or defense (other than discharge in bankruptcybankruptcy of the Obligor) of the Obligor to the payment of any Receivable Loan which is, or purported Receivable generated by the Originator is intended to be, a Purchased Loan (including, without limitation, a defense based on such Receivable’s Loan or the related Contract’s Loan Documents 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 services related to any such Receivable or the furnishing of or failure to furnish such services;
(gvi) any product lender liability claim or other similar or related claim or action of whatever sort arising out of or in connection with services that are any Loan which is, or is intended to be a Purchased Loan, or the subject of any Receivable generated by the Originator; andrelated Loan Documents;
(hvii) the failure to pay when due any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expensestaxes, including without limitation, sales, excise or personal property taxes payable in connection with the reasonable fees and expenses Loans;
(viii) the failure of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected of its agents and representatives to remit to the Buyer, Collections of Purchased Loans remitted to the Originator or such agent or representative;
(ix) the failure by the Originator to be duly qualified to do business, to be in good standing or to have filed appropriate fictitious or assumed name registration documents in any jurisdiction, where such qualification may be required by applicable law;
(x) the commingling of Collections of Purchased Loans at any time with other funds;
(xi) any such Receivables. If for any reason repayment by the indemnification provided above Buyer which is required by law, or which the Buyer believes in this Section 9.1 good faith is unavailable required by law (as a preference or otherwise, and to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally an Obligor, a trustee for the Originator or any Obligor, a court or any other Person) of an amount that previously caused a reduction in the cash portion of the Purchase Price paid by the Buyer, and for itself, shall contribute any interest thereon required (or believed in good faith by the Buyer to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law.be required); and
Appears in 1 contract
Samples: Loan Sale and Contribution Agreement (Sirrom Capital Corp)
Indemnities by the Originator. Without limiting any ----------------------------- other rights which the Company Buyer or any of its assignees may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Buyer, its assignees and each of its their respective officers, directors, agents and employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”)each, forthwith on demand, an "INDEMNIFIED PARTY") from and against any and all damages, losses, claims, judgmentstaxes, liabilities liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of an Indemnified Party) and disbursements (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”referred to as "INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out the acquisition by the Buyer and its assignees of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefromReceivables, excluding, however, :
(i) Purchase and Sale Indemnified Amounts to the extent resulting final judgment of a court of competent jurisdiction holds that (A) such Indemnified Amounts resulted primarily from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification, or (B) such Purchase Indemnified Amounts resulted primarily from, arose primarily out of, or would not have occurred but for: (x) any representation or warranty of such Indemnified Party being materially incorrect, (y) the failure by such Indemnified Party to perform or observe any covenant in this Agreement required to be performed or observed by it, and Sale Indemnified Party, (z) any breach by the Buyer of its duties and obligations hereunder;
(ii) recourse with respect to any Receivable Indemnified Amounts to the extent that such Receivable is the same includes losses in respect of Receivables which prove to be uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor Obligor; and
(except as iii) taxes imposed by the country and state or province in which such Indemnified Party's principal executive office is located, on or measured by the overall net income, capital or assets of such Indemnified Party; provided, however, that nothing contained in this sentence shall limit the liability of the Originator or the Sub-Servicer or limit the recourse of the Buyer and its assignees to the Originator or Sub-Servicer for amounts otherwise specifically provided to be paid by the Originator or (for so long as the Originator shall be the Sub-Servicer) the Sub-Servicer under the terms of this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoinggenerality of the foregoing indemnification, the Originator shall indemnify each Purchase and Sale the Indemnified Party Parties for Purchase and Sale Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to the Originator or the Sub-Servicer) relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator or (for so long as the Originator shall be the Sub-Servicer) the Sub-Servicer (or any officers of its officersthe Originator or (for so long as the Originator shall be the Sub-Servicer) the Sub-Servicer) under or in connection with this Agreement Agreement, any Periodic Report or any other Transaction Document, or any written information or report delivered by the Originator or (for so long as the Originator shall be the Sub-Servicer) the Sub-Servicer pursuant hereto or theretohereto, which shall have been false or incorrect in any respect when made or deemed made;
(cb) the failure by the Originator or (for so long as the Originator shall be the Sub-Servicer) the Sub-Servicer to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the Contract related Contractthereto, or the nonconformity of any Receivable generated by the Originator or the related Contract included therein with any such applicable law, rule or regulation;
(c) any failure of the Originator or (for so long as the Originator shall be the Sub-Servicer) the Sub-Servicer to perform its duties or obligations in accordance with the provisions of this Agreement;
(d) any products liability or similar claim arising out of or in connection with merchandise, insurance or services which are the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by the Originator free and clear subject of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafterContract;
(e) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcybankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s Receivable or the related Contract’s 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 services sale of the merchandise or service related to any such Receivable or the furnishing of or failure to furnish such merchandise or services;
(f) the commingling of Collections of Receivables at any time with other funds;
(g) any product liability claim investigation, litigation or proceeding related to or arising out from this Agreement, the transactions contemplated hereby, the use of the proceeds of a Purchase, the ownership of the Receivables or any other investigation, litigation or proceeding relating to the Originator in connection with services that are the subject which any Indemnified Party becomes involved as a result of any Receivable generated by of the Originator; andtransactions contemplated hereby;
(h) any tax inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or governmental fee otherwise from any legal action, suit or charge proceeding; and/or
(other than i) any tax excluded pursuant to clause (iii) Sub-Servicer Default described in the proviso to the preceding sentenceSection 6.1(b), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law.--------------
Appears in 1 contract
Indemnities by the Originator. Without limiting any other rights which the Company Originator Indemnified Parties may have hereunder or under applicable lawLaw, the each Originator hereby agrees agrees, jointly and severally, to indemnify the Company SPV and each of its successors, transferees and assigns and all officers, directors, employees shareholders, controlling persons, employees, counsel and other agents (each of any of the foregoing Persons being individually called a (collectively, “Purchase and Sale Originator Indemnified PartyParties”), forthwith on demand, ) from and against any and all damages, losses, claims, judgmentsliabilities, liabilities and related costs and expenses, including reasonable attorneys’ fees (which attorneys may be employees of any Originator Indemnified Party) and disbursements (all of the foregoing being collectively called referred to as “Purchase and Sale Originator Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between any Originator and any of the Originator Indemnified Parties or between any of the Originator Indemnified Parties and any third party, in each case arising out of or as a result of this Agreement, the failure of other Transaction Documents, the Originator to perform its obligations under this Agreement ownership or maintenance, either directly or indirectly, by the SPV or any other Transaction Document, Originator Indemnified Party of any interest in any Conveyed Receivable and Related Assets or arising out any of the claims asserted against a Purchase and Sale Indemnified Party relating to the other transactions contemplated herein hereby or therein or the use of proceeds thereof or therefromthereby, excluding, however, (i) Purchase and Sale Originator Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Originator Indemnified Party, Party or (ii) recourse with respect to any Receivable to the extent that such Receivable is for uncollectible on account of insolvencyReceivables, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receiptsExcluded Taxes. Without limiting the generality of the foregoing, the each Originator shall indemnify each Purchase and Sale Originator Indemnified Party for Purchase and Sale Originator Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, which shall have been false or incorrect in any respect when made or deemed made;
(c) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by the Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the services related to any such Receivable or the furnishing of or failure to furnish such services;
(g) any product liability claim arising out of or in connection with services that are the subject of any Receivable generated by the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law.
Appears in 1 contract
Samples: Sale Agreement (Greif Inc)
Indemnities by the Originator. Without limiting any other rights which the Company may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Company, the Purchaser, the Agent and each of its their respective assigns, officers, directors, employees and agents (each of the foregoing Persons being individually called a “"Purchase and Sale Indemnified Party”"), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “"Purchase and Sale Indemnified Amounts”) "), regardless of whether any such Purchase and Sale Indemnified Amount is the result of a Purchase and Sale Indemnified Party's negligence, strict liability or other acts or omissions of a Purchase and Sale Indemnified Party, awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting fromfollowing:
(a) the transfer by the Originator of an interest in any Receivable or Related Right to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, thereto (including any information contained in a Purchase Report) which shall have been false or incorrect in any material respect when made, deemed made or deemed madedelivered;
(c) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an a perfected ownership interest in the Receivables generated by the Originator and Related Rights free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) the failure of the Originator to filefile with respect to itself, or any delay by the Originator in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the OriginatorOriginator or Related Rights, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s Receivables or the related Contract’s Contracts not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from or relating to the services related transaction giving rise to any such Receivable or relating to collection activities with respect to any Receivable (if such collection activities were performed by the furnishing Originator or any of its Affiliates acting as Servicer or failure to furnish such servicesby any agent or independent contractor retained by the Originator or any of its Affiliates);
(g) any product products liability claim or other claim, investigation, litigation or proceeding arising out of or in connection with goods, insurance or services that are secure or relate to any Receivable;
(h) any litigation, proceeding or investigation against the subject Originator or in respect of any Receivable generated by the Originator; andor Related Right;
(hi) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentencebelow), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase purchase, contribution or ownership of the Receivables generated by the Originator or any Related Security Right connected with any such Receivables;
(j) any failure of the Originator, individually or as Servicer, to perform its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document; and
(k) the commingling of any Collections at any time with other funds; excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of a Purchase and Sale Indemnified Party, (ii) any indemnification which has the effect of recourse for non-payment of the Receivables due to credit reasons to the Originator (except as otherwise specifically provided under this Section 9.1) and (iii) any tax based upon or measured by net income or gross receipts. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, Originator shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party as a result of such loss, claim, damage or liability to the maximum extent permitted under applicable law. Promptly after receipt by a Purchase and Sale Indemnified Party under this Article IX of notice of any claim or the commencement of any action arising out of or as a result of any of paragraphs (a) through (j) above, the Purchase and Sale Indemnified Party shall, if a claim in respect thereof is to be made against the Originator under this Article IX, notify the Originator in writing of the claim or the commencement of that action; provided, however, that the failure to notify the Originator shall not relieve it from any liability which it may have under this Article IX except to the extent it has been materially prejudiced by such failure and, provided, further, that the failure to notify the Originator shall not relieve it from any liability which it may have to a Purchase and Sale Indemnified Party otherwise than under this Article IX. If any such claim or action shall be brought against a Purchase and Sale Indemnified Party, the Originator shall be entitled to participate therein and, to the extent that it wishes, to assume the defense thereof with counsel satisfactory to the Purchase and Sale Indemnified Party. After notice from the Originator to the Purchase and Sale Indemnified Party of its election to assume the defense of such claim or action, the Originator shall not be liable to the Purchase and Sale Indemnified Party under this Article IX for any legal or other expenses subsequently incurred by Purchase and Sale Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. The Originator shall not (i) without the prior written consent of the relevant Purchase and Sale Indemnified Party or Parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the Purchase and Sale Indemnified Party or Parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each Purchase and Sale Indemnified Party from all liability arising out of such claim, action, suit or proceeding or (ii) be liable for any settlement of any such action affected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment of the plaintiff in any such action, the Originator agrees to indemnify and hold harmless any indemnified party from and against any Purchase and Sale Indemnified Amounts relating thereto.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Minnesota Power & Light Co)
Indemnities by the Originator. Without limiting any other rights which that the Company Acquirer or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable law, the Originator hereby agrees agrees, subject to the exclusions set forth below, to indemnify the Company and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, Party from and against any and all claims, damages, losses, claims, judgments, liabilities and related costs and expenses, losses and liabilities (including reasonable attorneys’ fees and disbursements legal costs) arising out of, relating to or resulting from any of the following (all of the foregoing being collectively called referred to as “Purchase and Sale Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:):
(a) subject to Section 2.3 hereof, the transfer by failure of any Purchased Portfolio Asset to meet the Originator Eligibility Criteria as of an interest in any Receivable to any Person other than the Companyits Purchase Date;
(b) subject to Section 2.3 hereof, the breach failure of any representation or warranty or statement made or deemed made by the Originator (or any of its officers) ), under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, which shall Origination Purchase Document to have been false or incorrect in any respect true and correct when made or deemed made;
(c) the failure by the Originator to comply with any applicable law, rule or regulation with respect to the servicing, administration, enforcement or other dealing with any Receivable generated by the Originator Purchased Loans; or the related Contract, or the nonconformity failure of any Receivable generated by the Originator or the related Contract with Purchased Loans to conform to any such applicable law, rule or regulation;
(d) the failure to sell, assign, transfer and convey to the Acquirer ownership in the Purchased Assets, and to vest in and maintain vested in in, the Company an Acquirer a valid and enforceable first priority perfected ownership interest in the Receivables generated Purchased Loans and Related Security (including upon registration by the Originator Acquirer of any Registrable Transfers) free and clear of any Adverse Claim, Claim (other than a Permitted Security Interest or Adverse Claim in favour of the Acquirer) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution in favour of such Receivables or at any time thereafterGovernmental Authority other than a Permitted Security Interest;
(e) the failure to filehave filed, or any delay in filing, financing statements Financing Statements, Registrable Transfers or other similar instruments or documents under the UCC any applicable laws of any applicable jurisdiction or other applicable laws with respect to the Purchased Assets or any Receivables or purported Receivables generated by the Originatorpart thereof, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) failure of the Obligor Originator to the payment of any Receivable perform its covenants, duties or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it obligations in accordance with its terms), the provisions of this Agreement or any other claim resulting from Origination Purchase Document or to perform its covenants, duties or obligations under the services related to any such Receivable or the furnishing of or failure to furnish such servicesPurchased Portfolio Assets;
(g) any product liability claim arising out of or in connection with services that are the subject of any Receivable generated by the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated failure by the Originator or its assignee to repurchase any Related Security connected with any such Receivables. If for any reason Purchased Portfolio Assets pursuant to Section 2.3, and the indemnification provided above in this Section 9.1 is unavailable Originator shall pay on demand (without duplication) to a Purchase and Sale each Indemnified Party or is insufficient any and all amounts necessary to hold indemnify such Purchase and Sale Indemnified Party harmlessfrom and against any and all Indemnified Amounts arising out of, then relating to or resulting from, any of the Originatorforegoing provided, severally and for itselfhowever, that the foregoing obligation of indemnification shall contribute not include Indemnified Amounts to the amount paid extent resulting from gross negligence or payable by wilful misconduct on the part of such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable lawParty.
Appears in 1 contract
Samples: Mortgage Sale Agreement
Indemnities by the Originator. Without limiting any other rights which the Company that NFRRC may have hereunder or under applicable law, the Originator NFC hereby agrees to indemnify the Company NFRRC and each of its officers, directors, agents and employees and agents its assigns under the Further Transfer and Servicing Agreement (each of the foregoing Persons being individually called a “Purchase and Sale an "Indemnified Party”), forthwith on demand, ") from and against any and all damages, losses, claims, judgmentstaxes, liabilities liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “Purchase and Sale referred to as "Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Documentthe acquisition, either directly or arising out indirectly, by NFRRC or its assigns under the Further Transfer and Servicing Agreements of an interest in the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefromDesignated Receivables, excluding, however, :
(ia) Purchase and Sale Indemnified Amounts to the extent resulting that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the extent the same includes losses in respect of Designated Receivables that are uncollectible; or
(c) taxes imposed by the jurisdiction in which such Purchase and Sale Indemnified Party's principal executive office is located, (ii) recourse with respect to any Receivable on or measured by the overall net income of such Indemnified Party to the extent that the computation of such Receivable taxes is uncollectible on account consistent with the Intended Characterization; provided, however, that nothing contained in this sentence shall limit the liability of insolvency, bankruptcy NFC or lack limit the recourse of creditworthiness of the related Obligor (except as NFRRC to NFC for amounts otherwise specifically provided to be paid by NFC under the terms of this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoinggenerality of the foregoing indemnification, the Originator NFC shall indemnify each Purchase and Sale Indemnified Party NFRRC for Purchase and Sale Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to NFC) relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator NFC (or any officers of its officersNFC) under or in connection with this Agreement Agreement, any other Transaction Document or any other Transaction Document, or any written information or report delivered by the Originator NFC pursuant hereto or thereto, which shall have been false or incorrect in any respect when made or deemed made;
(cb) the failure by the Originator NFC to comply with any applicable law, rule rule, order, writ, judgment, award, injunction, decree or regulation with respect to any Designated Receivable generated by the Originator or the Contract related Contractthereto, or the nonconformity of any Designated Receivable generated by the Originator or the related Contract included therein with any such applicable law, rule or regulationregulation or any failure of the NFC to keep or perform any of its obligations, express or implied, with respect to any Contract;
(c) any failure of NFC to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(d) any products liability, personal injury or damage suit or similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract;
(e) any dispute, claim, counterclaim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Designated Receivable (including, without limitation, a defense based on such Designated Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Designated Receivable or the furnishing or failure to furnish such merchandise or services;
(f) the commingling of Collections of Designated Receivables at any time with other funds;
(g) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of the sale of Designated Receivables, the ownership of the Designated Receivables or any other investigation, litigation or proceeding relating to NFC in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(h) any inability to litigate any claim against any Obligor in respect of any Designated Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(i) any failure of NFC to acquire and maintain legal and equitable title to, and ownership of any Designated Receivable and the Related Security free and clear of any Adverse Claim (other than as created hereunder); or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action (other than as a result of the actions or inactions of NFRRC or a Subsequent Transferee);
(j) any failure to vest and maintain vested in NFRRC, or to transfer to NFRRC, legal and equitable title to, and ownership of, the Company an ownership interest in Designated Receivables and the Receivables generated by the Originator Related Security free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(ek) 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 with respect to any Receivables or purported Receivables generated by Designated Receivable and the Originator, whether at the time of any purchase or contribution or at any subsequent timeRelated Security;
(fl) any dispute, claim, offset action or defense (other than discharge in bankruptcy) omission by NFC which reduces or impairs the rights of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance NFRRC with its terms), or any other claim resulting from the services related respect to any such Designated Receivable or the furnishing of or failure to furnish such services;
(g) any product liability claim arising out of or in connection with services that are the subject value of any Receivable generated by the Originatorsuch Designated Receivable; and
(hm) any tax or governmental fee or charge (other than attempt by any tax excluded pursuant Person to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of void the purchase hereunder under statutory provisions or ownership common law or equitable action; and
(n) any claim by any party arising from the activities of the Receivables generated by the Originator NFC in administering, servicing or collecting any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable lawDesignated Receivable.
Appears in 1 contract
Samples: Receivables Sale Agreement (Navistar Financial Corp)
Indemnities by the Originator. Without limiting any other rights which the Company Originator Indemnified Parties may have hereunder or under applicable lawLaw, the each Originator hereby agrees agrees, jointly and severally, to indemnify the Company SPV and each of its successors, transferees and assigns and all officers, directors, employees shareholders, controlling persons, employees, counsel and other agents (each of any of the foregoing Persons being individually called a (collectively, “Purchase and Sale Originator Indemnified PartyParties”), forthwith on demand, ) from and against any and all damages, losses, claims, judgmentsliabilities, liabilities and related costs and expenses, including reasonable attorneys’ fees (which attorneys may be employees of any Originator Indemnified Party) and disbursements (all of the foregoing being collectively called referred to as “Purchase and Sale Originator Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between any Originator and any of the Originator Indemnified Parties or between any of the Originator Indemnified Parties and any third party, in each case arising out of or as a result of this Agreement, the failure of other Transaction Documents, the Originator to perform its obligations under this Agreement ownership or maintenance, either directly or indirectly, by the SPV or any other Transaction Document, Originator Indemnified Party of any interest in any Conveyed Receivable and Related Assets or arising out any of the claims asserted against a Purchase and Sale Indemnified Party relating to the other transactions contemplated herein hereby or therein or the use of proceeds thereof or therefromthereby, excluding, however, (i) Purchase and Sale Originator Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Originator Indemnified Party, Party or (ii) recourse with respect to any Receivable to the extent that such Receivable is for uncollectible on account of insolvencyReceivables, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receiptsExcluded Taxes. Without limiting the generality of the foregoing, the each Originator shall indemnify each Purchase and Sale Originator Indemnified Party for Purchase and Sale Originator Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the any Originator (or any officers of its officers) any Originator under or in connection with this Agreement Agreement, any of the other Transaction Documents, any Servicer Report or any other Transaction Document, or any written information or report delivered by the any Originator pursuant hereto hereto, or thereto, pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made;
(cb) the failure by the any Originator to comply with any applicable law, rule or regulation Law with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Conveyed Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulationLaw;
(dc) the failure to vest and maintain vested in the Company an SPV a first priority, perfected ownership interest in the Conveyed Receivables generated by the Originator and Related Assets, free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(ed) the failure by any Originator, following a request from the Agent, to file, or any delay in filing, financing statements statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Conveyed Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent timeand Related Assets;
(fe) any dispute, claim, offset or defense (other than discharge in bankruptcybankruptcy or as a result of the uncollectibility of any Receivable) of the Obligor to the payment of any Conveyed Receivable or purported Receivable generated by the Originator (including, without limitation, including a defense based on such Receivable’s Receivable or the related Contract’s Contract not being a the 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 merchandise or services related to any such Receivable or the furnishing of or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Conveyed Receivables or the related Contracts restricting assignment of any Conveyed Receivables;
(f) any failure of any Originator to perform its duties or obligations in accordance with the provisions hereof;
(g) any product 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 Receivable generated by the Originator; andConveyed Receivable;
(h) the transfer to the SPV of an interest in any tax or governmental fee or charge (Receivable other than an Eligible Receivable;
(i) the failure by any tax excluded Originator to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Conveyed Receivables or related Contracts;
(j) the failure of any Originator to pay when due any sales, excise or personal property taxes payable in connection with any of the Conveyed Receivables;
(k) any repayment by any Originator Indemnified Party of any amount previously distributed in reduction of Net Investment which such Originator Indemnified Party believes in good faith is required to be made;
(l) the commingling by any Originator of Collections at any time with any other funds;
(m) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of purchases by any Originator, the ownership of the Asset Interest, or any Conveyed Receivable or Related Asset;
(n) failure of any (i) Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes or (ii) Existing Xxx Account Bank to remit the Collections in the Existing Xxx Accounts to a Blocked Account within two (2) Business Days of receipt, in each case, pursuant to clause the instructions of the Servicer, the SPV, any Originator or the Agent (iii) in the proviso to the preceding sentence)extent such Person is entitled to give such instructions in accordance with the terms hereof, all interest of the Second Tier Agreement and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise any applicable Blocked Account Agreement) whether by reason of the purchase exercise of set-off rights or ownership otherwise;
(o) 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 Receivables generated failure of any Originator to qualify to do business or file any notice of business activity report or any similar report;
(p) any attempt by any Person to void, rescind or set-aside any transfer by any Originator to the SPV of any Conveyed Receivable or Related Assets under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(q) any action taken by any Originator or the Servicer (if the Servicer is an Affiliate or designee of an Originator) in the enforcement or collection of any Conveyed Receivable (unless such action was directed by the Originator Agent or the Investors in bad faith or with gross negligence or willful misconduct);
(r) the use of the proceeds of any Related Security connected with Purchase hereunder; or
(s) any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount all amounts paid or payable by such Purchase and Sale Indemnified Party the SPV pursuant to Sections 9.3, 9.4 or 9.5 of the maximum extent permitted under applicable lawSecond Tier Agreement.
Appears in 1 contract
Samples: Sale Agreement (Greif, Inc)
Indemnities by the Originator. (a) Without limiting any other rights which the Company Purchaser may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Purchaser and each of its officersassigns and transferees (each, directors, employees and agents (each of the foregoing Persons being individually called a an “Purchase and Sale Indemnified Party”), forthwith on demand, from and against any and all damages, losses, claims, judgmentslosses, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called referred to as “Purchase and Sale Indemnified Amounts”) ), awarded against or incurred by any of them Indemnified Party arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or the purchase of any other Transferred Assets or in respect of any Transferred Asset or any CNB Customer Transaction Document, or including, without limitation, arising out of or as a result of any of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, following:
(i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence characterization in any Monthly Report, Asset Interest Report or willful misconduct other written statement of any Transferred Asset as an Eligible Asset or as included in the Net Conforming Pool Balance or the Net Non-Conforming Pool Balance which, as of the date on which such information was certified, is not an Eligible Asset or should not be included in the part of such Purchase and Sale Indemnified PartyNet Conforming Pool Balance or the Net Non-Conforming Pool Balance, as applicable;
(ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty or statement made or deemed made by the Originator (or any of its officers) under or in connection with this Agreement or any of the other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, Documents which shall have been false or incorrect in any respect when made or deemed made;
(ciii) the failure by the Originator to comply with any applicable law, rule or regulation of any Governmental Entity with respect to any Receivable generated by the Originator Transferred Asset, Related Property or the related Contract, CNB Customer Transaction Documents; or the nonconformity failure of any Receivable generated by the Originator Transferred Asset or the related Contract with Related Property to conform to any such applicable law, rule or regulation;; WAREHOUSE LOAN SALE AGREEMENT
(div) the failure to vest and maintain vested in the Company an Purchaser absolute ownership interest in of the Receivables generated by Transferred Assets and Related Property that are, or that purport to be, the Originator subject of a Purchase under this Agreement, free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(ev) 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 with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent timeOriginator Collateral;
(fvi) any dispute, claim, offset or defense (other than discharge in bankruptcybankruptcy of the related CNB Customer) of the Obligor a CNB Customer to the payment of any Receivable Transferred Asset, whether or purported Receivable generated by the Originator not raised in connection with any litigation or arbitration (including, without limitation, a defense based on such Receivable’s Transferred Asset or the related Contract’s CNB Customer Transaction Documents not being a legal, valid and binding obligation of such Obligor CNB Customer enforceable against it in accordance with its terms), or any other claim resulting from the services related relating to any collection activities with respect to such Receivable or the furnishing of or failure to furnish such servicesTransferred Asset;
(gvii) any product liability dispute, claim, offset or defense (other than discharge in bankruptcy or insolvency of the related Mortgagor) of a Mortgagor to the payment of any Mortgage Loan (including, without limitation, a defense based on such Mortgage Loan not being a legal, valid and binding obligation of such Mortgagor enforceable against it in accordance with its terms), or any other claim relating to collection activities with respect to such Mortgage Loan;
(viii) any failure of the Originator to comply with any term, provision or covenant contained in this Agreement, any other Transaction Document or any CNB Customer Transaction Document to which it is a party, or to perform its duties or obligations under the Transaction Documents, CNB Customer Transaction Documents or Take-Out Commitments;
(ix) any claim or suit arising out of or in connection with services that are any Transferred Asset or the subject Mortgage Loan related thereto;
(x) the commingling of Collections of Transferred Assets (or any Related Property) at any time with other funds;
(xi) any investigation, litigation or proceeding related to this Agreement, any other Transaction Document or the use of proceeds of Purchases or in respect of any Receivable generated Transferred Asset or any other Originator Collateral;
(xii) any claim brought by any Person other than an Indemnified Party arising from any activity by the Originator in servicing, administering or collecting any Transferred Asset or Related Property;
(xiii) the sale by the Originator, or the purchase by the Purchaser, of any Transferred Asset or Related Property in violation of any applicable law, rule or regulation of any Governmental Entity or any contractual obligation of the Originator; andWAREHOUSE LOAN SALE AGREEMENT
(hxiv) any tax Adverse Claim attaching to any Transferred Asset or governmental fee or charge (any other Originator Collateral with respect thereto, other than any tax excluded pursuant a Lien created under the Transaction Documents;
(xv) except to clause (iii) the extent such taxes constitute income taxes incurred by such Indemnified Party arising out of or as a result of this Agreement or the security interest in the proviso Originator Collateral, (A) the failure to pay when due any and all stamp, sales, transfer, excise, personal property and other taxes and fees payable by the preceding sentence)Originator in connection with the Originator Collateral or the execution, all delivery, filing and recording of this Agreement or the other agreements and documents to be delivered hereunder (including any UCC financing statements) and (B) 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 penalties thereon expenses) arising therefrom or with respect thereto, and all out-of-pocket costs and expensesto the extent caused by the Originator’s actions or failure to act in breach of this Agreement;
(xvi) any failure by the Purchaser to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Purchaser of any Transferred Assets or Related Property, including the reasonable fees and expenses of counsel in defending against the sameor any attempt by any Person to void any such transfer under any statutory provision or common law or equitable action, which may arise by reason including, without limitation, any provision of the purchase Bankruptcy Code;
(xvii) the inability of any Indemnified Party to exercise their rights under this Agreement to review any CNB Customer Transaction Document which contains a confidentiality provision that purports to restrict its ability to do so, or ownership any litigation or proceeding relating to any such confidentiality provision;
(xviii) the failure of any Mortgage Loan to be purchased (A) under the original Take-Out Commitment applicable to such Mortgage Loan for any reason (other than as a result of a Mortgage Loan which was an Eligible Mortgage Loan at the time it was sold be the Originator to the Purchaser having subsequently become a Defaulted Mortgage Loan or as the result of the Receivables generated bankruptcy of the related CNB Customer) including as a result of a change in the market value of such Mortgage Loan due to changes in interest rates, and (B) for an amount equal to the Take-Out Price first reported to the Program Agent when the Asset related to such Mortgage Loan first became a Pool Asset;
(xix) the failure of any Interest Rate Hedge to fully protect any Mortgage Loan, AOT Mortgage Pool or AOT Security from the effect of changes in interest rates;
(xx) the possession of the Mortgage Documents, AOT Participation Certificates, AOT Takeout Assignments or COLB Participation Certificates by any person other than the Facility Custodian;
(xxi) the failure of any Mortgaged Property to be covered by adequate hazard insurance; WAREHOUSE LOAN SALE AGREEMENT
(xxii) the failure of any Mortgage Loan, AOT Security or Take-Out Commitment to constitute, for any reason (including, without limitation, any fraud on the part of any Mortgagor of any Mortgage Loan, any CNB Customer or the Originator), the legal, valid and binding obligation of the Mortgagor of such Mortgage Loan, the issuer of such AOT Security or Investor, as applicable, enforceable against such Mortgagor, issuer or Investor in accordance with its terms (subject to Enforceability Exceptions);
(xxiii) the failure of any Mortgage Document with respect to any Mortgage Loan (including, without limitation, the related Mortgage File) to be accurate and complete;
(xxiv) the failure of any AOT Security to be issued with respect to any AOT Mortgage Pool for any reason (other than as a result of the bankruptcy of the related CNB Customer) including as a result of a change in the market value of such AOT Mortgage Pool due to changes in interest rates;
(xxv) the failure of any AOT Security to be purchased (A) under the original Mandatory Take-Out Commitment applicable to such AOT Security for any reason (other than as a result of the bankruptcy of the related CNB Customer) including as a result of a change in the market value of such AOT Security or the related AOT Mortgage Pool due to changes in interest rates, and (B) for an amount equal to the Take-Out Price first reported to the Program Agent when a participation interest in the AOT Mortgage Pool with respect to such AOT Security first became a Pool Asset; and
(xxvi) the release of funds from any CNB Customer Deposit Account or AOT Securities Account to any CNB Customer which is the subject of any bankruptcy or insolvency proceeding, absent a court order directing that such funds be released to such CNB Customer.
(b) Notwithstanding the foregoing, the Originator shall not be liable to any Indemnified Party for any Indemnified Amounts, (i) to the extent 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 such Indemnified Party, (ii) resulting from a default by the Mortgagor under the terms of any Mortgage Loan which was an Eligible Mortgage Loan at the time it was sold by the Originator to the Purchaser, (iii) resulting from the failure of any CNB Customer to pay amounts due under the terms of any CNB Customer Loan or from the impairment of any Underlying Collateral, in each case as a result of the bankruptcy of such CNB Customer, (iv) resulting from the failure of any Mortgage Loan to be purchased under a Take-Out Commitment due to a default by the Mortgagor thereof under the terms of such Mortgage Loan which was an Eligible Mortgage Loan at the time it was sold by the Originator to the Purchaser or the bankruptcy of the related CNB Customer, or (v) constituting taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party.
(c) Any amounts subject to the indemnification provisions of this Section 6.01 shall be paid by the Originator to the related Indemnified Party within five (5) Business Days WAREHOUSE LOAN SALE AGREEMENT following demand therefor accompanied by reasonable supporting documentation with respect to such amounts. Notwithstanding anything to the contrary in this Agreement, solely for purposes of this Section 6.01, any representation, warranty or covenant qualified by materiality or the occurrence of a Material Adverse Effect shall not be so qualified.
(d) No Indemnified Party shall have any liability (whether in contract, tort or otherwise) to the Originator or any Related Security connected of its security holders or creditors for or in connection with the transactions contemplated hereby, except to the extent such liability is determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnified Party’s gross negligence or willful misconduct or breach of its obligations under the Purchase Agreement. In no event, however, shall any such Receivables. If Indemnified Party be liable on any theory of liability for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party special, indirect, consequential or is insufficient to hold such Purchase and Sale Indemnified Party harmlesspunitive damages (including, then the Originatorwithout limitation, severally and for itselfany loss of profits, shall contribute to the amount paid business or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable lawanticipated savings).
Appears in 1 contract
Samples: Warehouse Loan Sale Agreement (Colonial Bancgroup Inc)
Indemnities by the Originator. Without limiting any other rights which the Company Buyer may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Buyer and each of its officers, directors, employees agents and agents assigns (each of collectively, the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”"INDEMNIFIED PARTIES"), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”referred to as "INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale an Indemnified Party relating to or resulting from any of the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, following (excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, Party or (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under for in this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:uncollectible Purchased Receivables):
(ai) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of reliance on any representation or warranty made or deemed made by the Originator (or any of its officers) under or in connection with this Agreement Agreement, any Purchase Notice or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or theretohereto, which shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(cii) the failure by the Originator 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, rule or regulation with respect to any Receivable generated by Purchased Receivable, the Originator Related Security or the related Contractother Purchased Assets, or the nonconformity of any Receivable generated by Purchased Receivable, the Originator Related Security or the related Contract other Purchased Assets with any such applicable law, rule or regulation;
(diii) the failure to vest and maintain vested in the Company Buyer or to transfer to the Buyer an ownership interest in the Receivables generated by which are, or are purported to be, Purchased Receivables, together with all Collections, Related Security and the Originator other Purchased Assets, free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act Lien (except in favor of the Company, the Issuer Buyer or the Administrator its assignees) whether existing at the time of the purchase or contribution Purchase of such Receivables Receivable or at any time thereafter;
(eiv) the failure to file, or any delay in filingfiling (other than solely as a result of the action or inaction of an Indemnified Party), financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws against the Originator with respect to any Receivables or Related Security which are, or are purported Receivables generated by the Originatorto be, Purchased Assets, whether at the time of any purchase or contribution Purchase or at any subsequent time;
(fv) any dispute, claim, offset or defense (other than discharge in bankruptcy) failure of the Obligor Originator, as Servicer or otherwise, to the payment of any Receivable perform its duties or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it obligations in accordance with its terms), or any other claim resulting from the services related to any such Receivable or the furnishing provisions of or failure to furnish such services;Article VI; and
(gvi) any product 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 services the Financed Vehicle that are is the subject of any Receivable generated by the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso Contract. Any amounts subject to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses indemnification provisions of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated this Section 7.1 shall be paid by the Originator or any Related Security connected with any such Receivables. If for any reason to the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale applicable Indemnified Party or is insufficient to hold within two (2) Business Days following such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable lawParty's demand therefor.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Arcadia Financial LTD)
Indemnities by the Originator. Without limiting any other rights which the Company that any CMSC Indemnified Party may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Issuer and each of its successors, permitted transferees and assigns, and all officers, directors, shareholders, controlling Persons, employees and agents of any of the foregoing (each of the foregoing Persons being individually called Persons, a “Purchase and Sale CMSC Indemnified Party”), forthwith on demand, from and against any and all damages, losses, claimsclaims (whether on account of settlements or otherwise), actions, suits, demands, judgments, liabilities (including penalties), obligations or disbursements of any kind or nature and related costs and expenses, expenses (including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”disbursements) awarded against or incurred by any of them them, arising out of or as a result of the failure any of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out following (all of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale collectively, “CMSC Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:Losses”):
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or under any of its officers) under or in connection with this Agreement the Transaction Documents to which it is a party, any Fee Monthly Originator Report or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto (including in its capacity as Servicer) with respect to the Originator or theretothe CMSC Fee Purchased Assets, which shall have having been false untrue or incorrect in any respect when made or deemed to have been made;
(cb) the failure by the Originator to comply with any material applicable lawRequirement of Law, rule or regulation with respect to any Receivable generated by the Originator CMSC Fee Purchased Asset or the related Contract, or the nonconformity any failure of any Receivable generated by the Originator or the related Contract a CMSC Fee Purchased Asset to comply with any such applicable law, rule or regulationmaterial Requirement of Law as of the date of sale of such CMSC Fee Purchased Asset hereunder;
(dc) the failure to vest and maintain vested in the Company an Issuer a valid ownership interest in the Receivables generated by the Originator CMSC Fee Purchased Assets, free and clear of any Adverse Claim, other than an Adverse Claim Lien (including without limitation any such failure arising solely as from a result circumstance described in the definition of an act Permitted Exceptions);
(d) any failure of the Company, Originator to perform its duties or obligations in accordance with the Issuer or the Administrator whether existing at the time provisions of the purchase Transaction Documents or contribution of such Receivables or at any time thereafterContract, in each case to which it is a party;
(e) 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 the transfer of any Receivables or purported Receivables generated by CMSC Fee Purchased Assets to the OriginatorIssuer, whether at the time of any purchase or contribution sale or at any subsequent time;
(f) the failure by the Originator to pay when due any disputetaxes owing by it (including without limitation sales, claimexcise or property taxes) payable in connection with the CMSC Fee Purchased Assets, offset other than any such taxes, assessments or defense charges that are being diligently contested in good faith by appropriate proceedings, for which adequate reserves in accordance with GAAP have been set aside on its books and that have not given rise to any Liens (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its termsPermitted Liens), or any other claim resulting from the services related to any such Receivable or the furnishing of or failure to furnish such services;
(g) any product liability claim arising out of or reduction in connection with services that are the subject Unpaid Balance of any Fee Receivable generated by included in the Originator; andCMSC Fee Purchased Assets as a result of any Concession;
(h) any tax product liability, strict liability or governmental fee personal injury claim in connection with the service that is the subject of any CMSC Fee Purchased Asset; and
(i) any investigation, litigation or charge proceeding related to any use by CMSC of the proceeds of any Purchase made hereunder. Notwithstanding the foregoing (and with respect to clause (ii) below, without prejudice to the rights that the Issuer may have pursuant to the other provisions of this Agreement or the provisions of any of the other Transaction Documents), in no event shall any CMSC Indemnified Party be indemnified for any CMSC Indemnified Losses (i) resulting from negligence or willful misconduct on the part of such CMSC Indemnified Party, (ii) to the extent the same includes losses in respect of CMSC Fee Purchased Assets and reimbursement therefor that would constitute credit recourse to the Originator for the amount of any CMSC Fee Receivable not paid by the related Obligor or (iii) resulting from the action or omission of the Servicer (unless the Servicer is the Originator or an Affiliate thereof (other than any tax excluded pursuant to clause (iii) in the proviso to Issuer or the preceding sentenceIssuer), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with any such Receivables). If for any reason the indemnification provided above in this Section 9.1 10.1 is unavailable to a Purchase and Sale an CMSC Indemnified Party or is insufficient to hold such Purchase and Sale an CMSC Indemnified Party harmless, then the Originator, severally and for itself, Originator shall contribute to the maximum amount payable or paid to such CMSC Indemnified Party as a result of such loss, claim, damage or payable liability in such proportion as is appropriate to reflect not only the relative benefits received by such Purchase and Sale CMSC Indemnified Party to on the maximum extent permitted under applicable lawone hand and the Originator on the other hand, but also the relative fault of such CMSC Indemnified Party and the Originator, and any other relevant equitable considerations.
Appears in 1 contract
Indemnities by the Originator. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawApplicable Law, the Originator hereby agrees to indemnify the Company and Buyer, each of its officers, directors, employees, agents, employees and agents respective assigns, the Administrative Agent and each Lender (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on within 10 days of demand, from and against any and all damages, claims, losses, claims, judgments, liabilities liabilities, penalties and related costs and expenses, expenses (including reasonable attorneys’ fees and disbursements Attorney Costs) (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Documentof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting fromin connection with:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made or deemed made by the Originator (or any employee, officer or agent of its officersthe Originator) under or in connection with this Agreement or any of the other Transaction DocumentDocuments, or any written information or report delivered by or on behalf of the Originator pursuant hereto or thereto, thereto which shall have been false untrue or incorrect in any respect when made or deemed mademade or delivered;
(b) the transfer by the Originator of any interest in any Pool Receivable or Related Right other than the transfer of any Pool Receivable and Related Security to the Buyer pursuant to this Agreement and the grant of a security interest to the Buyer pursuant to this Agreement;
(c) the failure by the Originator to comply with any applicable law, rule or regulation Applicable Law with respect to any Pool Receivable generated by the Originator or the related Contract, ; or the nonconformity failure of any Pool Receivable generated by the Originator or the related Contract with to conform to any such applicable law, rule or regulationApplicable Law;
(d) the failure to vest and maintain vested lack of an enforceable ownership interest, or a first priority perfected lien, in the Company an ownership interest in the Pool Receivables generated (and all Related Security) originated or acquired by the Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) 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 Applicable Laws with respect to any Receivables Pool Receivable or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent timeRelated Rights;
(f) any suit or claim related to the Pool Receivables originated or acquired by the Originator (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable originated or acquired by the Originator);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by in the Originator Pool Receivables (including, without limitation, including a defense based on such Pool Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the property, products or services to such Receivable or the furnishing or failure to furnish such property, products or services;
(h) any failure of the Originator to perform any 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;
(i) any failure of the Originator to enforce any of its rights and remedies under the Sub-Originator Sale Agreement;
(j) the commingling of Collections of Pool Receivables at any time with other funds;
(k) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(l) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or in respect of any Pool Receivable or any Related Rights;
(m) any failure of the Originator to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Documents;
(n) any claim brought by any Person other than a Purchase and Sale Indemnified Party arising from any activity by the Originator or any Affiliate of the Originator in servicing, administering or collecting any Pool Receivable;
(o) the failure by the Originator to pay when due any taxes owing by the Originator, including sales, excise or personal property taxes;
(p) 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 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 any such Pool Receivable or the furnishing of or failure to furnish any such servicesgoods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(gq) [reserved];
(r) [reserved];
(s) any product liability claim arising out under Section 5.03 of the Receivables Financing Agreement; or
(t) any action taken by the Administrative Agent as attorney-in-fact for the Originator pursuant to this Agreement or any other Transaction Document; provided that such indemnity shall exclude (i) Purchase and Sale Indemnified Amounts to the extent a final non-appealable judgment of a court of competent jurisdiction holds that such Purchase and Sale Indemnified Amounts resulted from the bad faith, gross negligence or willful misconduct by the Purchase and Sale Indemnified Party seeking indemnification, (ii) Purchase and Sale Indemnified Amounts to the extent the same includes losses in connection with services respect of Pool Receivables that are uncollectible solely on account of the subject insolvency, bankruptcy, lack of any Receivable generated creditworthiness or other financial inability to pay of the related Obligor and (iii) Purchase and Sale Indemnified Amounts arising from a claim by the Originator; and
(h) any tax or governmental fee or charge one Purchase and Sale Indemnified Party against another Purchase and Sale Indemnified Party (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending actions against the sameAdministrative Agent in its capacity as Administrative Agent or similar capacity and also excluding any action, which may arise by reason of the purchase claim or ownership of the Receivables generated by the dispute involving Originator or any Related Security connected with of its affiliates or resulting from any such Receivablesaction or inaction by any Servicer or any of its affiliates). If for any reason (other than the proviso above) the foregoing indemnification provided above in this Section 9.1 is unavailable to a any Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party it harmless, then the Originator, severally and for itself, Originator shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of the Originator and its Affiliates, on the one hand, and such Purchase and Sale Indemnified Party, on the other hand, in the matters contemplated by this Agreement as well as the relative fault of the Originator and its Affiliates and such Purchase and Sale Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations. The reimbursement, indemnity and contribution obligations of the Originator under this Section shall be in addition to any liability which the Originator may otherwise have, shall extend upon the same terms and conditions to Purchase and Sale Indemnified Party, and shall be binding upon and inure to the maximum extent permitted benefit of any successors, assigns, heirs and personal representatives of the Originator and the Purchase and Sale Indemnified Parties. Any indemnification or contribution under applicable lawthis Section shall survive the termination of this Agreement.
Appears in 1 contract
Indemnities by the Originator. Without limiting any other rights which the Company Buyer may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Buyer and its assignees (including the Agent and each of its Purchaser) and their respective officers, directors, agents and employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, an "INDEMNIFIED PARTY") from and against any and all damages, losses, claims, judgmentstaxes, liabilities liabilities, costs, expenses and related costs and expensesfor all other amounts payable, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”referred to as "INDEMNIFIED AMOUNTS") awarded against or actually incurred by any of them arising out of or as a result any of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, following:
(i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator or the Sub-Servicer (or any officers of its officersthe Originator or the Sub-Servicer) under or in connection with this Agreement or Agreement, any other Transaction Document, any Monthly Report, any Weekly Report or any other written information or report delivered by the Originator or the Sub-Servicer pursuant hereto or thereto, which shall have been false or incorrect in any respect when made or deemed made;
(cii) the failure by the Originator or the Sub-Servicer to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the Contract related Contractthereto, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulation;
(diii) the any failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by of the Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at Sub-Servicer to perform its duties or obligations in accordance with the time provisions of the purchase this Agreement or contribution of such Receivables or at any time thereafterother Transaction Document;
(eiv) any products liability or similar claim arising out of or in connection with merchandise, insurance or services which are the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC subject of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent timeContract;
(fv) any dispute, claim, offset (other than discounts for prompt payment granted in the ordinary course of the Originator's business) or defense (other than discharge in bankruptcybankruptcy of the Obligor) of the any Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s Receivable or the related Contract’s 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 services related to any such Receivable or the furnishing of or failure to furnish such the underlying goods and services;
(gvi) the commingling of Collections of Receivables at any time with other funds;
(vii) any product liability claim investigation, litigation or proceeding related to or arising out of from this Agreement or in connection with services that are any other Transaction Document, the subject of any Receivable generated by transactions contemplated hereby or thereby, the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason use of the purchase or proceeds of a Purchase, the ownership of the Receivables generated or any other investigation, litigation or proceeding relating to the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby or thereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) the sale to the Buyer of any Receivable other than an Eligible Receivable (except for Receivables sold at closing in exchange for equity issuances under SECTION 1.2(A)(II)); or
(x) the failure to vest and maintain vested in the Buyer, or to transfer to the Buyer, legal and equitable title to, and ownership of, a first priority perfected ownership interest in the Receivables sold or purported to be sold hereunder, and the Related Security and the Collections in respect thereof, free and clear of any Adverse Claim (other than as created under the Purchase Agreement); EXCLUDING, HOWEVER, the following:
(a) 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 the Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the extent the same includes losses in respect of Eligible Receivables that prove to be uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(c) taxes imposed by the Originator jurisdiction in which such Indemnified Party's principal executive office is located, on or any Related Security connected with any measured by the overall net income of such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted that the computation of such taxes is consistent with (i) the characterization of the Purchases as true sales and (ii) the characterization of the transactions under applicable law.the Purchase Agreement as creating indebtedness of the Buyer for purposes of taxation;
Appears in 1 contract
Indemnities by the Originator. Without limiting any other rights which that the Company Company, the Agent, the Master Servicer or any of their respective Affiliates (together with their respective officers, directors, shareholders and lenders, each, an "INDEMNIFIED PARTY") may have hereunder or under applicable law, the each Originator hereby agrees jointly and severally to indemnify the Company and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, Party from and against any and all damages, losses, claims, judgmentslosses and liabilities (including, liabilities and related costs and expenseswithout limitation, including reasonable attorneys’ fees and disbursements ' fees) (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”referred to as "INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or as a result resulting from any of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting fromfollowing:
(a) the transfer by sale of any Account which purports to be part of a Purchased Batch but which is not, at the Originator date of such sale, an interest Eligible Account described in any Receivable to any Person other than the CompanySection 5.01(j);
(b) the breach of any representation or warranty made or deemed made by the any Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, and not relating to a Purchased Account which shall have been false or incorrect in any material respect when made or deemed made;
(c) the failure by the any Originator or any Batch Account to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulationBatch Account;
(d) the failure to vest and maintain vested in the Company an a perfected ownership interest in each Account included in a Transferred Batch and the Receivables generated by the Originator Collections in respect thereof, free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafterLiens;
(e) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset set-off or defense (other than discharge in bankruptcy) of the Obligor to the payment payment, in whole or in part, of any Receivable or purported Receivable generated by the Originator Account (including, without limitation, a defense based on such Receivable’s or the related Contract’s Account not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), obligation) or any other claim resulting from the services or merchandise related to any such Receivable Account or the furnishing of or failure to furnish such servicesservices or merchandise or relating to collection activities with respect to such Account (if such collection activities were performed by any Originator or any of its Affiliates acting as Primary Servicer), PROVIDED, HOWEVER, this clause (e) shall not be deemed to include any dispute, claim, set-off or defense to the payment of any Account (i) arising out of the financial inability of an Obligor to pay its obligations represented by such Account including, without limitation, a discharge in bankruptcy, or (ii) arising after the sale of such Account to the Company hereunder and arising solely as a result of actions taken by any member of the Lender Group;
(f) a failure of any Orginator, including, without limitation, the Primary Servicer's actions on behalf of the Originators under Section 2.05(b) of this Agreement with respect to Primary Servicer Responsibilities, to perform its duties or obligations in accordance with the provisions hereof or to perform its duties or obligations hereunder; or
(g) the commingling by any product liability claim arising out Originator of or in connection Collections at any time with services that are the subject other funds of any Receivable generated by the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator such or any Related Security connected with other Originator, PROVIDED, HOWEVER, that in all events there shall be excluded from the foregoing indemnification any such Receivables. If for any reason claims, losses or liabilities resulting solely from the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale gross negligence or willful misconduct of an Indemnified Party or is insufficient to hold such Purchase and Sale which constitutes recourse for an uncollectible Purchased Account. Such Indemnified Party harmlessshall notify the Primary Servicer, then on behalf of the OriginatorOriginators, severally and for itselfof such claim, provided that the failure to so notify shall contribute not affect or invalidate the indemnity granted pursuant to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable lawthis Section 6.02.
Appears in 1 contract
Samples: Originator Purchase and Contribution Agreement (National Diagnostics Inc)
Indemnities by the Originator. Without limiting any other rights which ----------------------------- that the Company Purchaser may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Purchaser (and its assignees) and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demandan after-tax basis, from and against any and all damages, losses, claims, judgments, losses and liabilities and related costs and expenses, (including reasonable attorneys’ fees and disbursements ' fees) (all of the foregoing being collectively called “Purchase and Sale referred to as "Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under ------------------- resulting from this Agreement or in respect of any Receivable, any related Contract or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefromPurchased Asset, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Purchaser or such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to as the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receiptscase may be. Without limiting or being limited by the foregoing, the Originator shall indemnify each Purchase and Sale pay on demand to the Purchaser or any Indemnified Party for Purchase any and Sale all amounts necessary to indemnify such Person from and against any and all Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of reliance on any representation or warranty or statement made or deemed made by the Originator (or any of its their respective officers) under or in connection with this Agreement or in any other Transaction Documentcertificate, report or any written information or report document delivered by the Originator pursuant hereto or theretothat, which in any such case, shall have been false or incorrect in any respect when made or deemed made;
(cb) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulation;
(dc) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by the Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) the failure to filehave filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC Uniform Commercial Code of any applicable jurisdiction or other applicable laws with respect to the Purchaser's interest in any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent timePurchased Asset;
(fd) any dispute, claim, offset or defense (other than discharge in bankruptcybankruptcy of the Obligor) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s Receivable or the related Contract’s Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to any such Receivable or the furnishing of or failure to furnish such merchandise or services;
(ge) any product failure of the Originator to perform its duties or obligations under this Agreement or the applicable Contract;
(f) any products liability or warranty claim arising out of or in connection with merchandise, insurance or services that are the subject of any Receivable generated Receivable;
(g) the commingling of Collections of Receivables at any time with other funds of the Originator, regardless or whether such commingling shall be permitted by the Originator; andTransaction Documents;
(h) any tax investigation, litigation or governmental fee proceeding related to this Agreement or charge in respect of any Receivable or any Contract;
(other than any tax excluded pursuant to clause (iiii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated payment by the Originator or Purchaser of any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then taxes owed by the Originator, severally including, but not limited to, federal, state or local income taxes, excise taxes or business taxes; or
(j) the failure to vest, and for itselfmaintain vested, shall contribute in the Purchaser a valid and enforceable (A) ownership interest or (B) a first priority perfected security interest in the items described in Section 2.1(a) (except to the amount paid or payable by extent such Purchase and Sale Indemnified Party ----------- first priority perfected security interest was assigned to the maximum extent permitted Administrator pursuant to the Loan Agreement). Notwithstanding the foregoing, the Originator shall not under applicable law.any circumstances indemnify the Purchaser (or its assignees) for any Indemnified Amounts that result solely from a default by an Obligor with respect to a Receivable other than as described in clause (d) above or resulting from the circumstances ---------- described in clause (b) or (e) above. ---------- ---
Appears in 1 contract
Indemnities by the Originator. Without limiting any other rights which the Company may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”"PURCHASE AND SALE INDEMNIFIED PARTY"), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”"PURCHASE AND SALE INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excludingEXCLUDING, howeverHOWEVER, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) any indemnification which has the effect of recourse with respect for non-payment of the Receivables to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor indemnitor (except as otherwise specifically provided under this AgreementSECTION 9.1) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify indemnifies each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(c) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by the Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the services related to any such Receivable or the furnishing of or failure to furnish such services;
(g) any product liability claim arising out of or in connection with services that are the subject of any Receivable generated by the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Werner Holding Co Inc /De/)
Indemnities by the Originator. Without limiting any other rights which the Company may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Company, the Lender and each of its their respective assigns, officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”"PURCHASE AND SALE INDEMNIFIED PARTY"), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “"PURCHASE AND SALE INDEMNIFIED AMOUNTS"), regardless of whether any such Purchase and Sale Indemnified Amounts”) Amount is the result of a Purchase and Sale Indemnified Party's negligence, strict liability or other acts or omissions of a Purchase and Sale Indemnified Party, awarded against or incurred by any of them arising out of or as a result of the failure of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting fromfollowing:
(a) the transfer by the Originator of an interest in any Receivable or Related Right to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, thereto (including any information contained in a Purchase Report) which shall have been false or incorrect in any material respect when made, deemed made or deemed madedelivered;
(c) the failure by the Originator to comply with any applicable law, rule or regulation with respect to any Receivable generated by the Originator or the related ContractIsuzu Loan Documents, or the nonconformity of any Receivable generated by the Originator or the related Contract Isuzu Loan Documents with any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an a perfected ownership interest in the Receivables generated by the Originator and Related Rights free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) the failure of the Originator to filefile with respect to itself, or any delay by the Originator in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the OriginatorOriginator or Related Rights, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s Receivables or the related Contract’s Isuzu Loan Documents not being a legal, valid and binding obligation of such the Obligor enforceable against it in accordance with its terms), or any other claim resulting from or relating to the services related transaction giving rise to any such Receivable or relating to collection activities with respect to any Receivable (if such collection activities were performed by the furnishing Originator or any of its Affiliates acting as Servicer or failure to furnish such servicesby any agent or independent contractor retained by the Originator or any of its Affiliates);
(g) any product products liability claim or other claim, investigation, litigation or proceeding arising out of or in connection with goods, insurance or services that are secure or relate to any Receivable;
(h) any litigation, proceeding or investigation against the subject Originator or in respect of any Receivable generated by the Originator; andor Related Right;
(hi) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentencebelow), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase purchase, contribution or ownership of the Receivables generated by the Originator or any Related Security Right connected with any such Receivables;
(j) any failure of the Originator, individually or as Servicer, to perform its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document; and
(k) the commingling of any Collections at any time with other funds; EXCLUDING, HOWEVER, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of a Purchase and Sale Indemnified Party, (ii) any indemnification which has the effect of recourse for non-payment of the Receivables due to credit reasons to the Originator (except as otherwise specifically provided under this SECTION 9.1) and (iii) any tax based upon or measured by net income or gross receipts. If for any reason the indemnification provided above in this Section SECTION 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, Originator shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party as a result of such loss, claim, damage or liability to the maximum extent permitted under applicable law. Promptly after receipt by a Purchase and Sale Indemnified Party under this ARTICLE IX of notice of any claim or the commencement of any action arising out of or as a result of any of paragraphs (a) through (j) above, the Purchase and Sale Indemnified Party shall, if a claim in respect thereof is to be made against the Originator under this ARTICLE IX, notify the Originator in writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that the failure to notify the Originator shall not relieve it from any liability which it may have under this ARTICLE IX except to the extent it has been materially prejudiced by such failure and, PROVIDED, FURTHER, that the failure to notify the Originator shall not relieve it from any liability which it may have to a Purchase and Sale Indemnified Party otherwise than under this ARTICLE IX. If any such claim or action shall be brought against a Purchase and Sale Indemnified Party, the Originator shall be entitled to participate therein and, to the extent that it wishes, to assume the defense thereof with counsel satisfactory to the Purchase and Sale Indemnified Party. After notice from the Originator to the Purchase and Sale Indemnified Party of its election to assume the defense of such claim or action, the Originator shall not be liable to the Purchase and Sale Indemnified Party under this ARTICLE IX for any legal or other expenses subsequently incurred by Purchase and Sale Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. The Originator shall not (i) without the prior written consent of the relevant Purchase and Sale Indemnified Party or Parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the Purchase and Sale Indemnified Party or Parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each Purchase and Sale Indemnified Party from all liability arising out of such claim, action, suit or proceeding or (ii) be liable for any settlement of any such action affected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment of the plaintiff in any such action, the Originator agrees to indemnify and hold harmless any indemnified party from and against any Purchase and Sale Indemnified Amounts relating thereto.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Allete)
Indemnities by the Originator. Without limiting any other rights which the Company that any CMSC Indemnified Party may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Buyer and each of its successors, permitted transferees and assigns, and all officers, directors, shareholders, controlling Persons, employees and agents of any of the foregoing (each of the foregoing Persons being individually called Persons, a “Purchase and Sale Indemnified Party”"CMSC INDEMNIFIED PARTY"), forthwith on demand, from and against any and all damages, losses, claimsclaims (whether on account of settlements or otherwise), actions, suits, demands, judgments, liabilities (including penalties), obligations or disbursements of any kind or nature and related costs and expenses, expenses (including reasonable attorneys’ ' fees and disbursements (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”disbursements) awarded against or incurred by any of them them, arising out of or as a result of the failure any of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out following (all of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:collectively, "CMSC INDEMNIFIED LOSSES"):
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or under any of its officers) under or in connection with this Agreement the Transaction Documents to which it is a party, any Receivables Activity Report or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto (including in its capacity as Servicer) with respect to the Originator or theretothe CMSC Purchased Assets, which shall have having been false untrue or incorrect in any respect when made or deemed to have been made; PROVIDED, HOWEVER, that the Originator's obligation to make a CMSC Noncomplying Asset Adjustment pursuant to Section 4.3(a) with respect to any representation made in Section
6.1(1) as to Eligible Receivables having been incorrect when made shall be the only remedy available to the Buyer or its assignees relating to such incorrect representation;
(cb) the failure by the Originator to comply with any material applicable law, rule or regulation applicable to the Originator with respect to any Receivable generated by the Originator CMSC Purchased Asset or the related Contract, or the nonconformity any failure of any Receivable generated by the Originator or the related Contract a CMSC Purchased Asset to comply with any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by the Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely regulation as a result of an act of the Company, the Issuer or the Administrator whether existing at the time date of the purchase or contribution sale of such Receivables or at any time thereafterCMSC Purchased Asset hereunder;
(e) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the services related to any such Receivable or the furnishing of or failure to furnish such services;
(g) any product liability claim arising out of or in connection with services that are the subject of any Receivable generated by the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law.
Appears in 1 contract
Samples: Purchase Agreement (PHH Corp)
Indemnities by the Originator. Without limiting any other rights which the Company that any CMSC Indemnified Party may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Buyer and each of its successors, permitted transferees and assigns, and all officers, directors, shareholders, controlling Persons, employees and agents of any of the foregoing (each of the foregoing Persons being individually called Persons, a “Purchase and Sale CMSC Indemnified Party”), forthwith on demand, from and against any and all damages, losses, claimsclaims (whether on account of settlements or otherwise), actions, suits, demands, judgments, liabilities (including penalties), obligations or disbursements of any kind or nature and related costs and expenses, expenses (including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”disbursements) awarded against or incurred by any of them them, arising out of or as a result of the failure any of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out following (all of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale collectively, “CMSC Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:Losses”):
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or under any of its officers) under or in connection with this Agreement the Transaction Documents to which it is a party, any Receivables Activity Report or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto (including in its capacity as Servicer) with respect to the Originator or theretothe CMSC Purchased Assets, which shall have having been false untrue or incorrect in any respect when made or deemed to have been made; provided, however, that the Originator’s obligation to make a CMSC Noncomplying Asset Adjustment pursuant to Section 4.3(a) with respect to any representation made in Section
6.1(1) as to Eligible Receivables having been incorrect when made shall be the only remedy available to the Buyer or its assignees relating to such incorrect representation;
(cb) the failure by the Originator to comply with any material applicable law, rule or regulation applicable to the Originator with respect to any Receivable generated by the Originator CMSC Purchased Asset or the related Contract, or the nonconformity any failure of any Receivable generated by the Originator or the related Contract a CMSC Purchased Asset to comply with any such applicable law, rule or regulationregulation as of the date of sale of such CMSC Purchased Asset hereunder;
(dc) the failure to vest and maintain vested in the Company an Buyer a valid ownership interest in the Receivables generated by the Originator CMSC Purchased Assets, free and clear of any Adverse Claim, other than an Adverse Claim Lien arising solely as through the Originator or anyone claiming through or under the Originator (including without limitation any such failure arising from a result circumstance described in the definition of an act Permitted Exceptions);
(d) any failure of the Company, Originator to perform its duties or obligations in accordance with the Issuer or the Administrator whether existing at the time provisions of the purchase Transaction Documents or contribution of such Receivables or at any time thereafterContract, in each case to which it is a party;
(e) 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 the transfer of any Receivables or purported Receivables generated by CMSC Purchased Assets to the OriginatorBuyer, whether at the time of any purchase or contribution sale or at any subsequent time;
(f) the failure by the Originator to pay when due any disputetaxes owing by it (including sales, claimexcise or property taxes) payable in connection with the CMSC Purchased Assets, offset other than any such taxes, assessments or defense charges that are being diligently contested in good faith by appropriate proceedings, for which adequate reserves in accordance with GAAP have been set aside on its books and that have not given rise to any Liens (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its termsPermitted Liens), or any other claim resulting from the services related to any such Receivable or the furnishing of or failure to furnish such services;
(g) any product liability claim arising out of or reduction in connection with services that are the subject Unpaid Balance of any Receivable generated included in the ARSC Purchased Assets as a result of (i) any cash discount or any adjustment by the Originator; and, (ii) any offsetting account payable of the Originator to an Obligor, (iii) a set-off in respect of any claim by, or defense or credit of, the related Obligor against the Originator (whether such claim, defense or credit arises out of the same or a related or an unrelated transaction) or (iv) the obligation of the Originator to pay to the related Obligor any rebate or refund;
(h) any tax product liability or governmental fee personal injury claim in connection with the service that is the subject of any CMSC Purchased Asset; and
(i) any investigation, litigation or charge proceeding related to any use by CMSC of the proceeds of any Purchase made hereunder. Notwithstanding anything to the contrary in this Agreement, any representations, warranties and covenants made by the Originator in this Agreement or the other Transaction Documents that are qualified by or limited to events or circumstances that have, or are reasonably likely to have, given rise to a Material Adverse Effect shall (solely for purposes of the indemnification obligations set forth in this Section 10.1) be deemed not to be so qualified or limited. Notwithstanding the foregoing (and with respect to clause (ii) below, without prejudice to the rights that the Buyer may have pursuant to the other provisions of this Agreement or the provisions of any of the other Transaction Documents), in no event shall any CMSC Indemnified Party be indemnified for any CMSC Indemnified Losses (i) resulting from negligence or willful misconduct on the part of such CMSC Indemnified Party, (ii) to the extent the same includes losses in respect of CMSC Purchased Assets and reimbursement therefor that would constitute credit recourse to the Originator for the amount of any CMSC Receivable not paid by the related Obligor or (iii) resulting from the action or omission of the Servicer (unless the Servicer is the Originator or an Affiliate thereof (other than any tax excluded pursuant to clause (iii) in the proviso to Buyer, ARSC or the preceding sentenceIssuer), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with any such Receivables). If for any reason the indemnification provided above in this Section 9.1 10.1 is unavailable to a Purchase and Sale an CMSC Indemnified Party or is insufficient to hold such Purchase and Sale an CMSC Indemnified Party harmless, then the Originator, severally and for itself, Originator shall contribute to the maximum amount payable or paid to such CMSC Indemnified Party as a result of such loss, claim, damage or payable liability in such proportion as is appropriate to reflect not only the relative benefits received by such Purchase and Sale CMSC Indemnified Party to on the maximum extent permitted under applicable lawone hand and the Originator on the other hand, but also the relative fault of such CMSC Indemnified Party and the Originator, and any other relevant equitable considerations.
Appears in 1 contract
Samples: Purchase Agreement (Cendant Corp)
Indemnities by the Originator. Without limiting any other rights which the Company Indemnified Parties may have hereunder or under applicable lawLaw, the Originator hereby agrees to indemnify the Company Investors, the Letter of Credit Bank, the Agent, the Administrator, the Program Support Providers and each of its their respective officers, directors, employees employees, counsel and other agents (each of the foregoing Persons being individually called a collectively, “Purchase and Sale Indemnified PartyParties”), forthwith on demand, ) from and against any and all damages, losses, claims, judgmentsliabilities, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called referred to as “Purchase and Sale Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between the Originator (including, in its capacity as the Servicer or any Affiliate of the Originator acting as Servicer) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, the failure other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Agent or any Investor of the Originator to perform its obligations under this Agreement Asset Interest or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the other transactions contemplated herein hereby or therein or the use of proceeds thereof or therefromthereby, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, as finally determined by a court of competent jurisdiction, or (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under in this Agreement) and (iii) any tax based upon or measured by net income property, or gross receiptsfor uncollectible Receivables. Without limiting the generality of the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (including, the Originator or any of its officersAffiliates in the capacity as the Servicer) or any officers of the Originator (including, in its capacity as the Servicer or any Affiliate of the Originator acting as Servicer) under or in connection with this Agreement Agreement, the Receivable Purchase Agreement, any of the other Transaction Documents, any Servicer Report or any other Transaction Document, or any written information or report delivered by the Originator Servicer pursuant hereto hereto, or thereto, pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made;
(cb) the failure by the Originator (including, in its capacity as the Servicer or any Affiliate of the Originator acting as Servicer) to comply with any applicable law, rule or regulation Law with respect to any Receivable generated by the Originator or the related Contract, or the nonconformity of any Receivable generated by the Originator or the related Contract with any such applicable law, rule or regulationLaw;
(dc) the failure (i) to vest and maintain vested in the Company an Agent, on behalf of the Investors, a first priority, perfected ownership interest in the Receivables generated by Asset Interest free and clear of any Adverse Claim or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Originator Agent, for the benefit of the Investors, in the Affected Assets, free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(ed) the failure to file, or any delay in filing, financing statements statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by of the Originator, whether at the time of any purchase or contribution or at any subsequent timeAffected Assets;
(fe) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, including a defense based on such Receivable’s Receivable or the related Contract’s Contract not being a the 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 merchandise or services related to any such Receivable or the furnishing of or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Receivables or the related Contracts restricting assignment of any Receivables;
(f) any failure of the Servicer to perform its duties or obligations in accordance with the provisions hereof;
(g) any product 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 Receivable generated by the Originator; andReceivable;
(h) the transfer of an interest in any tax or governmental fee or charge (Receivable other than an Eligible Receivable;
(i) the failure by the Originator (individually or as Servicer) to comply with any tax excluded term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Receivables or related Contracts;
(j) the sum of the Net Investment plus the L/C Participation Amount plus the Required Reserves exceeding the sum of the Net Pool Balance plus the Cash Collateralization Amount at any time;
(k) the failure or the Originator to pay when due any sales taxes, excise or personal property taxes payable in connection with any of the Receivables;
(l) any repayment by any Indemnified Party of any amount previously distributed in reduction of Net Investment which such Indemnified Party believes in good faith is required to be made;
(m) the commingling by the Originator or the Servicer of Collections of Receivables at any time with any other funds;
(n) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments by the Originator, the ownership of the Asset Interest, or any Affected Asset;
(o) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes pursuant to clause the instructions of the Servicer, the Originator or the Agent (iii) in the proviso to the preceding sentence), all interest extent such Person is entitled to give such instructions in accordance with the terms hereof and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise any applicable Blocked Account Agreement) whether by reason of the purchase exercise of set-off rights or ownership otherwise;
(p) 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 Receivables generated failure of the Originator to qualify to do business or file any notice of business activity report or any similar report;
(q) any attempt by any Person to void, rescind or set-aside any transfer by the Originator to the Agent of any Receivable or Related Security under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(r) any action taken by the Originator or the Servicer (if the Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party Affiliate or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then designee of the Originator, severally and ) in the enforcement or collection of any Receivable;
(s) the use of the proceeds of any Investment or Reinvestment; or
(t) the transactions contemplated by Section 2.1 hereof being characterized as other than a loan giving rise to Indebtedness of the Originator for itself, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to purposes of the maximum extent permitted under applicable lawCode.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Overnite Corp)
Indemnities by the Originator. Without limiting any other rights which the Company that any CMSC Indemnified Party may have hereunder or under applicable law, the Originator hereby agrees to indemnify the Company Buyer and each of its successors, permitted transferees and assigns, and all officers, directors, shareholders, controlling Persons, employees and agents of any of the foregoing (each of the foregoing Persons being individually called Persons, a “Purchase and Sale CMSC Indemnified Party”), forthwith on demand, from and against any and all damages, losses, claimsclaims (whether on account of settlements or otherwise), actions, suits, demands, judgments, liabilities (including penalties), obligations or disbursements of any kind or nature and related costs and expenses, expenses (including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”disbursements) awarded against or incurred by any of them them, arising out of or as a result of the failure any of the Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out following (all of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale collectively, “CMSC Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:Losses”):
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or under any of its officers) under or in connection with this Agreement the Transaction Documents to which it is a party, any Monthly Originator Report or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto (including in its capacity as Servicer) with respect to the Originator or theretothe CMSC Purchased Assets, which shall have having been false untrue or incorrect in any respect when made or deemed to have been made;
(cb) the failure by the Originator to comply with any material applicable law, rule or regulation Requirement of Law with respect to any Receivable generated by the Originator CMSC Purchased Asset or the related Contract, or the nonconformity any failure of any Receivable generated by the Originator or the related Contract a CMSC Purchased Asset to comply with any material Requirement of Law as of the date of sale of such applicable law, rule or regulationCMSC Purchased Asset hereunder;
(dc) the failure to vest and maintain vested in the Company an Buyer a valid ownership interest in the Receivables generated by the Originator CMSC Purchased Assets, free and clear of any Adverse Claim, other than an Adverse Claim Lien (including without limitation any such failure arising solely as from a result circumstance described in the definition of an act Permitted Exceptions);
(d) any failure of the Company, Originator to perform its duties or obligations in accordance with the Issuer or the Administrator whether existing at the time provisions of the purchase Transaction Documents or contribution of such Receivables or at any time thereafterContract, in each case to which it is a party;
(e) 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 the transfer of any Receivables or purported Receivables generated by CMSC Purchased Assets to the OriginatorBuyer, whether at the time of any purchase or contribution sale or at any subsequent time;
(f) the failure by the Originator to pay when due any disputetaxes owing by it (including without limitation sales, claimexcise or property taxes) payable in connection with the CMSC Purchased Assets, offset other than any such taxes, assessments or defense charges that are being diligently contested in good faith by appropriate proceedings, for which adequate reserves in accordance with GAAP have been set aside on its books and that have not given rise to any Liens (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its termsPermitted Liens), or any other claim resulting from the services related to any such Receivable or the furnishing of or failure to furnish such services;
(g) any product liability claim arising out of or reduction in connection with services that are the subject Unpaid Balance of any Receivable generated by included in the Originator; andKF Purchased Assets as a result of any Concession;
(h) any tax product liability, strict liability or governmental fee personal injury claim in connection with the service that is the subject of any CMSC Purchased Asset; and
(i) any investigation, litigation or charge proceeding related to any use by CMSC of the proceeds of any Purchase made hereunder. Notwithstanding the foregoing (and with respect to clause (ii) below, without prejudice to the rights that the Buyer may have pursuant to the other provisions of this Agreement or the provisions of any of the other Transaction Documents), in no event shall any CMSC Indemnified Party be indemnified for any CMSC Indemnified Losses (i) resulting from negligence or willful misconduct on the part of such CMSC Indemnified Party, (ii) to the extent the same includes losses in respect of CMSC Purchased Assets and reimbursement therefor that would constitute credit recourse to the Originator for the amount of any CMSC Receivable not paid by the related Obligor or (iii) resulting from the action or omission of the Servicer (unless the Servicer is the Originator or an Affiliate thereof (other than any tax excluded pursuant to clause (iii) in the proviso to Buyer or the preceding sentenceIssuer), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by the Originator or any Related Security connected with any such Receivables). If for any reason the indemnification provided above in this Section 9.1 10.1 is unavailable to a Purchase and Sale an CMSC Indemnified Party or is insufficient to hold such Purchase and Sale a CMSC Indemnified Party harmless, then the Originator, severally and for itself, Originator shall contribute to the maximum amount payable or paid to such CMSC Indemnified Party as a result of such loss, claim, damage or payable liability in such proportion as is appropriate to reflect not only the relative benefits received by such Purchase and Sale CMSC Indemnified Party to on the maximum extent permitted under applicable lawone hand and the Originator on the other hand, but also the relative fault of such CMSC Indemnified Party and the Originator, and any other relevant equitable considerations.
Appears in 1 contract
Samples: Purchase Agreement (Realogy Corp)
Indemnities by the Originator. Without limiting any other rights which the Company Purchaser may have hereunder or under applicable lawlaw (including, without limitation, the right to recover damages for breach of contract), the Originator hereby agrees to indemnify the Company Purchaser, its successors, transferees and each of its assigns, and the officers, directors, agents, and employees and agents (each of the foregoing Persons being individually called a (each, an “Purchase and Sale Originator Indemnified Party”), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable external attorneys’ fees and disbursements (all of the foregoing being collectively called referred to as “Purchase and Sale Originator Indemnified Amounts”) awarded against or incurred by any of them Originator Indemnified Party to the extent relating to or arising out of from or as a result of this Agreement or the acquisition by the Purchaser of the Transferred Assets, subject to the proviso set forth below. Without limiting the generality of the foregoing indemnification, the Originator shall indemnify the Originator Indemnified Parties for Originator Indemnified Amounts to the extent relating to or resulting from any of the following:
(i) the failure of any Purchased Receivable represented by the Originator to perform its obligations be an Eligible Receivable hereunder to be an “Eligible Receivable” at the time of such representation;
(ii) reliance on any representation or warranty made or deemed made by the Originator under this Agreement or any other Transaction Document, or arising out of the claims asserted against Facility Document to which it is a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) recourse with respect to any Receivable to the extent that such Receivable is uncollectible on account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing, the Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(a) the transfer by the Originator of an interest in any Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any written information or report delivered by the Originator pursuant hereto or thereto, party which shall have been false or incorrect in any respect when made or deemed made;
(ciii) the failure by the Originator to comply with any term, provision or covenant contained in this Agreement or any other Facility Document to which it is party or with any applicable law, tariff, rule or regulation with respect to any Receivable generated by the Originator or Purchased Receivable, the related Contract, or the Related Security, or the nonconformity of any Receivable generated by the Originator or Purchased Receivable, the related Contract or the Related Security with any such applicable law, tariff, rule or regulation;
(div) 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 services or goods the provision or sale of which gave rise to or are the subject of any Purchased Receivable or Contract;
(v) the failure to pay when due any taxes, including, without limitation, sales, excise or personal property taxes payable by the Originator in connection with the Transferred Assets;
(vi) the payment by such Originator 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 Originator’s actions or failure to act in breach of this Agreement;
(vii) the failure to vest and maintain vested in the Company an Purchaser or to transfer to the Purchaser a first priority perfected ownership interest in the Receivables generated by the Originator Purchased Receivables, together with all Collections, Related Security and other Transferred Assets free and clear of any Adverse ClaimLien except a Lien in favor of any Affected Party, other than an Adverse Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether existing at the time of the purchase or contribution of such Receivables Purchased Receivable arose or at any time thereafter;
(eviii) 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 naming the Originator as “Debtor” with respect to any Receivables or purported Receivables generated by the Originator, whether at the time of any purchase or contribution or at any subsequent timeTransferred Assets;
(fix) any dispute, claim, offset or defense (other than discharge in bankruptcyas a result of the bankruptcy or insolvency of the related Obligor) of the an Obligor to the payment of any Purchased Receivable or purported Receivable generated by the Originator (including, without limitation, a defense based on such Receivable’s or the related Contract’s Purchased Receivable 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 services related to any such Purchased Receivable or the furnishing of or failure to furnish such servicesgoods or services (other than as a result of the bankruptcy or insolvency of the related Obligor);
(gx) the commingling of Collections with any other funds;
(xi) any product liability claim arising out failure by the Purchaser to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Purchaser of any Transferred Assets, or any attempt by any Person to void any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision 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 connection with services that are the subject of any Receivable generated by the Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded a Lock-Box pursuant to clause (iii) the instructions of the Program Agent given in accordance with the proviso to Loan and Servicing Agreement, the preceding sentence)applicable Lock-Box Processor Agreement, all interest and penalties thereon Blocked Account Agreement or with respect theretothe other Facility Documents, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise whether by reason of the purchase exercise of setoff rights or ownership otherwise;
(xiii) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of purchases made pursuant to this Agreement or any other Facility Document delivered hereunder or in respect of any of the Receivables generated Transferred Assets;
(xiv) any claim brought by any Person arising from any activity by the Originator in servicing, administering or collecting any Purchased Receivable;
(xv) the transfer by the Originator of any Purchased Receivable in violation of any applicable law, tariff, rule or regulation;
(xvi) the failure of the Originator to furnish accurate and complete documentation (including, without limitation, a Contract or invoice) to any Obligor;
(xvii) the failure of any Lock-Box Processor, Approved Sub-servicer or any Related Security connected other third party with a contractual relationship with the Originator for the acceptance or processing of Collections to remit any such Receivables. If for any reason the indemnification provided above in this Section 9.1 is unavailable Collections received by it to a Purchase and Sale Indemnified Party Lock-Box or is insufficient to hold such Purchase and Sale Indemnified Party harmlessa Deposit Account within two (2) Business Days of receipt; or
(xviii) the amendment, then modification or termination of any tariff or similar contract governing any Purchased Receivable or the activities of the Originator; provided, severally and for itselfhowever, that the Originator shall contribute not be required to the amount paid or payable by such Purchase and Sale indemnify any Originator Indemnified Party to the maximum extent permitted of any amounts (x) resulting from the gross negligence or willful misconduct of such Originator Indemnified Party, or (y) constituting credit recourse for the failure of an Obligor to pay a Purchased Receivable, 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 Originator Indemnified Party by the state or foreign jurisdiction under applicable lawthe laws of which such Originator Indemnified Party is organized or any political subdivision thereof. Any amounts subject to the indemnification provisions of this Section 6.01 shall be paid by the Originator to the related Originator Indemnified Party within thirty (30) Business Days following demand therefor.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Teco Energy Inc)
