Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, and directors (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, expenses, costs, losses and liabilities, including Attorney Costs (all of the foregoing being collectively called “Purchase and Sale Relevant Amounts”) arising out of or resulting from the failure of such Originator to perform its obligations under this Agreement, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from: (a) the failure of any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to have been true and correct as of the date made or deemed made; (b) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to any such applicable law, rule or regulation; (c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originator; (d) any commingling of Collections with other funds; (e) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligor) of an Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates); (f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts; (g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract; (h) the use of any Purchase Price paid to such Originator; (i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement; (j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator; (k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator; (l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or (m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Laws.
Appears in 5 contracts
Samples: Purchase and Sale Agreement (Vistra Corp.), Purchase and Sale Agreement (Vistra Corp.), Purchase and Sale Agreement (Vistra Corp.)
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawApplicable Law, each OriginatorOriginator and Servicer, severally jointly and for itself aloneseverally, hereby agrees to indemnify the Buyer, the Administrative Agent (as assignee of the Buyer for the benefit of the Secured Parties under the ABL Credit Agreement), each Lender and hold harmless the Company and each of its Affiliates, agents, employees, officers, and directors their respective Related Parties (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, ) from and against any and all claimsloss, damagesliability, expensesexpense, costsdamage or injury suffered or sustained by reason of (i) any failure of such Originator to comply with any of its covenants, losses and liabilitiesobligations or agreements contained in this Agreement or any other Loan Document to which it is a party or such Originator’s gross negligence, (ii) the breach of any representation or warranty made or deemed made by such Originator under or in connection with this Agreement or any of the other Loan Documents to which it is a party or (iii) willful misconduct in the performance of its duties or obligations under this Agreement or any other Loan Document to which it is a party, including any judgment, award, settlement, Attorney Costs and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim (all of the foregoing being collectively called referred to as, “Purchase and Sale Relevant Indemnified Amounts”) arising out of or resulting from the failure of such Originator to perform its obligations under this Agreement, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder). Without limiting or being limited by the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentenceforegoing, each Originator, severally for itself alonejointly and severally, shall indemnify pay on demand, to each Purchase and Sale Indemnified Party for any and all amounts necessary to indemnify such Purchase and Sale Relevant Indemnified Party from and against any and all Purchase and Sale Indemnified Amounts relating to or resulting fromfrom any of the following:
(a) the failure breach of any representation or warranty made or deemed made by such Originator (or any employee, officer or agent of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any of the other Transaction Document Loan Documents to which it is a party, or any information or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure transfer by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold interest in any Receivable or the related Contract Related Right sold or purportedly sold to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originator;
(d) any commingling of Collections with other funds;
(e) any dispute, claim, offset or defense (Buyer hereunder other than discharge in bankruptcy the transfer of an Obligor) of an Obligor any Receivable and Related Security to the payment Buyer pursuant to this Agreement and the grant of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or security interest to 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 services related Buyer pursuant to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Laws.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Mallinckrodt PLC), Purchase and Sale Agreement (Mallinckrodt PLC)
Indemnities by the Originators. Without limiting any other rights which that Buyer or any of its Stockholders, any of its assignees (including the Company Secured Parties and the Administrative Agent), or any of their respective officers, directors, employees, attorneys, agents or representatives and transferees, successors and assigns (each, a “Buyer Indemnified Person”) may have hereunder or under applicable law, each Originator, severally and for itself alone, Originator hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, and directors (each of the foregoing Persons being individually called a “Purchase and Sale Buyer Indemnified Party”), forthwith on demand, Person from and against any and all claims, damages, expenses, costs, losses and liabilities, including Attorney Costs (all of the foregoing being collectively called “Purchase and Sale Relevant Amounts”) arising out of Indemnified Amounts that may be claimed or resulting from the failure of asserted against or incurred by any such Originator to perform its obligations under this Agreement, Buyer Indemnified Person in connection with or arising out of the claims asserted against transactions contemplated under this Agreement or under any other Related Document and any actions or failures to act in connection therewith, including any and all associated reasonable legal costs and expenses, or in respect of any Transferred Receivable or any Contract therefor or the use by such Originator of the Sale Price therefor; provided that no Originator shall be liable for any indemnification to a Purchase and Sale Buyer Indemnified Party relating Person to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant extent that any such Indemnified Amounts to the extent, (a) result from such Purchase and Sale Relevant Amounts are Buyer Indemnified Person’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraudjurisdiction, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) constitute recourse for uncollectible or uncollected Transferred Receivables due to the credit risk failure (without cause or justification) or inability on the part of an the related Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables perform its obligations thereunder or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse occurrence of any Purchase and Sale Indemnified Party event of bankruptcy with respect to such Originator for any amounts otherwise specifically provided Obligor. Subject to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), ) and (b) and (c) of the previous proviso in the immediately preceding sentence, but otherwise without limiting the generality of the foregoing, each Originator, severally for itself alone, Originator shall indemnify pay on demand to each Purchase Buyer Indemnified Person any and Sale all Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:
(ai) the failure of reliance on any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Related Document (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or on any other information delivered by such Originator pursuant hereto or thereto that shall have been true and correct as of the date incorrect when made or deemed mademade or delivered;
(bii) the failure by such Originator to comply with any term, provision or covenant contained in this Agreement, any other Related Document or any agreement executed in connection herewith or therewith (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality), any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Transferred Receivable or the related Contract to conform to therefor, or the nonconformity of any Transferred Receivable or the Contract therefor with any such applicable law, rule or regulation;
(ciii) (x) the failure by such Originator to vest and maintain vested in Buyer, or to Transfer to Buyer, valid and properly perfected title to and sole record and beneficial ownership of the Company a First Priority Interest Receivables that constitute Transferred Receivables, together with all Collections in the Sold Receivables generated by such Originatorrespect thereof, free and clear of any Adverse Claim or (y) any Specified Filing;
(d) any commingling of Collections with other funds;
(eiv) any dispute, claim, offset or defense of any Obligor (other than its discharge in bankruptcy of an Obligorbankruptcy) of an Obligor to the payment of any Sold Receivable generated by such Originator that is the subject of a Transfer hereunder (including, without limitation, including (x) a defense based on such Receivable or the related Contract therefor not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its termsterms (other than as a result of a discharge in bankruptcy), or any other claim resulting from the sale of goods the merchandise or services related giving rise to any such Sold Receivable or the furnishing of or failure to furnish such goods merchandise or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by any Originator or any Affiliate thereof acting as the Servicer or a Sub-Servicer) and (y) resulting from or in connection with any Dilution Factors);
(v) any products liability claim or other claim arising out of or in connection with merchandise, insurance or services that is the subject of any Contract;
(vi) the commingling of Collections with respect to Transferred Receivables by any Originator at any time with its other funds or the funds of any other Person;
(vii) any failure by such Originator to cause the filing of, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or any other applicable laws with respect to any Transferred Receivable that is the subject of a Transfer hereunder to the extent that such filing is necessary to maintain the perfection and priority of Buyer in such Receivable, whether at the time of any such Transfer or at any subsequent time;
(viii) any investigation, Litigation or proceeding related to this Agreement or the use of the Sale Price obtained in connection with any Sale or the ownership of Transferred Receivables or Collections with respect thereto or in respect of any Transferred Receivable or Contract therefor;
(ix) any claim brought by any Person other than a Buyer Indemnified Person arising from any activity by such Originator or any of its Affiliates in servicing, administering or by collecting any agent or independent contractor retained by such Originator or its Affiliates)Transferred Receivables;
(fx) any (I) failure of such Originator (x) any Collection Account Bank to perform its duties and obligations in accordance comply with the provisions terms of this the applicable Collection Account Agreement, (y) any Contract Concentration Account Bank to comply with the terms of the applicable Concentration Account Agreement or (z) the Borrower Account Bank to comply with the terms of the Borrower Account Agreement or (II) dispute, claim, offset or defense of (x) any other Transaction Document to which it is a party or Collection Account Bank arising under the Contracts;
terms of the applicable Collection Account Agreement, (gy) any products liability, environmental or other claim by an Obligor or other third party Concentration Account Bank arising out under the terms of the goods applicable Concentration Account or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(hz) the use of any Purchase Price paid to such Originator;
(i) Borrower Account Bank arising under the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any terms of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtednessBorrower Account Agreement; or
(mxi) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents withholding, deduction or Charge imposed upon any payments with respect to comply with the notice requirements of FACA any Transferred Receivable, any Borrower Assigned Agreement or any analogous State or local Lawsother Borrower Collateral.
Appears in 2 contracts
Samples: Receivables Funding and Administration Agreement (Td Synnex Corp), Receivables Funding and Administration Agreement (Td Synnex Corp)
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawApplicable Law, each Originator, severally and for itself alone, hereby agrees to indemnify and hold harmless the Company and Buyer, each of its Affiliatesofficers, directors, employees, agents, employeesemployees and respective assigns, officers, the Administrative Agent and directors each Lender (each of the foregoing Persons being individually called a “Purchase Sale and Sale Contribution Indemnified Party”), forthwith on demandwritten demand (which demand shall be accompanied by documentation of the Sale and Contribution Indemnified Amounts (as defined below) in reasonable detail), from and against any and all damages, claims, damageslosses, expensesjudgments, costs, losses and liabilities, penalties and related costs and expenses (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase Sale and Sale Relevant Contribution Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation or warranty made or deemed made by such Originator (or any employee, officer or agent of such Originator on its officers, employees or agentsbehalf) under or in connection with this Agreement or any of the other Transaction Document Documents to which such Originator is a party, or any information or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure transfer by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold interest in any Pool Receivable or Related Right other than the related Contract transfer of any Pool Receivable and Related Rights to conform the Buyer pursuant to any such applicable law, rule or regulationthis Agreement and the grant of a security interest to the Buyer pursuant to this Agreement;
(c) the failure by such Originator to vest comply with any Applicable Law with respect to any Pool Receivable or the related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such Applicable Law;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Company a First Priority Interest Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(e) the Sold Receivables generated failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable or the Related Rights originated by such Originator;
(df) any commingling suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of Collections or in connection with other fundsthe property, products or services that are the subject of any Pool Receivable originated by such Originator);
(eg) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an the Obligor to the payment of any Sold Receivable generated originated by such Originator in the Receivables Pool (including, without limitation, including a defense based on such Receivable Receivable’s or the related Contract 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 goods the property, products or services related giving rise to any such Sold Receivable or the furnishing of or failure to furnish such goods property, products or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)services;
(fh) any failure of such Originator to perform any of its duties and or obligations in accordance with the provisions hereof and of this Agreement, any Contract or any each other Transaction Document to which it is a party related to Pool Receivables originated by such Originator or under to timely and fully comply with the ContractsCredit and Collection Policy in regard to each Pool Receivable originated by such Originator;
(gi) any products liability, environmental or other claim by an Obligor or other third party arising out of the or in connection with any Receivable originated by such Originator or other merchandise, goods or services which are the subject of or related to any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this AgreementReceivable;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated commingling by such OriginatorOriginator of Collections of Pool Receivables originated by such Originator at any time with other funds;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing to provide any Obligor with an invoice or other evidence of indebtedness;
(l) any investigation, litigation or proceeding (actual or threatened) related to such Originator and this Agreement or any other Transaction Document to which such Originator is a party or in respect of any Pool Receivable originated by such Originator or any Related Rights;
(m) any claim brought by any Person other than a Sale and Contribution Indemnified Party arising from any activity by such Originator or its agent in servicing, administering or collecting any Pool Receivable;
(n) the failure by such Originator to pay when due any Taxes owing by such Originator, including, without limitation, sales, excise or personal property taxes owing by such Originator;
(o) any liability of the Buyer for Taxes by reason of the purchase or ownership of the Receivables generated by such Originator or any Related Rights connected with any such Receivables as a result of a breach or inaccuracy of Sections 7.01(v) or 8.01(y) of the Receivables Financing Agreement;
(p) any liability of the Buyer under Section 5.03 of the Receivables Financing Agreement;
(q) any action taken by the Administrative Agent as attorney-in-fact for such Originator pursuant to this Agreement or any other Transaction Document to which such Originator is a party; or
(mr) any Receivable sold, transferred, contributed or assigned hereunder by such Originator as an Eligible Receivable on the failure date of sale, transfer, contribution or assignment of such Receivable but which is not an Eligible Receivable at such time; provided that such indemnity shall not be available to any Sale and Contribution Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the bad faith, gross negligence or willful misconduct of a Sale and Contribution Indemnified Party, (y) constitute recourse with respect to a Pool Receivable by reason of the sale bankruptcy or insolvency, or the financial or credit condition or financial default, of the related Obligor or (z) arise from a claim by one Sale and pledge Contribution Indemnified Party against another Sale and Contribution Indemnified Party (other than actions against the Administrative Agent in its capacity as Administrative Agent or similar capacity and also excluding any action, claim or dispute involving the Originators or any of their Affiliates or resulting from any action or inaction by the Originators or any of their Affiliates); provided further, that such indemnity (other than with respect to clause (n), (o) and (p)) shall not apply with respect to Taxes. Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in this Article IX, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be deemed to be not so qualified. If for any reason the foregoing indemnification is unavailable to any Sale and Contribution Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Sale and Contribution 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 such Originator and its Affiliates, on the one hand, and such Sale and Contribution Indemnified Party, on the other hand, in the matters contemplated by this Agreement as well as the relative fault of such Originator and its Affiliates and such Sale and Contribution Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations. The reimbursement, indemnity and contribution obligations of such Originator under this Section 9.1 shall be in addition to any liability which such Originator may otherwise have, shall extend upon the same terms and conditions to the Sale and Contribution Indemnified Party, and shall be binding upon and inure to the benefit of any Pool Receivable successors, assigns, heirs and personal representatives of such Originator and the Sale and Contribution Indemnified Parties. Any indemnification or contribution under this Section 9.1 shall survive the Transaction Documents to comply with the notice requirements termination of FACA or any analogous State or local Lawsthis Agreement.
Appears in 2 contracts
Samples: Sale and Contribution Agreement (EnLink Midstream, LLC), Sale and Contribution Agreement (EnLink Midstream Partners, LP)
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, (a) Each Originator hereby agrees to indemnify and hold harmless the Company Buyer and each of its Affiliatesassigns (including any Secured Party under the Receivables Purchase Agreement), agents, employees, and their respective officers, directors, agents and directors employees (each of the foregoing Persons being individually called a each, an “Purchase and Sale Originator Indemnified Party”), forthwith on demand, from and against any loss, liability, expense, damage or injury suffered or sustained by reason of (i) such Originator’s failure to duly and all claims, damages, expenses, costs, losses and liabilities, including Attorney Costs (all of the foregoing being collectively called “Purchase and Sale Relevant Amounts”) arising out of or resulting from the failure of such Originator to punctually perform its obligations under this Agreement, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating pursuant to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:
(a) the failure of any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to have been true and correct as of the date made or deemed made;
(b) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originator;
(d) any commingling of Collections with other funds;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligor) of an Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party party, (ii) the breach by such Originator of any of its representations, warranties or under the Contracts;
covenants hereunder, (giii) any products liability, environmental or other claim by an Obligor or other third party arising out violation of the goods or services which are the subject of any Sold Receivable generated Applicable Law by such Originator or the related Contract;
(hiv) the use of any Purchase Price paid to such Originator;
(i) the failure Adverse Claim asserted by any creditor of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, against any of the other Transaction Documents Receivables or the ownership Related Rights (all of the Sold Receivables generated by such Originator;
foregoing being collectively referred to as “Originator Indemnified Amounts”); excluding, however, (kA) any action taken by Originator Indemnified Amounts to the extent arising out of or resulting from the gross negligence or willful misconduct of such Originator (Indemnified Party or any of its Affiliates) in Related Indemnified Parties or the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay breach by such Originator Indemnified Party or any of its Related Indemnified Parties of its obligations under any Transaction Document to which it is a party, in providing each case, as determined in a final non-appealable judgment by a court of competent jurisdiction and (B) any Obligor with an invoice Credit Risk Losses or other evidence losses arising under arrangements (synthetically or otherwise) to the extent such arrangements have the effect of indebtedness; orreplicating, in whole or in part, exposure to Credit Risk Losses.
(mb) In no event shall any Originator be liable hereunder to any Originator Indemnified Party or any other Person for any special, indirect, consequential or punitive damages, including but not limited to lost profits, even if the failure Servicer has been advised of the sale likelihood of such loss or damage and pledge regardless of the form of action.
(c) If for any Pool Receivable reason any indemnification to which an Originator Indemnified Party would otherwise be entitled pursuant to the terms of Section 9.1(a) is unavailable to such Originator Indemnified Party or insufficient to hold it harmless, then the applicable Originator shall contribute to the amount paid or payable by such Originator 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 such Originator and its Related Indemnified Parties on the one hand and such Originator Indemnified Party and its Affiliates 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 Originator Indemnified Party and its Related Indemnified Parties with respect to such loss, claim, damage or liability and any other relevant equitable considerations. The reimbursement, indemnity and contribution obligations of each Originator under this Section shall, to the Transaction Documents extent not duplicative, be in addition to comply with any liability which such Originator may otherwise have.
(d) All amounts owed by any Originator under this Section 9.1 shall be paid by such Originator by the notice requirements Monthly Settlement Date following the Fiscal Month during which such Originator has received the written demand of FACA the related Originator Indemnified Amounts from the applicable Originator Indemnified Party. Any indemnification or any analogous State or local Lawscontribution under this Section shall survive the termination of this Agreement.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (NCR Atleos Corp), Purchase and Sale Agreement (NCR Corp)
Indemnities by the Originators. Without limiting any other rights which the Company Purchaser may have hereunder or under applicable law, each Originator, severally and for itself alone, hereby agrees to indemnify and hold harmless the Company Purchaser and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable fees of legal counsel and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them to the extent arising out of or resulting from as a result of (a) the breach of any representation or warranty made by such Originator herein or in any other Transaction Document to which it is a party or (b) the failure of such Originator to perform its obligations under this Agreement, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:
(a) the failure of any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to have been true and correct as of the date made or deemed made;
(b) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originator;
(d) any commingling of Collections with other funds;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligor) of an Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party party; excluding, however, (x) Purchase and Sale Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds such Purchase and Sale Indemnified Amounts resulted from gross negligence or under willful misconduct on the Contracts;
part of such Purchase and Sale Indemnified Party, (gy) any products liability, environmental indemnification which has the effect of recourse for non-payment or uncollectibility of the Receivables due to a discharge in bankruptcy or similar insolvency proceeding or other claim credit related reasons with respect to the relevant Obligor and (z) any net income or franchise tax imposed on such Purchase and Sale Indemnified Party or any other taxes imposed against such Purchase and Sale Indemnified Party to the extent such taxes are measured by an Obligor or other third party arising out against the gross income or net income or receipts of such Person. If for any reason the goods indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or services which are is insufficient to hold such Purchase and Sale Indemnified Party harmless, then each Originator agrees that it shall contribute to the subject of any Sold Receivable generated amount paid or payable by such Originator or Purchase and Sale Indemnified Party to the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable maximum extent permitted under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsapplicable law.
Appears in 2 contracts
Samples: Canadian Purchase and Sale Agreement (Cincinnati Bell Inc), Purchase and Sale Agreement (Cincinnati Bell Inc)
Indemnities by the Originators. (a) Without limiting any other rights which the Company Buyer may have hereunder or under applicable lawApplicable Law, each Originatorof the Collection Agent and the Originators hereby each agrees, severally jointly and for itself aloneseverally, hereby agrees to indemnify the Buyer and hold harmless the Company its transfers and assigns, and each of its Affiliatestheir respective directors, agentsofficers, employees, officers, agents and directors attorneys (each all of the foregoing Persons being individually called a referred to as an “Purchase and Sale Indemnified Party” and being collectively referred to as “Indemnified Parties”), forthwith on demand, ) from and against any and all damages, losses, claims, damages, liabilities and related costs and expenses, costs, losses including reasonable attorneys’ fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called referred to as “Purchase and Sale Relevant Indemnified Amounts”) awarded against or actually incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreement, the Contribution Agreement, the Loan Agreement or arising out any other Document or the use of the claims asserted against a proceeds of any Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunderPurchased Property. Without limiting or being limited by the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentenceforegoing, each Originator, severally for itself alone, Originator shall indemnify pay on demand to each Purchase and Sale Indemnified Party for Purchase any and Sale Relevant 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:
(ai) Any Receivable represented or deemed represented by an Originator to be an Eligible Receivable which was not an Eligible Receivable as of the failure of Purchase Date thereof;
(ii) reliance on any representation or warranty made or deemed made by such Originator (any Originator, CHS, the Collection Agent or any of its officers, employees or agents) their respective officers under or in connection with this Agreement, the Contribution Agreement, the Loan Agreement or any other Transaction Document to Document, which shall have been true and correct as of the date false, incorrect or misleading in any material respect when made or deemed mademade or delivered;
(biii) the failure by such Originator any Originator, CHS or the Collection Agent to comply with any applicable lawterm, rule provision or regulation covenant contained in this Agreement, the Contribution Agreement, the Loan Agreement or any other Documents, or any Contract, or with any Applicable Law with respect to any Sold Receivable generated by such Originator or Receivable, the related Contract or the failure Related Security, or the nonconformity of any Sold Receivable or Receivable, the related Contract to conform to or the Related Security with any such applicable law, rule or regulationApplicable Law;
(civ) the failure to (A) vest and maintain vested in the Buyer or to transfer to the Buyer, legal and equitable title to and ownership of, the Receivables and the other Purchased Property which are, or are intended to be, sold by the Originators hereunder or (B) grant to the Buyer a valid and perfected first priority “security interest” under Article 9 of the UCC in and to the Receivables which are, or are purported to be, Purchased Property, together with all Collections and Related Security, in each case free and clear of any Lien (other than Permitted Liens referred to in clause (b) of the definition thereof) whether existing at the time of the Purchase of any such Receivable or at any time thereafter;
(v) the failure by such any Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originatormake any payment required on its part to be made hereunder;
(dvi) the failure to file, or any commingling delay in filing, financing statements or other similar instruments or documents under the UCC of Collections any applicable jurisdiction or other Applicable Law with respect to any Receivables and other fundsPurchased Property which are, or are intended to be, sold by the Originators hereunder, whether at the time of any Purchase or at any subsequent time;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligor) of an Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(fvii) any failure of such Originator any Originator, CHS or the Collection Agent to perform its duties and or obligations in accordance with the provisions of this Agreement, any Contract Agreement or any the other Transaction Document Documents or to which it is a party or perform its duties under the Contracts;
(gviii) any products liability, environmental liability claim or personal injury or property damage suit or other similar or related claim by an Obligor or other third party action of whatever sort arising out of the goods or in connection with merchandise or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(hix) any set-off by any Collection Account Bank or the use of any Purchase Price paid to such OriginatorConcentration Account Bank against Collections;
(ix) the failure of such Originator to pay when due any Taxestaxes which are an Originator’s responsibility, energy surcharges including sales, excise or other governmental charges personal property taxes payable by it in connection with the Sold Receivables generated by it Purchased Property or this Agreementthe purchase thereof;
(jxi) the commingling of Collections of Purchased Property at any time with other funds;
(xii) any investigation, litigation or proceeding relating related to this Agreement, any Agreement or the use of the other Transaction Documents proceeds of Purchases or the ownership by the Buyer of the Sold Receivables generated by such OriginatorPurchased Property;
(kxiii) any action taken attempt by such Originator (any Person to void or otherwise avoid any of its Affiliates) in the enforcement or collection transfer of any Sold Receivable generated by such Originator;
(l) Purchased Property from an Originator to the failure Buyer under any statutory provision or delay by such Originator in providing common law or equitable action, including any Obligor with an invoice or other evidence provision of indebtednessthe Bankruptcy Law; or
(mxiv) the failure inclusion in any Purchased Receivable any portion of the sale and pledge Expected Net Value of which represents sales taxes.
(b) Any amounts subject to the indemnification provisions of this Section 8.01 shall be paid by the Originators to the Buyer within 10 Business Days following the Buyer’s demand therefor. Notwithstanding any Pool Receivable other provision of this Agreement to the contrary, the Originators shall not indemnify any Indemnified Party for or with respect to any Indemnified Amounts (i) that would constitute recourse for uncollectible Receivables due to the bankruptcy or insolvency of the related Obligor or (ii) that arise solely from such Indemnified Party’s gross negligence, bad faith or willful misconduct as determined in a final non-appealable judgment of a court of competent jurisdiction.
(c) Notwithstanding the foregoing, the liability of the Specified Originators shall be limited to indemnification events relating to each such Specified Originator or the Purchased Property it has transferred under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsthis Agreement.
Appears in 2 contracts
Samples: Receivables Sale Agreement, Receivables Sale Agreement (Community Health Systems Inc)
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawApplicable Law, each OriginatorOriginator and Lamar, severally jointly and for itself aloneseverally, hereby agrees to indemnify and hold harmless the Company and Buyer, each of its Affiliatesofficers, directors, employees, agents, employeesemployees and respective assigns, officers, the Administrative Agent and directors each Lender (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, from and against any and all damages, claims, damageslosses, expensesjudgments, costs, losses and liabilities, penalties and related costs and expenses (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation representation, warranty or warranty statement made or deemed made by such Originator (or any employee, officer or agent of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any of the other Transaction Document to Documents, or any information or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure transfer by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold interest in any Pool Receivable or Related Right other than the related Contract transfer of any Pool Receivable and Related Rights to conform the Buyer pursuant to any such applicable law, rule or regulationthis Agreement and the grant of a security interest to the Buyer pursuant to this Agreement;
(c) the failure by such Originator to vest in comply with the Company a First Priority Interest in terms of any Transaction Document or with the Sold Receivables generated by Federal Assignment of Claims Act (or any other similar Applicable Law) or any Applicable Law with respect to any Pool Receivable or the related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such OriginatorApplicable Law;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any commingling bankruptcy trustee or similar Person), in either case, free and clear of Collections with other fundsany Adverse Claim;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable originated by such Originator);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable in the Receivables Pool (including, without limitation, (x) 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 (y) any dispute between an Advertiser Obligor and the related Agency Obligor as to which Person or Persons are obligated to make payment on a Receivable (whether before or after an Advertiser Obligor remits payment to an Agency Obligor)), or any other claim resulting from the sale of the property, products or services giving rise to such Receivable or the furnishing or failure to furnish such property, products or services;
(h) any failure of such Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(i) any products liability, environmental or other claim arising out of or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Receivable;
(j) the commingling of Collections of Pool Receivables at any time with other funds (including the commingling of Collections of Pool Receivables with Affiliate Collections);
(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 claim brought by any Person other than a Purchase and Sale Indemnified Party arising from any activity by such Originator or any Affiliate of such Originator in servicing, administering or collecting any Pool Receivable;
(n) the failure by such Originator to pay when due any Taxes, including, without limitation, sales, excise or personal property taxes;
(o) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to any such Sold Pool Receivable or the furnishing of or failure to furnish any such goods or services or relating other similar claim or defense not arising from the financial inability of any Obligor to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)pay undisputed indebtedness;
(fp) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the or in connection with goods or services which that are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(lq) the failure or delay by such Originator in providing to provide any Obligor with an invoice or other evidence of indebtedness;
(r) any tax or governmental fee or charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including without limitation Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or ownership of the Receivables generated by such Originator or any Related Rights connected with any such Receivables;
(s) any liability under Section 5.03 of the Receivables Financing Agreement; or
(mt) any action taken by the failure Administrative Agent as attorney-in-fact for such Originator pursuant to this Agreement or any other Transaction Document; provided that such indemnity shall not be available to any Purchase and Sale Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted solely from the gross negligence or willful misconduct of a Purchase and Sale Indemnified Party (other than the Buyer or any of its officers, directors, employees or agents) or a material breach of this Agreement or any other Transaction Document by such Purchase and Sale Indemnified Party (other than the Buyer or any of its officers, directors, employees or agents) or (y) constitute recourse with respect to a Pool Receivable by reason of the sale bankruptcy or insolvency, or the financial or credit condition or financial default, of the related Obligor. If for any reason the foregoing indemnification is unavailable to any Purchase and pledge Sale Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of such 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 such 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 such Originator under this Section shall be in addition to any liability which such 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 benefit of any Pool Receivable successors, assigns, heirs and personal representatives of such Originator and the Purchase and Sale Indemnified Parties. Any indemnification or contribution under this Section shall survive the Transaction Documents to comply with the notice requirements termination of FACA or any analogous State or local Lawsthis Agreement.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Lamar Media Corp/De), Purchase and Sale Agreement (Lamar Media Corp/De)
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, alone hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys' fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “"Purchase and Sale Relevant Indemnified Amounts”") awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Purchase Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Companyproceeds thereof or therefrom, INCLUDING PURCHASE AND SALE INDEMNIFIED AMOUNTS RESULTING FROM THE NEGLIGENCE OF THE PURCHASE AND SALE INDEMNIFIED PARTIES, but excluding, however, (i) Purchase and Sale Relevant Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (bii) due to any indemnification which has the credit risk effect of an Obligor and recourse for which reimbursement would constitute recourse non-payment of the Purchased Receivables to any Originator for uncollectible Receivables or indemnitor (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts except as otherwise specifically provided to be paid under this Section 9.1) and (iii) any tax based upon or measured by such Originator hereundernet income, property or gross receipts. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentenceforegoing, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure transfer by such Originator of an interest in any Purchased Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Purchase Document, or any information or report delivered by Originator pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect in any material respect when made or deemed made;
(bc) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Purchased Receivable generated by such Originator or the related Contract, or the nonconformity of any Purchased Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;
(cd) the failure to vest and maintain vested in the Company an ownership interest in the Purchased Receivables generated by such Originator to vest in free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company a First Priority Interest or the Administrator, whether existing at the time of the purchase of such Purchased 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 Sold UCC of any applicable jurisdiction or other applicable laws with respect to any Purchased Receivables or purported Purchased Receivables generated by such Originator, whether at the time of any purchase or at any subsequent time;
(d) any commingling of Collections with other funds;
(ef) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an the Obligor to the payment of any Sold Purchased Receivable or purported Purchased Receivable generated by such Originator (including, without limitation, a defense based on such Receivable Purchased Receivable's or the related Contract 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 goods or services related to any such Sold Purchased Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable services, and any claim for indemnification by the Buyer or any Contract related thereto (if such collection activities were performed Affected Party under the Receivables Purchase Agreement arising out of any action or inaction by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure the Receivables of such Originator to perform its duties Originator, including without limitation under Sections 11.03 and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts11.04 thereof;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the goods or in connection with services which that are the subject of any Sold Purchased Receivable generated by such Originator or the related Contract;Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the use 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 any Purchase Price paid to such Originator;
(i) counsel in defending against the failure of such Originator to pay when due any Taxessame, energy surcharges or other governmental charges payable which may arise by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any reason of the other Transaction Documents purchase or the ownership of the Sold Purchased Receivables generated by such Originator;
(k) . If for any action taken 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 each of the Originators, severally and for itself, shall contribute to the amount paid or payable by such Originator (or any of its Affiliates) in Purchase and Sale Indemnified Party to the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable maximum extent permitted under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsapplicable law.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Commercial Metals Co), Purchase and Sale Agreement (Commercial Metals Co)
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawLaw, each Originatorthe Originators, severally jointly and for itself aloneseverally, hereby agrees agree to indemnify and hold harmless the Company and Buyer, each of its Affiliatesofficers, directors, employees, agents, employeesemployees and respective assigns, officers, the Administrative Agent and directors each Lender (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, from and against any and all damages, claims, damageslosses, expensesjudgments, costs, losses and liabilities, penalties and related costs and expenses (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation or warranty made or deemed made by such any Originator (or any of its officersemployee, employees officer or agentsagent thereof) under or in connection with this Agreement or any of the other Transaction Document to Documents, or any information or report delivered by or on behalf of any Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure by such any Originator to (i) transfer good and marketable title in and to any Pool Receivable or Related Right to the Buyer, free and clear of any Adverse Claims, and that is freely assignable, pursuant to this Agreement and/or (ii) create a valid trust over any Pool Receivable or Related Right to the Buyer that is not capable of being freely assigned but is not restricted from being the subject of a trust;
(c) the failure by any Originator to comply with the terms of any applicable law, rule Transaction Document or regulation with any Law with respect to any Sold Pool Receivable generated by such Originator or the related Contract Contract; or the failure of any Sold Pool Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such OriginatorLaw;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Rights) against all Persons (including any commingling bankruptcy trustee or similar Person), in either case, free and clear of Collections with other fundsany Adverse Claim;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables (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);
(g) any dispute, claim, offset or defense defence (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable in the Receivables Pool (including a defence based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the property, products or services giving rise to such Receivable or the furnishing or failure to furnish such property, products or services;
(h) any failure of any Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(i) any products liability, environmental or other claim arising out of or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Receivable;
(j) the misdirection of Collections or 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 claim brought by any Person other than a Sale Indemnified Party arising from any activity by any Originator or any Affiliate thereof in servicing, administering or collecting any Pool Receivable;
(n) the failure by any Originator to pay when due any Taxes, including VAT, sales, excise or personal property Taxes;
(o) [reserved];
(p) withholding Taxes imposed on amounts payable to or for the account of the Buyer;
(q) any dispute, claim, offset or defence (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, including a defense defence 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 Sold Pool Receivable or the furnishing of or failure to furnish any such goods or services or relating other similar claim or defence not arising from the financial inability of any Obligor to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)pay undisputed indebtedness;
(fr) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the or in connection with goods or services which that are the subject of any Sold Receivable generated by such Originator or the related ContractReceivable;
(hs) any Tax or governmental fee or charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including Attorney Costs in defending against the use same, which are required to be paid by reason of the purchase or ownership of the Receivables or any Purchase Price paid to such OriginatorRelated Rights;
(it) any liability under Section 4.03 of the Receivables Financing Agreement;
(u) the failure of such Originator any Receivable sold, transferred or assigned and/or the subject of a trust hereunder as an Eligible Receivable to pay when due any Taxesactually constitute an Eligible Receivable on the date of sale, energy surcharges transfer or other governmental charges payable by it in connection with the Sold Receivables generated by it assignment or this Agreementcreation of trust;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(mv) the failure of a Settlement Agent to perform its obligations under the sale and pledge applicable Clearing House Rules for any Clearing House or the Clearing House Assignment Notice for any Clearing House;
(w) a Settlement Agent withholds any Receivables, including in the event of the suspension of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA servicer from any Clearing House or any analogous State Settlement Agent nets or local Lawssets off any amount payable by any Borrower Related Party against any Collections a Settlement Agent is required to remit to a Collection Account, or
(x) any judicial seizure, garnishment, or similar action on the Collections in the hands of a Settlement Agent that such Settlement Agent is required to remit to a Collection Account. provided that such indemnity shall not be available to any Sale Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the gross negligence or wilful misconduct of a Sale Indemnified Party or (y) to the extent the same includes losses in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in this Article IX, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be deemed to be not so qualified. If for any reason the foregoing indemnification is unavailable to any Sale Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such 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 Originators and their Affiliates, on the one hand, and such Sale Indemnified Party, on the other hand, in the matters contemplated by this Agreement as well as the relative fault of the Originators and their Affiliates and such Sale Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations. The reimbursement and indemnity obligations of the Originators under this Section 9.1 shall be in addition to any liability which the Originators may otherwise have, shall extend upon the same terms and conditions to the Sale Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of such Originator and the Sale Indemnified Parties. Any indemnification under this Section 9.1 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Sale Agreement (Sabre Corp)
Indemnities by the Originators. Without limiting any other rights which the Company Buyer may have hereunder or under applicable law, each Originatorthe Originators hereby, severally jointly and for itself aloneseverally, hereby agrees agree to indemnify the Buyer and hold harmless the Company its assigns and each of its Affiliatestransferees (each, agents, employees, officers, and directors (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, costs, expenses, costs, losses and liabilities, liabilities (including Attorney Costs reasonable attorneys’ fees) (all of the foregoing being collectively called referred to as “Purchase and Sale Relevant Indemnified Amounts”) arising out of or resulting from this Agreement or the failure ownership of such Originator to perform its obligations under this Agreement, Transferred Receivables or arising out in respect of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Companyany Transferred Receivable or any Contract, excluding, Purchase and Sale Relevant Amounts to the extenthowever, (a) such Purchase and Sale Relevant Indemnified Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted the extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (b) recourse for Receivables that are uncollectible solely due to the credit risk of an Obligor and for which reimbursement would constitute recourse relevant Obligor’s unwillingness or financial inability to any Originator for uncollectible Receivables pay or (c) any income taxes or franchise taxes imposed on such Purchase and Sale Relevant Amounts are Indemnified Party by the jurisdiction under the laws of which such Indemnified Party is organized or any political subdivision thereof, arising out of or as a result of this Agreement or the ownership of Transferred Receivables or in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from Transferred Receivable or any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunderContract. Without limiting or being limited by the foregoing indemnification, (but subject to the limitations set forth in clauses (aaforementioned exclusions), (b) and (c) of the previous sentence, each Originator, severally for itself alonejointly and severally, shall indemnify pay on demand to each Purchase and Sale Indemnified Party for Purchase any and Sale Relevant 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 failure of any representation or warranty or statement made or deemed made by such an Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any Agreement, and the other Transaction Document to Documents that shall have been true and correct as of the date made or deemed incorrect in any material respect when made;
(b) the failure by such an Originator to comply with any applicable law, rule or regulation with respect to any Sold Transferred Receivable generated by such Originator or the related Contract Contract; or the failure of any Sold Transferred Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company Buyer absolute ownership of the Transferred Receivables that are, or that purport to be, the subject of a First Priority Interest purchase or contribution under this Agreement and the Related Security and Collections in the Sold Receivables generated by such Originatorrespect thereof free and clear of any Adverse Claim;
(d) the failure of an Originator to have filed, or any commingling 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 that purport to be, the subject of a purchase or contribution under this Agreement and the Related Security and Collections with other fundsin respect thereof, whether at the time of any purchase or contribution or at any subsequent time, in each case to the extent required hereunder;
(e) 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 bankruptcy of an Obligorthe Obligor or any other credit related losses) of an the Obligor to the payment of any Sold Transferred Receivable generated by such Originator that is, or that purports to be, the subject of a purchase or contribution under this Agreement (including, without limitation, a defense based on such Transferred Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Transferred Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Transferred Receivable or any Contract related thereto (if to the extent such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliatesacting as Collection Agent);
(f) any failure of such Originator to perform its duties and or obligations in accordance with the provisions of this Agreement, hereof or to perform its duties or obligations under any Contract or any other Transaction Document related to which it is a party or under the ContractsTransferred Receivable;
(g) any products liability, environmental liability or other claim by an Obligor (including any claim for unpaid sales, excise or other third party taxes) arising out of the or in connection with goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use commingling of Collections of Transferred Receivables by an Originator or a designee of an Originator, as Collection Agent or otherwise, at any Purchase Price paid time with other funds of such Originator or an Affiliate of such Originator or the failure of Collections to such Originatorbe deposited into the Controlled Account;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating related to this Agreement, any of the other Transaction Documents Agreement or the ownership of Transferred Receivables, the Sold Receivables generated by such OriginatorRelated 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 action taken by such failure of an Originator (or any of to comply with its Affiliates) covenants contained in the enforcement or collection of any Sold Receivable generated by such Originator;Section 5.01; or
(l) the failure any claim brought by any Person other than an Indemnified Party arising from any activity by an Originator or delay by such any Affiliate of an Originator in providing servicing, administering or collecting any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local LawsTransferred Receivable.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (United Rentals Inc /De)
Indemnities by the Originators. Without limiting any other rights which that the Company Purchaser may have hereunder or under applicable law, each Originator, severally and for itself alone, Originator hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, and directors (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, Purchaser from and against any and all claims, damages, expenses, costs, losses and liabilities, liabilities (including Attorney Costs reasonable attorneys' fees) (all of the foregoing being collectively called “Purchase and Sale Relevant Amounts”referred to as "INDEMNIFIED AMOUNTS") arising out of or resulting from the failure this Agreement or in respect of such Originator to perform its obligations under this any Receivable or any Charge Account Agreement, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant however, Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase the Purchaser; PROVIDED, HOWEVER, that except as expressly provided in Section 2.04 and Sale Indemnified Partyin this Section 7.01 below, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse in no event will any Originator have any indemnity or other obligation hereunder or otherwise with respect to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are loss suffered in respect of Taxes other than any Taxes Eligible Receivable sold to the Purchaser in accordance with this Agreement, the parties hereby acknowledging that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided sales are to be paid by such Originator hereunderwithout recourse. Without limiting or being limited by the foregoing indemnificationforegoing, but subject to the limitations set forth proviso in clauses (a), (b) and (c) of the previous immediately preceding sentence, each Originator, severally for itself alone, Originator shall pay on demand to the Purchaser any and all amounts necessary to indemnify each Purchase the Purchaser from and Sale against any and all Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:
(a) the failure of reliance on any representation or warranty or statement made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or in any other Transaction Document to certificate delivered pursuant hereto that, in either case, shall have been true and correct as of the date false or incorrect in any material respect when made or deemed made;
(b) the failure by such Originator to comply with any applicable law, rule or regulation of any Governmental Authority with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to Charge Account Agreement of such Originator, or the nonconformity of any Receivable or the related Charge Account Agreement of such Originator with any such applicable law, rule or regulation;
(c) the failure by such Originator to vest have filed, or any delay in filing, financing statements or other similar instruments or documents under the Company a First Priority Interest in the Sold UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables generated by of such Originator;
(d) any commingling of Collections with other funds;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Receivable generated by of such Originator (including, without limitation, a defense based on such Receivable or the related Contract Charge Account Agreement not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other 35 claim resulting from the sale of goods the merchandise or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods merchandise or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)services;
(fe) any failure of such Originator to perform its duties and or obligations under this Agreement or the applicable Charge Account Agreement;
(f) any products liability claim arising out of or in accordance connection with merchandise, insurance or services that are the provisions subject of this Agreement, any Contract or charge pursuant to any other Transaction Document to which it is a party or under the ContractsCharge Account Agreement of such Originator;
(g) the commingling of Collections of Receivables at any products liability, environmental or time with other claim by an Obligor or other third party arising out funds of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related ContractOriginator;
(h) the use any set-off by any creditor of an Originator (other than any Purchase Price paid to such Originator;Obligor) against Collections; or
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating related to this Agreement, Agreement or in respect of any Receivable or any Charge Account Agreement of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) . Notwithstanding the foregoing, no Originator shall under any action taken by such Originator (or circumstances be required to indemnify the Purchaser for any of its Affiliates) Indemnified Amounts that result from any delay in the enforcement or collection of any Sold Receivable generated Receivables or any default by such Originator;
(l) the failure or delay by such Originator in providing any an Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of respect to any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local LawsReceivables.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Apparel Retailers Inc)
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawApplicable Law, the Company (whether as Originator or Servicer) jointly and severally, and each Originator, severally and for itself aloneother Originator severally, hereby agrees to indemnify the Buyer, the Borrower (as assignee of the Buyer), the Administrative Agent (as assignee of the Borrower for the benefit of the Secured Parties under the ABL Credit Agreement), each Lender and hold harmless the Company and each of its Affiliates, agents, employees, officers, and directors their respective Related Parties (each of the foregoing Persons being individually called a “Purchase and Sale Contribution Indemnified Party”), forthwith on demand, ) from and against any and all claimsloss, damagesliability, expensesexpense, costsdamage or injury suffered or sustained by reason of (i) any failure of such Originator to comply with any of its covenants, losses and liabilitiesobligations or agreements contained in this Agreement or any other Loan Document to which it is a party or such Originator’s gross negligence (ii) the breach of any representation or warranty made or deemed made by such Originator under or in connection with this Agreement or any of the other Loan Documents to which it is a party or (iii) willful misconduct in the performance of its duties or obligations under this Agreement or any other Loan Document to which it is a party, including Attorney Costs any judgment, award, settlement, attorney costs and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim (all of the foregoing being collectively called referred to as, “Purchase and Sale Relevant Contribution Indemnified Amounts”) arising out of ). Without limiting or resulting from being limited by the failure of such Originator foregoing, the Company jointly and severally and each other Originator, severally, shall pay on demand to perform its obligations under this Agreement, or arising out of the claims asserted against a each Purchase and Sale Contribution Indemnified Party relating any and all documented amounts necessary to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) indemnify such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final Contribution Indemnified Party from and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such against any and all Purchase and Sale Contribution Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromfrom any of the following:
(a) the failure breach of any representation or warranty made or deemed made by such Originator (or any employee, officer or agent of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any of the other Transaction Document Loan Documents to which it is a party, or any information or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect US-DOCS\148030570.24 when made or deemed mademade or delivered;
(b) the failure transfer by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold interest in any Subject Receivable or the related Contract Related Right sold or purportedly sold to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originator;
(d) any commingling of Collections with other funds;
(e) any dispute, claim, offset or defense (Buyer hereunder other than discharge in bankruptcy the transfer of an Obligor) of an Obligor any Subject Receivable and Related Security to the payment Buyer pursuant to this Agreement and the grant of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or security interest to 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 services related Buyer pursuant to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Laws.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Hawaiian Electric Co Inc)
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable lawSPV Purchaser, each Originatorof its permitted assigns, severally and for itself alone, hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, their respective officers, directors, employees and directors agents (each of the foregoing Persons being individually called a “Purchase and "Sale Indemnified Party”)") may have hereunder or under Applicable Law, forthwith on but subject to the provisions of Section 1.3, each Originator hereby severally agrees to indemnify the SPV Purchaser and each Sale Indemnified Party, within thirty (30) days after demand, from and against any and all damages, losses, claims, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys' fees and liabilities, including Attorney Costs disbursements (all of the foregoing collectively being collectively called “Purchase and "Sale Relevant Indemnified Amounts”") awarded against or incurred by any of them arising out of or resulting from the failure of this Agreement (whether directly or indirectly) as it relates to such Originator to perform its obligations under this Agreement, or arising out the use of proceeds of purchases or the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition ownership of the Sold Receivables any Receivable or Related Rights originated by the Companysuch Originator, excluding, Purchase and Sale Relevant Amounts to the extenthowever, (a) such Purchase and Sale Relevant Indemnified Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted the extent resulting from the fraud, gross negligence or willful misconduct on the part of the SPV Purchaser or such Purchase and Sale Indemnified Party, Party or (b) Sale Indemnified Amounts which have the effect of recourse for non-payment of the Receivables due to credit problems of the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunderObligors. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentenceforegoing, each Originator, severally for itself alone, Originator shall indemnify the SPV Purchaser and each Purchase and Sale Indemnified Party for Purchase Sale Indemnified Amounts related to such Originator and Sale Relevant Amounts arising out of or relating to or resulting fromto:
(ai) the transfer by such Originator of an interest in any Receivable or Related Rights to any Person other than the SPV Purchaser pursuant to this Agreement, or the granting of any security interest or other Lien in any Receivable or Related Rights to any Person other than the SPV Purchaser, the Administrator and/or the Purchasers under the Receivables Purchase Agreement, in each case, under the applicable Transaction Documents;
(ii) the failure of any information contained in any Purchase Report or otherwise provided by such Originator to the SPV Purchaser, the Purchasers under the Receivables Purchase Agreement, the Administrator or any other Servicer or Sub-Servicer with respect to Receivables or this Agreement to be true, correct and complete;
(iii) the failure of any representation or warranty or statement made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to have been true true, correct and correct as of the date not misleading in any respect when made or deemed made;
(biv) the failure by such Originator to comply with any applicable lawApplicable Law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract Related Rights to conform to any such applicable law, rule or regulationApplicable Law;
(cv) the failure to vest and maintain vested in the SPV Purchaser a valid and enforceable perfected first-priority ownership interest in each Receivable of such Originator at any time existing and the Related Rights with respect thereto, free and clear of any Lien, other than a Lien arising solely as a result of an act of the SPV Purchaser, the Purchasers under the Receivables Purchase Agreement, or the Administrator (in each case, in accordance with the applicable Transaction Documents), whether existing as the time of purchase or contribution of such Receivable or at any time thereafter;
(vi) the failure of such Originator to have filed, or any delay by such 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 vest any Receivables and the Related Rights in respect thereof, whether at the Company a First Priority Interest in the Sold Receivables generated by such Originatortime of any purchase or contribution or at any time thereafter;
(d) any commingling of Collections with other funds;
(evii) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligoror payment) of an the Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods merchandise or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)services;
(fviii) any failure of such Originator to perform its duties and or obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party hereof or under the Contractsany Transaction Document;
(gix) any products liability, environmental liability or other claim by an Obligor claim, investigation, litigation or other third party proceeding arising out of the goods or in connection with merchandise or services which are the subject of any Sold Receivable generated by such Originator or the related ContractReceivable;
(hx) the use commingling of Collections of Pool Receivables at any Purchase Price paid to such Originatortime with other funds;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(jxi) any investigation, litigation or proceeding relating (x) against such Originator or the SPV Purchaser or (y) related to this Agreement, any Agreement or the use of the other Transaction Documents proceeds of purchases or the ownership of any Receivable or Related Rights;
(xii) any tax or governmental fee or charge (but not including taxes upon or measured by net income or representing a franchise or unincorporated business tax on such Sale Indemnified Party), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the Sold 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 such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of Related Rights connected with any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtednessReceivables; or
(mxiii) the failure any requirement that all or a portion of the sale and pledge of sales, contributions or distributions made to the SPV Purchaser pursuant to this Agreement shall be rescinded or otherwise must be returned to such Originator for any Pool Receivable under the Transaction Documents reason other than credit issues relating to comply with the notice requirements of FACA or any analogous State or local LawsObligor.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawApplicable Law, each OriginatorOriginator and Centric, severally jointly and for itself aloneseverally, hereby agrees to indemnify and hold harmless the Company and Buyer, each of its Affiliatesofficers, directors, employees, agents, employeesemployees and respective assigns, officers, the Administrative Agent and directors each Purchaser (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, from and against any and all damages, claims, damageslosses, expensesjudgments, costs, losses and liabilities, penalties and related costs and expenses (including reasonable Attorney Costs Costs) (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation representation, warranty or warranty statement made or deemed made by such Originator (or any employee, officer or agent of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any of the other Transaction Document to Documents, or any information or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure transfer by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold interest in any Pool Receivable or Related Right other than the related Contract transfer of any Pool Receivable and Related Security to conform the Buyer pursuant to any such applicable law, rule or regulationthis Agreement and the grant of a security interest to the Buyer pursuant to this Agreement;
(c) the failure by such Originator to vest in comply with the Company a First Priority Interest in terms of any Transaction Document or with any Applicable Law with respect to any Pool Receivable or the Sold Receivables generated by related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such OriginatorApplicable Law;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any commingling bankruptcy trustee or similar Person), in either case, free and clear of Collections with other fundsany Adverse Claim;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable originated by such Originator);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable in the Receivables Pool (including, 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 sale of the property, products or services giving rise to such Receivable or the furnishing or failure to furnish such property, products or services;
(h) any failure of such Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(i) the commingling of Collections of Pool Receivables at any time with other funds, including any commingling in the GBGWells Exception Account, HSBC Exception Account or any CIT Account;
(j) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(k) 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;
(l) any claim brought by any Person other than a Purchase and Sale Indemnified Party arising from any activity by such Originator or any Affiliate of such Originator in servicing, administering or collecting any Pool Receivable;
(m) the failure by such Originator to pay when due any Taxes, including, without limitation, sales, excise or personal property Taxes;
(n) any investigation, litigation, dispute or proceeding (actual or threatened) related to (A) the GBGany Wxxxx Exception Account, any HSBC Exception Account or any CIT Account or any amounts on deposit therein or (B) any Intercreditor Agreement;
(o) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to any such Sold Pool Receivable or the furnishing of or failure to furnish any such goods or services or relating other similar claim or defense not arising from the financial inability of any Obligor to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)pay undisputed indebtedness;
(fp) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the or in connection with goods or services which that are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Laws.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which the Company Initial Purchaser and each of its permitted assigns, officers, directors, employees and agents (each of the foregoing Persons being individually called a "Sale Indemnified Party") may have hereunder or under applicable law, each Originator, severally jointly and for itself aloneseverally, hereby agrees to indemnify and hold harmless the Company Initial Purchaser and each of its Affiliates, agents, employees, officers, and directors (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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys' fees and liabilities, including Attorney Costs disbursements (all of the foregoing collectively being collectively called “Purchase and "Sale Relevant Indemnified Amounts”") arising out of or resulting from this Agreement (whether directly or indirectly) or the failure use of such Originator to perform its obligations under this Agreement, proceeds of purchases or arising out the ownership of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Companyany Pool Receivable or Related Rights, excluding, Purchase and Sale Relevant Amounts to the extenthowever, (a) such Purchase and Sale Relevant Indemnified Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted the extent resulting from the fraud, gross negligence or willful misconduct on the part of the Initial Purchaser or such Purchase and Sale Indemnified Party, (b) due Sale Indemnified Amounts to the credit risk extent the same includes losses in respect of an Obligor Pool Receivables and for which reimbursement therefor that would constitute credit recourse to the Originators for the amount of any Originator Pool Receivable or Related Rights not paid by the related Obligor for uncollectible Receivables credit reasons, or (c) any net income taxes or franchise taxes imposed on the Initial Purchaser or such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to by the jurisdiction under the laws of which such Originator for Sale Indemnified Party is organized or any amounts otherwise specifically provided to be paid by such Originator hereunderpolitical subdivision thereof. Without limiting or being limited by the foregoing indemnificationforegoing, but subject to the limitations exclusions set forth in clauses (a), (b) and (c) of the previous immediately preceding sentence, each Originator, severally for itself alonejointly and severally, shall indemnify pay on demand to the Initial Purchaser and each Purchase and Sale Indemnified Party for Purchase any and all amounts necessary to indemnify the Initial Purchaser and such Sale Relevant Indemnified Party from and against any and all Sale Indemnified Amounts relating to or resulting fromfrom any of the following:
(ai) the transfer by any Originator of an interest in any Receivable or Related Rights to any Person other than the Initial Purchaser;
(ii) the failure of any information provided by any Originator, as Servicer or otherwise, to the Initial Purchaser, the Purchaser, the Administrator or the Servicer with respect to Pool Receivables or this Agreement to be true, correct and complete;
(iii) the failure of any representation or warranty or statement made or deemed made by such any Originator (or any of its officers), employees as Servicer or agents) otherwise, under or in connection with this Agreement or any other Transaction Document to have been true and correct as of the date made or deemed when made;
(biv) the failure by such Originator any Originator, as Servicer or otherwise, to comply with any applicable lawApplicable Law, rule or regulation with respect to any Sold Pool Receivable generated by such Originator or the related Contract Related Rights; or the failure of any Sold Pool Receivable or the related Contract Related Rights to conform to any such applicable law, rule or regulationApplicable Law;
(cv) the failure by such Originator to vest and maintain vested in the Company Initial Purchaser a First Priority Interest valid and enforceable ownership interest in each Pool Receivable at any time existing and the Sold Receivables generated by Related Rights with respect thereto, free and clear of any Lien, other than a Lien arising solely as a result of an act of the Initial Purchaser, the Purchaser, the Liquidity Agent or the Administrator, whether existing as the time of purchase of such OriginatorPool Receivable or at any time thereafter;
(dvi) the failure of any commingling Originator to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of Collections any applicable jurisdiction or other applicable laws with other fundsrespect to any Pool Receivables and the Related Rights in respect thereof, whether at the time of any purchase or at any subsequent time;
(evii) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an the Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the goods or services related to any such Sold Pool Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Pool Receivable or any Contract related thereto (if such collection activities were performed by such any Originator or any of its Affiliates Affiliates, acting as Servicer or by any agent or independent contractor retained by such any Originator or any of its Affiliates);
(fviii) any failure of such Originator any Originator, as Servicer or otherwise, to perform its duties and or obligations in accordance with the provisions of this Agreement, any Contract hereof or any other Transaction Document under the Receivables Purchase Agreement or to which it is a party perform its duties or obligations under the Contracts;
(gix) any products liability, environmental liability or other claim by an Obligor claim, investigation, litigation or other third party proceeding arising out of the goods or in connection with merchandise, insurance or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(hx) the use commingling of Collections of Pool Receivables at any Purchase Price paid to such Originatortime with other funds;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(jxi) any investigation, litigation or proceeding relating related to this Agreement, any Agreement or the use of the other Transaction Documents proceeds of purchases or the ownership of any Pool Receivable or Related Rights;
(xii) any tax or governmental fee or charge (but not including taxes upon or measured by net income or representing a franchise or unincorporated business tax on such Sale Indemnified Party), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the Sold 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 such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of Related Rights connected with any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtednessReceivables; or
(mxiii) the failure any requirement that all or a portion of the sale and pledge of distributions made to the Initial Purchaser pursuant to this Agreement shall be rescinded or otherwise must be returned to any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or Originator for any analogous State or local Lawsreason.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawApplicable Law, each OriginatorOriginator and Xxxx, severally jointly and for itself aloneseverally, hereby agrees to indemnify and hold harmless the Company and Buyer, each of its Affiliatesofficers, directors, employees, agents, employeesemployees and respective assigns, officers, the Administrative Agent and directors each Purchaser (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, from and against any and all damages, claims, damageslosses, expensesjudgments, costs, losses and liabilities, penalties and related costs and expenses (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation or warranty made or deemed made by such Originator (or any employee, officer or agent of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any of the other Transaction Document to Documents, or any information or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure transfer by such Originator of any interest in any Pool Receivable or Related Right other than the transfer of any Pool Receivable and Related Security to comply with any applicable law, rule or regulation with respect the Buyer pursuant to any Sold Receivable generated by such Originator this Agreement or the related Contract or grant of a security interest to the failure of any Sold Receivable or the related Contract Buyer pursuant to conform to any such applicable law, rule or regulationthis Agreement;
(c) the failure by such Originator to vest in comply with the Company a First Priority Interest in terms of any Transaction Document or with any Applicable Law with respect to any Pool Receivable or the Sold Receivables generated by related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such OriginatorApplicable Law;
(d) any commingling of Collections with other funds;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy the lack of an Obligorenforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) of an Obligor to the payment of any Sold Receivable generated originated by such Originator against all Persons (including, without limitation, a defense based on such Receivable including any bankruptcy trustee or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its termssimilar Person), or any other claim resulting from the sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties in either case, free and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject clear of any Sold Receivable generated by such Originator or the related ContractAdverse Claim;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Laws.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, alone hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys' fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “"Purchase and Sale Relevant Indemnified Amounts”") awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Companyproceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Relevant Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (bii) due to any indemnification which has the credit risk effect of an Obligor and recourse for which reimbursement would constitute recourse non-payment of the Receivables to any Originator for uncollectible Receivables or indemnitor (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts except as otherwise specifically provided to be paid under this Section 9.1) and (iii) any tax based upon or measured by such Originator hereundernet income property, or gross receipts. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentenceforegoing, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure transfer by such 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 such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, or any information or report delivered by Originator pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect when made or deemed made;
(bc) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract, or the nonconformity of any Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;
(cd) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by such 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 Purchaser 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 vest file, or any delay in filing, financing statements or other similar instruments or documents under the Company a First Priority Interest in the Sold UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by such Originator, whether at the time of any purchase or contribution or at any subsequent time;
(d) any commingling of Collections with other funds;
(ef) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an the Obligor to the payment of any Sold Receivable or purported Receivable generated by such Originator (including, without limitation, a defense based on such Receivable Receivable's or the related Contract 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 goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractsservices;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the goods or in connection with services which that are the subject of any Sold Receivable generated by such 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 such Originator or any Related Security connected with any such Receivables. If for any reason the related Contract;
(h) 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 each of the use of any Purchase Price Originators, severally and for itself, shall contribute to the amount paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with such Purchase and Sale Indemnified Party to the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable maximum extent permitted under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsapplicable law.
Appears in 1 contract
Samples: Purchase and Sale Agreement (York International Corp /De/)
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, hereby agrees to indemnify the Company, the Administrator, each Purchaser and hold harmless the Company each Purchaser Agent and each of its Affiliates, agents, employees, their respective officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys’ fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document (including, in any event, the indemnified matters described in clauses (a) through (h) below), or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Company, proceeds thereof or therefrom; excluding, however, (i) Purchase and Sale Relevant Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (bii) 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 credit risk of an relevant Obligor and for which reimbursement would constitute recourse to (iii) any Originator for uncollectible Receivables net income or (c) franchise tax imposed on such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to by the jurisdiction under the laws of which such Originator for Purchase and Sale Indemnified Party is organized or any amounts otherwise specifically provided to be paid by such Originator hereunderpolitical subdivision thereof. Without limiting the foregoing indemnificationforegoing, but and subject to the limitations exclusions set forth in clauses (a), (b) and (c) of the previous preceding sentence, each Originator, severally for itself alonealone and FleetCor, jointly and severally with each Originator, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure transfer by such 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 such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, or any information or report delivered by Originator pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect when made or deemed made;
(bc) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated or acquired by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder or the related Contract, or the nonconformity of any Receivable generated or acquired by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder or the related Contract or the failure of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;
(cd) the failure by such Originator to vest and maintain vested in the Company a First Priority Interest an ownership interest in the Sold Receivables generated or acquired by such Originator;
(d) Originator sold, contributed or otherwise transferred or purported to be transferred hereunder free and clear of any commingling of Collections with other fundsAdverse Claim;
(e) the failure to file, or any delay in filing, by such 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 such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder, whether at the time of any purchase or contribution or at any subsequent time to the extent required hereunder;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy or similar insolvency proceeding of an ObligorObligor or other credit related reasons) of an the Obligor to the payment of any Sold Receivable or purported Receivable generated or acquired by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder (including, without limitation, a defense based on such Receivable Receivable’s or the related Contract 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 goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractsservices;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the goods or in connection with services which that are the subject of any Sold Receivable generated or acquired by such 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 are required to be paid by reason of the purchase or ownership of the Receivables generated or acquired by such Originator or any Related Security connected with any such Receivables. If for any reason the related Contract;
(h) 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 each of the use of any Purchase Price Originators, severally and for itself, shall contribute to the amount paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with such Purchase and Sale Indemnified Party to the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable maximum extent permitted under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsapplicable law.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Fleetcor Technologies Inc)
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawLaw, each Originatorthe Originators, severally jointly and for itself aloneseverally, hereby agrees agree to indemnify and hold harmless the Company and Buyer, each of its Affiliatesofficers, directors, employees, agents, employeesemployees and respective assigns, officers, the Administrative Agent and directors each Lender (each of the foregoing Persons being individually called a “Purchase Sale and Sale Contribution Indemnified Party”), forthwith on demand, from and against any and all damages, claims, damageslosses, expensesjudgments, costs, losses and liabilities, penalties and related costs and expenses (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase Sale and Sale Relevant Contribution Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation or warranty made or deemed made by such any Originator (or any of its officersemployee, employees officer or agentsagent thereof) under or in connection with this Agreement or any of the other Transaction Document to Documents, or any information or report delivered by or on behalf of any Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure by such any Originator to transfer good and marketable title in and to any Pool Receivable or Related Right to the Buyer, free and clear of any Adverse Claims, and that is freely assignable, pursuant to this Agreement;
(c) the failure by any Originator to comply with the terms of any applicable law, rule Transaction Document or regulation with any Law with respect to any Sold Pool Receivable generated by such Originator or the related Contract Contract; or the failure of any Sold Pool Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such OriginatorLaw;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables (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);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable in the Receivables Pool (including a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the property, products or services giving rise to such Receivable or the furnishing or failure to furnish such property, products or services;
(h) any failure of any Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(i) any products liability, environmental or other claim arising out of or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Receivable;
(j) the misdirection of Collections or the commingling of Collections of Pool Receivables at any time with other funds;
(ek) 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 claim brought by any Person other than a Sale and Contribution Indemnified Party arising from any activity by any Originator or any Affiliate thereof in servicing, administering or collecting any Pool Receivable;
(n) the failure by any Originator to pay when due any Taxes, including sales, excise or personal property Taxes;
(o) Taxes imposed or based on, or measured by, the gross or net income or receipts of the Buyer, and franchise Taxes or branch profits Taxes imposed on the Buyer;
(p) withholding Taxes imposed on amounts payable to or for the account of the Buyer;
(q) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, 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 Sold Pool Receivable or the furnishing of or failure to furnish any such goods or services or relating other similar claim or defense not arising from the financial inability of any Obligor to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)pay undisputed indebtedness;
(fr) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the or in connection with goods or services which that are the subject of any Sold Receivable generated by such Originator or the related ContractReceivable;
(hs) any Tax or governmental fee or charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including Attorney Costs in defending against the use same, which are required to be paid by reason of the purchase or ownership of the Receivables or any Purchase Price paid to such OriginatorRelated Rights;
(it) any liability under Section 4.03 of the Receivables Financing Agreement; or
(u) the failure of such Originator any Receivable sold, transferred, contributed or assigned hereunder as an Eligible Receivable to pay when due any Taxesactually constitute an Eligible Receivable on the date of sale, energy surcharges transfer, contribution or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreementassignment;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(mv) the failure of a Settlement Agent to perform its obligations under the sale and pledge applicable Clearing House Rules for any Clearing House;
(w) a Settlement Agent withholds any Receivables, including in the event of the suspension of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA servicer from any Clearing House or any analogous State Settlement Agent nets or local Lawssets off any amount payable by any Borrower Related Party against any Collections a Settlement Agent is required to remit to a Collection Account, or
(x) any judicial seizure, garnishment, or similar action on the Collections in the hands of a Settlement Agent that such Settlement Agent is required to remit to a Collection Account. provided that such indemnity shall not be available to any Sale and Contribution Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of a Sale and Contribution Indemnified Party or (y) to the extent the same includes losses in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in this Article IX, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be deemed to be not so qualified. If for any reason the foregoing indemnification is unavailable to any Sale and Contribution Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Sale and Contribution 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 Originators and their Affiliates, on the one hand, and such Sale and Contribution Indemnified Party, on the other hand, in the matters contemplated by this Agreement as well as the relative fault of the Originators and thier Affiliates and such Sale and Contribution 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 Originators under this Section 9.1 shall be in addition to any liability which the Originators may otherwise have, shall extend upon the same terms and conditions to the Sale and Contribution Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of such Originator and the Sale and Contribution Indemnified Parties. Any indemnification or contribution under this Section 9.1 shall survive the termination of this Agreement.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which the Company Buyer may have hereunder or under applicable law, each Originator, severally and for itself alonealone and Lyondell Chemical, jointly and severally with each Originator, hereby agrees to indemnify and hold harmless the Company Buyer and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities, penalties and related costs and expenses, costs, losses and liabilities, including reasonable Attorney Costs (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation or warranty made or deemed made by such Originator (or any employee, officer or agent of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any other Transaction Document to have been true and correct as of the date made or deemed madeDocument;
(b) the failure transfer by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold interest in any Pool Receivable or other than the related Contract transfer of any Pool Receivable and Related Security to conform the Buyer pursuant to any such applicable law, rule or regulationthis Agreement and the grant of a security interest to the Buyer pursuant to this Agreement;
(c) the failure by of such Originator to vest in comply with the Company a First Priority Interest in terms of any Transaction Document or any applicable law (including with respect to any Receivable or Related Security), or the Sold Receivables generated by nonconformity of any Pool Receivable or Related Security with any such Originatorlaw;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any commingling bankruptcy trustee or similar Person), in either case, free and clear of Collections with other fundsany Adverse Claim;
(e) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the petrochemicals or other property, products or services that are the subject of any Pool Receivable originated by such Originator); and
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an the Obligor to the payment of any Sold Receivable generated by such Originator in the Receivables Pool (including, without limitation, including a defense based on such Receivable Receivable’s or the related Contract 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 goods the petrochemicals or other property, products or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods petrochemicals or services other property, products or relating services; provided that such indemnity shall not be available to collection activities any Purchase and Sale Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the bad faith, gross negligence or willful misconduct of the Buyer, (y) result from a claim brought by such Originator against the Buyer for breach of the Buyer’s obligations under this Agreement or under any other Transaction Document, if such Originator has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction or (z) constitute recourse with respect to a Pool Receivable by reason of the bankruptcy or insolvency, or the financial or credit condition or financial default, of the related Obligor. 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 Sold Receivable Purchase and Sale Indemnified Party harmless, then each of the Originators, severally and for itself and Lyondell Chemical, jointly and severally with each Originator, shall contribute to the amount paid or any Contract related thereto (if such collection activities were performed payable by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator Purchase and Sale Indemnified Party to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or maximum extent permitted under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsapplicable law.
Appears in 1 contract
Samples: Purchase and Sale Agreement (LyondellBasell Industries N.V.)
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawApplicable Law, each OriginatorOriginator and DFBG, severally jointly and for itself aloneseverally, hereby agrees to indemnify and hold harmless the Company and Buyer, each of its Affiliatesofficers, directors, employees, agents, employeesemployees and respective assigns, officers, the Administrative Agent and directors each Purchaser (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, from and against any and all damages, claims, damageslosses, expensesjudgments, costs, losses and liabilities, penalties and related costs and expenses (including reasonable Attorney Costs Costs) (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation representation, warranty or warranty statement made or deemed made by such Originator (or any employee, officer or agent of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any of the other Transaction Document to Documents, or any information or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure transfer by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold interest in any Pool Receivable or Related Right other than the related Contract transfer of any Pool Receivable and Related Security to conform the Buyer pursuant to any such applicable law, rule or regulationthis Agreement and the grant of a security interest to the Buyer pursuant to this Agreement;
(c) the failure by such Originator to vest in comply with the Company a First Priority Interest in terms of any Transaction Document or with any Applicable Law with respect to any Pool Receivable or the Sold Receivables generated by related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such OriginatorApplicable Law;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any commingling bankruptcy trustee or similar Person), in either case, free and clear of Collections with other fundsany Adverse Claim;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable originated by such Originator);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable in the Receivables Pool (including, 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 sale of the property, products or services giving rise to such Receivable or the furnishing or failure to furnish such property, products or services;
(h) any failure of such Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(i) the commingling of Collections of Pool Receivables at any time with other funds, including any commingling in the GBG Account or any CIT Account;
(j) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(k) 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;
(l) any claim brought by any Person other than a Purchase and Sale Indemnified Party arising from any activity by such Originator or any Affiliate of such Originator in servicing, administering or collecting any Pool Receivable;
(m) the failure by such Originator to pay when due any Taxes, including, without limitation, sales, excise or personal property Taxes;
(n) any investigation, litigation, dispute or proceeding (actual or threatened) related to (A) the GBG Account or any CIT Account or any amounts on deposit therein or (B) any Intercreditor Agreement;
(o) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to any such Sold Pool Receivable or the furnishing of or failure to furnish any such goods or services or relating other similar claim or defense not arising from the financial inability of any Obligor to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)pay undisputed indebtedness;
(fp) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the or in connection with goods or services which that are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(lq) any Tax or governmental fee or charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including without limitation Attorney Costs in defending against the failure same, which are required to be paid by reason of the purchase or delay ownership of the Receivables generated by such Originator in providing or any Obligor Related Rights connected with an invoice or other evidence any such Receivables;
(r) any liability under Section 4.03 of indebtednessthe Receivables Purchase Agreement; or
(ms) any action taken by the failure Administrative Agent as attorney-in-fact for such Originator pursuant to this Agreement or any other Transaction Document to the extent such actions were taken in accordance with Applicable Law; provided that such indemnity shall not be available to any Purchase and Sale Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of a Purchase and Sale Indemnified Party or (y) constitute recourse with respect to a Pool Receivable by reason of the sale bankruptcy or insolvency, or the financial or credit condition or financial default, of the related Obligor. Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in this Article IX, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be deemed to be not so qualified. If for any reason the foregoing indemnification is unavailable to any Purchase and pledge Sale Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of such 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 such 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 such Originator under this Section shall be in addition to any liability which such 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 benefit of any Pool Receivable successors, assigns, heirs and personal representatives of such Originator and the Purchase and Sale Indemnified Parties. Any indemnification or contribution under this Section shall survive the Transaction Documents to comply with the notice requirements termination of FACA or any analogous State or local Lawsthis Agreement.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which the Company that any Indemnified Party may have hereunder or under applicable law, and whether or not any of the transactions contemplated hereby are consummated, each OriginatorOriginator hereby agrees, severally and for itself alonebut not jointly, hereby agrees to indemnify each Indemnified Party from and against, and hold each thereof harmless the Company and each of its Affiliatesfrom, agents, employees, officers, and directors (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, from and against any and all claims, damageslosses, expenses, costs, losses and liabilities, including Attorney Costs costs and expenses of any kind whatsoever (including, without limitation, reasonable attorneys’ fees and expenses of one counsel to all Indemnified Parties, exclusive of one local counsel to all Indemnified Parties, unless the interests of the Agent and the Purchasers are sufficiently divergent, in which case one additional counsel may be appointed) (all of the foregoing being collectively called referred to as “Purchase and Sale Relevant Indemnified Amounts”) arising out of of, or resulting from from, in whole or in part, the failure Transaction Documents or the activities of such Originator to perform its obligations under this Agreementin connection herewith or with any other Transaction Document or the use of proceeds of sales, or arising out transfers and assignments of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, Receivable Assets hereunder; excluding, Purchase and Sale Relevant however, Indemnified Amounts to the extent, (a) to the extent resulting from (x) the gross negligence or willful misconduct on the part of such Purchase and Sale Relevant Amounts are Indemnified Party as determined by the final non-appealable judgment of a court of competent jurisdiction by final and nonappealable judgment or (y) the failure to have resulted collect amounts in respect of an Originator Receivable to the extent such failure results from a discharge of the Obligor with respect thereto in a proceeding in respect of such Obligor under applicable bankruptcy laws or otherwise results from the fraud, gross negligence Obligor’s financial inability to pay such amounts or willful misconduct of such Purchase and Sale Indemnified Party, (b) due that are subject to the credit risk exclusions from reimbursement or payment therefor under Section 2.14 of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible the Receivables Purchase Agreement (such Indemnified Amounts excluded by the immediately preceding clauses (a) or (cb) are the “Excluded Amounts”). Neither any Indemnified Party nor any Transaction Party shall have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). Without limiting or being limited by the foregoing and whether or not any of the transactions contemplated hereby are consummated, each Originator shall pay within ten Business Days after demand to each Indemnified Party any and all amounts necessary to indemnify such Purchase Indemnified Party from and Sale Relevant against any and all Indemnified Amounts are in respect of Taxes (other than Excluded Amounts) which relate to or result from, or which would not have occurred but for, one or more of the following:
(i) any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party Receivable originally owed to such Originator for any amounts otherwise specifically provided to be paid by such becoming an Originator hereunder. Without limiting Receivable which is not at the foregoing indemnificationdate of its sale, but subject to the limitations set forth in clauses (a), (b) transfer and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:assignment hereunder an Eligible Receivable;
(aii) the failure of any representation or warranty or statement made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document or any Receivables Activity Report, Seller Report or other document delivered or to have been true and correct as of the date be delivered by such Originator in connection herewith or with any other Transaction Document being incorrect in any material respect when made or deemed mademade or delivered;
(biii) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Originator Receivable generated by originally owed to such Originator or the related Contract or any Related Security with respect thereto; or the failure failure, as a result of any Sold action or omission of such Originator, of any Originator Receivable or the related Contract or any Related Security with respect thereto to conform to any such applicable law, rule or regulation;
(civ) the failure by any action or inaction of such Originator to vest in the Company SPV a First Priority Interest first priority (subject to Permitted Liens) perfected 100% ownership interest in each Originator Receivable originally owed to such Originator and the Sold Receivables generated Related Security and Collections in respect thereof, free and clear of any Lien (except for Liens created by such Originatorthe Transaction Documents and Permitted Liens);
(dv) the failure of such Originator to have filed, or any commingling delay by such 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 Originator Receivable originally owed to such Originator and the Related Security and Collections with other fundsin respect thereof, whether at the time of the initial sale, transfer and assignment hereunder or at any subsequent time;
(evi) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an any Obligor with or against such Originator to the payment of any Sold Originator Receivable generated by originally owed to such Originator (including, without limitation, a any defense based on the fact or allegation that such Receivable or the related Contract is 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 by such Originator of the goods or services related to any such Sold Receivable or the such Originator’s furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)services;
(fvii) any failure of such Originator (and, in the case of FNIS, any failure of FNIS, as SPV’s Servicer, Servicer, or otherwise) to perform its duties, obligations or covenants under and in accordance with this Agreement or any other Transaction Document or to perform its duties or obligations under any Contract;
(viii) any product liability, personal injury, copyright infringement, theft of services, property damage, or other breach of contract, antitrust, unfair trade practices or tortious claim arising out of or in connection with any action or omission of such Originator and obligations the subject matter of any Contract or out of or in connection with any transaction contemplated by this Agreement, any other Transaction Document or any other instrument or document furnished pursuant hereto or such Contract;
(ix) the commingling by such Originator of Collections of Originator Receivables originally owed to such Originator at any time with other funds;
(x) any action or omission by such Originator, whether as SPV’s Servicer, Servicer or otherwise, reducing or impairing the rights of the SPV hereunder or of any Purchaser of a Receivable Interest under the Receivables Purchase Agreement, any other Transaction Document or any other instrument or document furnished pursuant hereto or thereto or with respect to any Originator Receivable;
(xi) any cancellation or modification of an Originator Receivable originally owed to such Originator, the related Contract or any other Related Security, whether by written agreement, verbal agreement, acquiescence or otherwise, unless such cancellation or modification was made in accordance with Section 6.2 of the provisions Receivables Purchase Agreement and the applicable Credit and Collections Policy or by or with the express consent of the Agent or a Servicer that is not FNIS or an Affiliate or Subsidiary of FNIS; provided that in no event shall Indemnified Amounts include any unpaid portion of an Originator Receivable effected by any such cancellation or modification;
(xii) (A) any investigation, litigation or proceeding related to or arising from such Originator’s execution, delivery or performance of this Agreement, any Contract other Transaction Document or any other Transaction Document instrument or document furnished by such Originator pursuant thereto, or any transaction contemplated by this Agreement or any Contract to which it is a party the extent involving such Originator, or under the Contractsownership of, or other interest in, any Originator Receivable originally owed to such Originator, the related Contract or Related Security, or (B) the use by such Originator of proceeds of any sale, transfer and assignment of any Receivable Asset hereunder;
(gxiii) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject existence of any Sold Lien (except for Liens created pursuant to the Transaction Documents and Permitted Liens) against or with respect to any Originator Receivable generated by originally owed to such Originator or Originator, the related Contract;
(h) the use , Related Security or Collections and resulting from any act or omission of any Purchase Price paid to such Originator;
(ixiv) the any failure of by such Originator to pay when due any Taxestaxes, energy surcharges including without limitation sales, excise or other governmental charges personal property taxes, payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing connection with any Obligor Originator Receivable originally owed to such Originator or the related Contract or any Related Security with an invoice or other evidence of indebtednessrespect thereto; or
(mxv) the failure any claim brought by any Person other than an Indemnified Party arising from any activity of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA such Originator or any analogous State Subsidiary of such Originator (other than the SPV) in servicing, administering or local Lawscollecting any Originator Receivable originally owed to such Originator.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Fidelity National Information Services, Inc.)
Indemnities by the Originators. Without limiting any other rights which the Company Originator Indemnified Parties may have hereunder or under applicable law, the Originators each Originator, hereby jointly and severally and for itself alone, hereby agrees agree to indemnify United Receivables I and hold harmless the Company its successors, transferees and each of its Affiliatesassigns and all officers, agentsdirectors, shareholders, controlling persons, employees, officers, counsel and directors (each other agents 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, damagesliabilities, costs and expenses, costs, losses including reasonable attorneys’ fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called referred to as “Purchase and Sale Relevant 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 arising out of or resulting from the failure as a result of such Originator to perform its obligations under this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by United Receivables I or any other Originator Indemnified Party of any interest in any Transferred Asset or any of the other transactions contemplated hereby or thereby, or otherwise arising out of or as a result of this Agreement, the claims asserted against a Purchase and Sale other Transaction Documents, the ownership or maintenance, either directly or indirectly, by United Receivables I or any other Originator Indemnified Party relating to the acquisition of any interest in any Transferred Asset or any of the Sold Receivables by the Companyother transactions contemplated hereby or thereby, excluding, Purchase and Sale Relevant however, (i) Originator Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Originator Indemnified Party, (bii) Originator Indemnified Amounts in respect of any franchise, net income or other income tax imposed on such Originator Indemnified Party by the jurisdiction in which such Indemnified Party’s principal executive office is located or in which it is organized and any political subdivision thereof, and (iii) Originator Indemnified Amounts that would provide recourse to the Originator for amounts due in respect of Receivables that are uncollectable solely due to the Obligor’s financial inability to pay or credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in default with respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunderthereto. Without limiting the foregoing indemnificationgenerality of the foregoing, but and subject to the limitations exclusions set forth in clauses (a), (b) and (c) of the previous preceding sentence, each Originator, severally for itself alone, the Originator shall indemnify each Purchase and Sale Originator Indemnified Party for Purchase and Sale Relevant Originator Indemnified Amounts relating to or resulting from:
(a) the failure of any representation or warranty made or deemed made by such any Originator (including any Originator or any of its officersAffiliates in the capacity as the Collection Agent) or any officers of any Originator (including, employees in its capacity as the Collection Agent or agentsany Affiliate of any Originator acting as Collection Agent) under or in connection with this Agreement Agreement, the Receivables Purchase Agreement, any of the other Transaction Documents, any Collection Agent Report or any other information or report delivered by any Originator pursuant hereto, or pursuant to any of the other Transaction Document to Documents which shall have been true and correct as of the date incomplete, false or incorrect in any respect when made or deemed made;
(b) the failure by such any Originator (including, in its capacity as the Collection Agent or any Affiliate of any Originator acting as Collection Agent) to comply with any applicable law, rule or regulation Law with respect to any Sold Receivable generated by such Originator Transferred Asset or the related Contract, or the nonconformity of any Transferred Asset or the related Contract or the failure of any Sold Receivable or the related Contract to conform to with any such applicable law, rule Law or regulationthe transfer or sale of any Transferred Asset in violation of applicable Law;
(c) the failure by such Originator to vest and maintain vested in United Receivables I a first priority, perfected ownership interest in the Company a First Priority Interest in the Sold Receivables generated by such OriginatorTransferred Assets free and clear of any Adverse Claim;
(d) the failure to file, or any commingling delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of Collections any applicable jurisdiction or other applicable laws with other fundsrespect to any of the Transferred Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an the Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, including a defense based on such Receivable or the related 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 goods merchandise or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods merchandise or services services, or relating to collection activities with respect to such Sold Receivable from any breach or alleged breach of any Contract provision of the Receivables or the related thereto (if such collection activities were performed by such Originator or Contracts restricting assignment of any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)Receivables;
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract products liability claim or any other Transaction Document to which it is a party personal injury or under the Contracts;
(g) any products liability, environmental property damage suit or other similar or related claim by an Obligor or other third party action of whatever sort arising out of the goods or in connection with merchandise or services which are the subject of any Sold Receivable;
(g) the transfer of an interest in any Receivable generated by such Originator or the related Contractother than an Eligible Receivable;
(h) the use failure by any 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 Purchase Price paid to such Originatorof its respective duties or obligations under the Receivables or related Contracts;
(i) the Net Investment exceeding the Net Receivables Pool Balance, minus the Required Reserves at any time prior to the Termination Date;
(j) the failure of such any Originator to pay when due any Taxessales, energy surcharges excise or other governmental charges personal property taxes payable by it in connection with any of the Sold Receivables generated by it or this AgreementReceivables;
(jk) 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) except as expressly set forth in the Transaction Documents, the commingling by any Originator of Collections of Receivables at any time with any other funds;
(m) any investigation, litigation or proceeding relating related to this Agreement, any of the other Transaction Documents or Documents, the use of proceeds of any purchase of any Transferred Asset by any Originator, the ownership of the Sold Receivables generated by such OriginatorTransferred Assets (excluding any collection costs of the Agent, any Group Agent or the Investors where the Obligor is financially unable to pay);
(kn) 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 applicable Originator to qualify to do business or file any notice of business activity report or any similar report;
(o) any attempt by any Person to void, rescind or set-aside any transfer by an Originator to United Receivables I of any Transferred Asset 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 such any Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such OriginatorReceivable;
(lq) 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 to the initial Collection Agent hereunder;
(r) the failure or delay by such Originator in providing any Obligor with an invoice or transactions contemplated hereby being characterized as other evidence than debt for the purposes of indebtednessthe Code; or
(ms) any and all amounts paid or payable by United Receivables I pursuant to the failure of the sale Seller Purchase and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local LawsContribution Agreement.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (United Rentals Inc /De)
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alonealone and Atrium, jointly and severally with each Originator, hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys' fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “Purchase and Sale Relevant Amounts”"PURCHASE AND SALE INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Companyproceeds thereof or therefrom; EXCLUDING, excludingHOWEVER, (i) Purchase and Sale Relevant Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (bii) any indemnification which has the effect of recourse for non-payment of the Receivables due to credit reasons with respect to the credit risk of an relevant Obligor and for which reimbursement would constitute recourse to (iii) any Originator for uncollectible Receivables net income or (c) franchise tax imposed on such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party by the jurisdiction under the laws of which such Purchase and Sale Indemnified Party is organized or is doing business (except to such Originator for any amounts otherwise specifically provided the extent that it is considered to be paid doing business solely as a result of the transactions contemplated by such Originator hereunderthis Agreement and the other Transaction Documents) or any political subdivision thereof. Without limiting the foregoing indemnificationforegoing, but and subject to the limitations exclusions set forth in clauses (a), (b) and (c) of the previous preceding sentence, each Originator, severally for itself alonealone and Atrium, jointly and severally with each Originator, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a1) the failure transfer by such Originator of an interest in any Receivable to any Person other than the Company;
(2) the breach of any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, or any information or report delivered by Originator pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect when made or deemed made;
(b3) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract, or the nonconformity of any Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;
(c4) the failure by such Originator to vest and maintain vested in the Company a First Priority Interest an ownership interest in the Sold Receivables generated by such 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 Purchaser or the Agent whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(5) the failure to file, or any delay in filing, by such 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 by such Originator, whether at the time of any purchase or contribution or at any subsequent time to the extent required hereunder;
(d) any commingling of Collections with other funds;
(e6) any dispute, claim, offset or defense (other than discharge in bankruptcy or similar insolvency proceeding of an ObligorObligor or other credit related reasons) of an the Obligor to the payment of any Sold Receivable or purported Receivable generated by such Originator (including, without limitation, a defense based on such Receivable Receivable's or the related Contract 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 goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods services;
(7) any product liability claim arising out of or in connection with services that are the subject of any Receivable generated by such Originator; and
(8) any tax or relating governmental fee or charge (other than any tax excluded pursuant to collection activities 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 are required to such Sold Receivable be paid by reason of the purchase or any Contract related thereto (if such collection activities were performed ownership of the Receivables generated by such 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 each of its Affiliates the Originators, severally and for itself, shall contribute to the amount paid or by any agent or independent contractor retained payable by such Originator or its Affiliates);
(f) any failure of such Originator Purchase and Sale Indemnified Party to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or maximum extent permitted under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsapplicable law.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which the Company that W1R or its assigns may have hereunder or under applicable law, each Originator, severally and for itself alone, Originator hereby agrees to indemnify (and hold harmless the Company pay upon demand to) W1R and each of its Affiliates, agents, employeesassigns, officers, managers, directors, agents and directors employees (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, damagestaxes, expensesliabilities, costs, losses expenses and liabilitiesfor all other amounts payable, including Attorney Costs reasonable attorneys' fees (which attorneys may be employees of any Indemnified Party) and disbursements (all of the foregoing being collectively called “Purchase and Sale Relevant Amounts”referred to as "INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or resulting from as a result of this Agreement or the failure acquisition, either directly or indirectly, by W1R of any U.S. Receivable originated by such Originator to perform its obligations under this AgreementOriginator, or arising out EXCLUDING, HOWEVER, in all of the claims asserted against a Purchase and Sale foregoing instances:
(a) Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by extent a final judgment of a court of competent jurisdiction by final and nonappealable judgment to have holds that such Indemnified Amounts resulted from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing seeking indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:
(a) the failure of any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to have been true and correct as of the date made or deemed made;
(b) Indemnified Amounts to the failure extent the same includes losses in respect of U.S. Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor or the related Obligor's inability or unwillingness (absent a dispute) to pay; or
(c) taxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by W1R of U.S. Receivables as a true sale by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originator;
(d) any commingling of Collections with other funds;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligor) of an Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation W1R of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from U.S. Receivables and the sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)associated Related Security;
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Laws.
Appears in 1 contract
Samples: u.s. Receivables Sale Agreement (Weatherford International Inc /New/)
Indemnities by the Originators. Without limiting any other rights which that Buyer or any of its Stockholders, any of its assignees (including the Company Secured Parties and the Administrative Agent), or any of their respective officers, directors, employees, attorneys, agents or representatives and transferees, successors and assigns (each, a “Buyer Indemnified Person”) may have hereunder or under applicable law, each Originator, severally and for itself alone, Originator hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, and directors (each of the foregoing Persons being individually called a “Purchase and Sale Buyer Indemnified Party”), forthwith on demand, Person from and against any and all claims, damages, expenses, costs, losses and liabilities, including Attorney Costs (all of the foregoing being collectively called “Purchase and Sale Relevant Amounts”) arising out of Indemnified Amounts that may be claimed or resulting from the failure of asserted against or incurred by any such Originator to perform its obligations under this Agreement, Buyer Indemnified Person in connection with or arising out of the claims asserted against transactions contemplated under this Agreement or under any other Related Document and any actions or failures to act in connection therewith, including any and all associated reasonable legal costs and expenses, or in respect of any Transferred Receivable or any Contract therefor or the use by such Originator of the Sale Price therefor; provided that no Originator shall be liable for any indemnification to a Purchase and Sale Buyer Indemnified Party relating Person to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant extent that any such Indemnified Amounts to the extent, (a) result from such Purchase and Sale Relevant Amounts are Buyer Indemnified Person’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraudjurisdiction, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) constitute recourse for uncollectible or uncollected Transferred Receivables due to the credit risk failure (without cause or justification) or inability on the part of an the related Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables perform its obligations thereunder or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse occurrence of any Purchase and Sale Indemnified Party event of bankruptcy with respect to such Originator for any amounts otherwise specifically provided Obligor. Subject to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), ) and (b) and (c) of the previous proviso in the immediately preceding sentence, but otherwise without limiting the generality of the foregoing, each Originator, severally for itself alone, Originator shall indemnify pay on demand to each Purchase Buyer Indemnified Person any and Sale all Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:
(ai) the failure of reliance on any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Related Document (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or on any other information delivered by such Originator pursuant hereto or thereto that shall have been true and correct as of the date incorrect when made or deemed mademade or delivered;
(bii) the failure by such Originator to comply with any term, provision or covenant contained in this Agreement, any other Related Document or any agreement executed in connection herewith or therewith (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality), any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Transferred Receivable or the related Contract to conform to therefor, or the nonconformity of any Transferred Receivable or the Contract therefor with any such applicable law, rule or regulation;
(ciii) the failure by such Originator to vest and maintain vested in Buyer, or to Transfer to Buyer, valid and properly perfected title to and sole record and beneficial ownership of the Company a First Priority Interest Receivables that constitute Transferred Receivables, together with all Collections in the Sold Receivables generated by such Originatorrespect thereof, free and clear of any Adverse Claim;
(d) any commingling of Collections with other funds;
(eiv) any dispute, claim, offset or defense of any Obligor (other than its discharge in bankruptcy of an Obligorbankruptcy) of an Obligor to the payment of any Sold Receivable generated by such Originator that is the subject of a Transfer hereunder (including, without limitation, including (x) a defense based on such Receivable or the related Contract therefor not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its termsterms (other than as a result of a discharge in bankruptcy), or any other claim resulting from the sale of goods the merchandise or services related giving rise to any such Sold Receivable or the furnishing of or failure to furnish such goods merchandise or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by any Originator or any Affiliate thereof acting as the Servicer or a Sub-Servicer) and (y) resulting from or in connection with any Dilution Factors);
(v) any products liability claim or other claim arising out of or in connection with merchandise, insurance or services that is the subject of any Contract;
(vi) the commingling of Collections with respect to Transferred Receivables by any Originator at any time with its other funds or the funds of any other Person;
(vii) any failure by such Originator to cause the filing of, or any delay in filing, financing statements or other similar instruments or documents under the UCC or PPSA of any applicable jurisdiction or any other applicable laws with respect to any Transferred Receivable that is the subject of a Transfer hereunder to the extent that such filing is necessary to maintain the perfection and priority of Buyer in such Receivable, whether at the time of any such Transfer or at any subsequent time;
(viii) any investigation, Litigation or proceeding related to this Agreement or the use of the Sale Price obtained in connection with any Sale or the ownership of Transferred Receivables or Collections with respect thereto or in respect of any Transferred Receivable or Contract therefor;
(ix) any claim brought by any Person other than a Buyer Indemnified Person arising from any activity by such Originator or any of its Affiliates in servicing, administering or by collecting any agent or independent contractor retained by such Originator or its Affiliates)Transferred Receivables;
(fx) any failure of such Originator (w) any Collection Account Bank to perform its duties and obligations in accordance comply with the provisions terms of this the applicable Collection Account Agreement, any Contract or any other Transaction Document (x) the Accrual Account Bank to which it is a party or under comply with the Contracts;
terms of the Accrual Account Agreement, (gy) any products liability, environmental or other claim by an Obligor or other third party arising out Concentration Account Bank to comply with the terms of the goods applicable Concentration Account Agreement or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(hz) the use of any Purchase Price paid Borrower Account Bank to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection comply with the Sold Receivables generated by it or this terms of the Borrower Account Agreement;
(jxi) any investigationwithholding, litigation deduction or proceeding relating Charge imposed upon any payments with respect to this Agreementany Transferred Receivable, any of the Borrower Assigned Agreement or any other Transaction Documents or the ownership of the Sold Receivables generated by such OriginatorBorrower Collateral;
(kxii) any action taken by such Originator (or any of its Affiliates) failure to convert Collections denominated in Canadian Dollars to Dollars in accordance with Annex X and the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtednessRelated Documents; or
(mxiii) any tax imposed under the failure Income Tax Act (Canada) arising with respect to the acquisition, holding and disposition by the Buyer of the sale and pledge Receivables from Synnex Canada, including for greater certainty, any tax arising as a result of any Pool Receivable under actions taken by the Transaction Documents Buyer (through an agent or otherwise) to comply with collect or enforce payment of the notice requirements of FACA or any analogous State or local LawsReceivables originated by Synnex Canada.
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Synnex Corp)
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, Originator hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys' fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “"Purchase and Sale Relevant Indemnified Amounts”") awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such any Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Companyproceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Relevant Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (bii) due to any indemnification which has the credit risk effect of an Obligor and recourse for which reimbursement would constitute recourse non-payment of the Receivables to any Originator for uncollectible Receivables or indemnitor (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts except as otherwise specifically provided to be paid under this Section 9.1) and (iii) any tax based upon or measured by such Originator hereundernet income or gross receipts. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentenceforegoing, each Originator, severally for itself alone, Originator agrees that it shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure transfer by such 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 such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, or any written information or report delivered by such Originator pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect in any material respect when made or deemed made;
(bc) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract, or the nonconformity of any Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;
(cd) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by such Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, whether existing at the time of the purchase of such Receivables or at any time thereafter;
(e) the failure to vest file, or any delay in filing, financing statements or other similar instruments or documents under the Company a First Priority Interest in the Sold UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by such Originator, whether at the time of any purchase or contribution or at any subsequent time;
(d) any commingling of Collections with other funds;
(ef) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an the Obligor to the payment of any Sold Receivable or purported Receivable generated by such Originator (including, without limitation, a defense based on such Receivable Receivable's or the related Contract 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 goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractsservices;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the goods or in connection with services which that are the subject of any Sold Receivable generated by such 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 such Originator or any Related Security connected with any such Receivables. If for any reason the related Contract;
(h) 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 each Originator agrees that it shall contribute to the use of any Purchase Price amount paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with such Purchase and Sale Indemnified Party to the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable maximum extent permitted under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsapplicable law.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alonealone and Patriot, hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses and liabilities, including Attorney Costs (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Company, proceeds thereof or therefrom; excluding, however, (i) Purchase and Sale Relevant Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (bii) 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 credit risk of an relevant Obligor and for which reimbursement would constitute recourse to (iii) any Originator for uncollectible Receivables net income or (c) franchise tax imposed on such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to by the jurisdiction under the laws of which such Originator for Purchase and Sale Indemnified Party is organized or any amounts otherwise specifically provided to be paid by such Originator hereunderpolitical subdivision thereof. Without limiting the foregoing indemnificationforegoing, but and subject to the limitations exclusions set forth in clauses (a), (b) and (c) of the previous preceding sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure transfer by such 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 such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, or any information or report delivered by Originator pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect when made or deemed made;
(bc) the failure by such Originator to comply with any applicable law, rule or regulation of any Governmental Authority with respect to any Sold Receivable generated by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder or the related Contract, or the nonconformity of any Receivable generated by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder or the related Contract or the failure of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;; 9205569 09039541
(cd) the failure by such Originator to vest and maintain vested in the Company a First Priority Interest an ownership interest in the Sold Receivables generated by such Originator;
(d) Originator sold, contributed or otherwise transferred or purported to be transferred hereunder free and clear of any commingling of Collections with other fundsAdverse Claim;
(e) the failure to file, or any delay in filing, by such 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 by such Originator sold or otherwise transferred or purported to be transferred hereunder, whether at the time of any purchase or contribution or at any subsequent time to the extent required hereunder;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy or similar insolvency proceeding of an ObligorObligor or other credit related reasons) of an the Obligor to the payment of any Sold Receivable or purported Receivable generated by such Originator sold or otherwise transferred or purported to be transferred hereunder (including, without limitation, a defense based on such Receivable Receivable’s or the related Contract 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 goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractsservices;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the goods or in connection with services which that are the subject of any Sold Receivable generated by such 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 are required to be paid by reason of the purchase or ownership of the Receivables generated by such Originator or any Related Security connected with any such Receivables. If for any reason the related Contract;
(h) 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 each of the use of any Purchase Price Originators, severally and for itself, shall contribute to the amount paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with such Purchase and Sale Indemnified Party to the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable maximum extent permitted under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Laws.applicable law. 9205569 09039541
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which that Buyer or any of its Stockholders, any of its assignees (including the Company Secured Parties and the Administrative Agent), or any of their respective officers, directors, employees, attorneys, agents or representatives and transferees, successors and assigns (each, a “Buyer Indemnified Person”) may have hereunder or under applicable law, each Originator, severally and for itself alone, Originator hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, and directors (each of the foregoing Persons being individually called a “Purchase and Sale Buyer Indemnified Party”), forthwith on demand, Person from and against any and all claims, damages, expenses, costs, losses and liabilities, including Attorney Costs (all of the foregoing being collectively called “Purchase and Sale Relevant Amounts”) arising out of Indemnified Amounts that may be claimed or resulting from the failure of asserted against or incurred by any such Originator to perform its obligations under this Agreement, Buyer Indemnified Person in connection with or arising out of the claims asserted against transactions contemplated under this Agreement or under any other Related Document and any actions or failures to act in connection therewith, including any and all associated reasonable legal costs and expenses, or in respect of any Transferred Receivable or any Contract therefor or the use by such Originator of the Sale Price therefor; provided that no Originator shall be liable for any indemnification to a Purchase and Sale Buyer Indemnified Party relating Person to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant extent that any such Indemnified Amounts to the extent, 727160102 10435078 25
(a) result from such Purchase and Sale Relevant Amounts are Buyer Indemnified Person’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraudjurisdiction, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) constitute recourse for uncollectible or uncollected Transferred Receivables due to the credit risk failure (without cause or justification) or inability on the part of an the related Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables perform its obligations thereunder or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse occurrence of any Purchase and Sale Indemnified Party event of bankruptcy with respect to such Originator for any amounts otherwise specifically provided Obligor. Subject to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), ) and (b) and (c) of the previous proviso in the immediately preceding sentence, but otherwise without limiting the generality of the foregoing, each Originator, severally for itself alone, Originator shall indemnify pay on demand to each Purchase Buyer Indemnified Person any and Sale all Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:
(ai) the failure of reliance on any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Related Document (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or on any other information delivered by such Originator pursuant hereto or thereto that shall have been true and correct as of the date incorrect when made or deemed mademade or delivered;
(bii) the failure by such Originator to comply with any term, provision or covenant contained in this Agreement, any other Related Document or any agreement executed in connection herewith or therewith (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality), any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Transferred Receivable or the related Contract to conform to therefor, or the nonconformity of any Transferred Receivable or the Contract therefor with any such applicable law, rule or regulation;
(ciii) the failure by such Originator to vest and maintain vested in Buyer, or to Transfer to Buyer, valid and properly perfected title to and sole record and beneficial ownership of the Company a First Priority Interest Receivables that constitute Transferred Receivables, together with all Collections in the Sold Receivables generated by such Originatorrespect thereof, free and clear of any Adverse Claim;
(d) any commingling of Collections with other funds;
(eiv) any dispute, claim, offset or defense of any Obligor (other than its discharge in bankruptcy of an Obligorbankruptcy) of an Obligor to the payment of any Sold Receivable generated by such Originator that is the subject of a Transfer hereunder (including, without limitation, including (x) a defense based on such Receivable or the related Contract therefor not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its termsterms (other than as a result of a discharge in bankruptcy), or any other claim resulting from the sale of goods the merchandise or services related giving rise to any such Sold Receivable or the furnishing of or failure to furnish such goods merchandise or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by any Originator or any Affiliate thereof acting as the Servicer or a Sub-Servicer) and (y) resulting from or in connection with any Dilution Factors);
(v) any products liability claim or other claim arising out of or in connection with merchandise, insurance or services that is the subject of any Contract;
(vi) the commingling of Collections with respect to Transferred Receivables by any Originator at any time with its other funds or the funds of any other Person; 727160102 10435078 26
(vii) any failure by such Originator to cause the filing of, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or any other applicable laws with respect to any Transferred Receivable that is the subject of a Transfer hereunder to the extent that such filing is necessary to maintain the perfection and priority of Buyer in such Receivable, whether at the time of any such Transfer or at any subsequent time;
(viii) any investigation, Litigation or proceeding related to this Agreement or the use of the Sale Price obtained in connection with any Sale or the ownership of Transferred Receivables or Collections with respect thereto or in respect of any Transferred Receivable or Contract therefor;
(ix) any claim brought by any Person other than a Buyer Indemnified Person arising from any activity by such Originator or any of its Affiliates in servicing, administering or by collecting any agent or independent contractor retained by such Originator or its Affiliates)Transferred Receivables;
(fx) any (I) failure of such Originator (w) any Collection Account Bank to perform its duties and obligations in accordance comply with the provisions terms of this the applicable Collection Account Agreement, (x) the Accrual Account Bank to comply with the terms of the Accrual Account Agreement, (y) any Contract Concentration Account Bank to comply with the terms of the applicable Concentration Account Agreement or (z) the Borrower Account Bank to comply with the terms of the Borrower Account Agreement or (II) dispute, claim, offset or defense of (w) any other Transaction Document to which it is a party or Collection Account Bank arising under the Contracts;
terms of the applicable Collection Account Agreement, (gx) the Accrual Account Bank arising under the terms of the Accrual Account Agreement, (y) any products liability, environmental or other claim by an Obligor or other third party Concentration Account Bank arising out under the terms of the goods applicable Concentration Account or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(hz) the use of any Purchase Price paid to such Originator;
(i) Borrower Account Bank arising under the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any terms of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtednessBorrower Account Agreement; or
(mxi) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents withholding, deduction or Charge imposed upon any payments with respect to comply with the notice requirements of FACA any Transferred Receivable, any Borrower Assigned Agreement or any analogous State or local Lawsother Borrower Collateral.
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Synnex Corp)
Indemnities by the Originators. Without limiting any other rights which the Company Originator Indemnified Parties may have hereunder or under applicable lawLaw, each OriginatorOriginator hereby agrees, severally jointly and for itself aloneseverally, hereby agrees to indemnify the SPV and hold harmless the Company its successors, transferees and each of its Affiliatesassigns and all officers, agentsdirectors, shareholders, controlling persons, employees, officers, counsel and directors (each other agents 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, damagesliabilities, costs and expenses, costs, losses including reasonable attorneys’ fees (which attorneys may be employees of any Originator Indemnified Party) and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called referred to as “Purchase and Sale Relevant 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 resulting from the failure as a result of such Originator to perform its obligations under this Agreement, the other Transaction Documents, the ownership or arising out maintenance, either directly or indirectly, by the SPV or any other Originator Indemnified Party of any interest in any Conveyed Receivable and Related Assets or any of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Companyother transactions contemplated hereby or thereby, excluding, Purchase and Sale Relevant however, (i) Originator Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Originator Indemnified Party, (bii) due to recourse (except as otherwise specifically provided in this Agreement or the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator Second Tier Agreement) for uncollectible Receivables or (ciii) with respect to Foreign Receivables, losses incurred due to the SPV’s inability to receive Collections with respect to such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. Foreign Receivables arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse directly as a result of any Purchase and Sale Indemnified Party Originator’s failure to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunderperfect the SPV’s security interest hereunder in jurisdictions outside the United States. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) generality of the previous sentenceforegoing, each Originator, severally for itself alone, Originator shall indemnify each Purchase and Sale Originator Indemnified Party for Purchase and Sale Relevant Originator Indemnified Amounts relating to or resulting from:
(a) the failure of any representation or warranty made or deemed made by such any Originator (or any officers of its officers, employees or agents) any Originator under or in connection with this Agreement Agreement, any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by any Originator pursuant hereto, or pursuant to any of the other Transaction Document to Documents which shall have been true and correct as of the date incomplete, false or incorrect in any respect when made or deemed made;
(b) the failure by such any Originator to comply with any applicable law, rule or regulation Law with respect to any Sold Receivable generated by such Originator or the related Contract Contract, or the failure nonconformity of any Sold Conveyed Receivable or the related Contract to conform to with any such applicable law, rule or regulationLaw;
(c) other than with respect to Foreign Receivables, the failure by such Originator to vest and maintain vested in the Company SPV a First Priority Interest first priority, perfected ownership interest in the Sold Conveyed Receivables generated by such Originatorand Related Assets, free and clear of any Adverse Claim;
(d) the failure by any commingling Originator to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of Collections any applicable jurisdiction or other applicable laws with other fundsrespect to any of the Conveyed Receivables and Related Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an the Obligor to the payment of any Sold Conveyed Receivable generated by such Originator (including, without limitation, including a defense based on such Receivable or the related 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 goods merchandise or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods merchandise or services services, or relating to collection activities with respect to such Sold Receivable from any breach or alleged breach of any Contract provision of the Conveyed Receivables or the related thereto (if such collection activities were performed by such Originator or Contracts restricting assignment of any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)Conveyed Receivables;
(f) any failure of such any Originator to perform its duties and or obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractshereof;
(g) any products liability, environmental liability claim or personal injury or property damage suit or other similar or related claim by an Obligor or other third party action of whatever sort arising out of the goods or in connection with merchandise or services which are the subject of any Sold Receivable generated by such Originator or the related ContractConveyed Receivable;
(h) the use failure by any 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 Purchase Price paid to such Originatorof its respective duties or obligations under the Conveyed Receivables or related Contracts;
(i) the failure of such any Originator to pay when due any Taxessales, energy surcharges excise or other governmental charges personal property taxes payable by it in connection with any of the Sold Receivables generated by it or this AgreementConveyed 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 funds;
(l) any investigation, litigation or proceeding relating related to this Agreement, any of the other Transaction Documents or Documents, the use of proceeds of purchases by any Originator, the ownership of the Sold Receivables generated by such OriginatorAsset Interest, or any Conveyed Receivable or Related Asset;
(km) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes pursuant to the instructions of the Master Servicer, the SPV, any Originator or the Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof, of the Second Tier Agreement and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or 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 failure of any Originator to qualify to do business or file any notice of business activity report or any similar report;
(o) 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;
(p) any action taken by such any Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such OriginatorConveyed Receivable;
(lq) the failure or delay by such Originator in providing use of the proceeds of any Obligor with an invoice or other evidence of indebtednessPurchase hereunder; or
(mr) any and all amounts paid or payable by the failure SPV pursuant to Sections 9.3, 9.4 or 9.5 of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local LawsSecond Tier Agreement.
Appears in 1 contract
Samples: Sale Agreement (Valvoline Inc)
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alonealone and Cooper, jointly and severally with each Originator, hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys’ fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Company, proceeds thereof or therefrom; excluding, however, (i) Purchase and Sale Relevant Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (bii) 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 credit risk of an relevant Obligor and for which reimbursement would constitute recourse to (iii) any Originator for uncollectible Receivables net income or (c) franchise tax imposed on such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to by the jurisdiction under the laws of which such Originator for Purchase and Sale Indemnified Party is organized or any amounts otherwise specifically provided to be paid by such Originator hereunderpolitical subdivision thereof. Without limiting the foregoing indemnificationforegoing, but and subject to the limitations exclusions set forth in clauses (a), (b) and (c) of the previous preceding sentence, each Originator, severally for itself alonealone and Cooper, jointly and severally with each Originator, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure transfer by such 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 such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, or any information or report delivered by Originator pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect when made or deemed made;
(bc) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder or the related Contract, or the nonconformity of any Receivable generated by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder or the related Contract or the failure of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;
(cd) the failure by such Originator to vest and maintain vested in the Company a First Priority Interest an ownership interest in the Sold Receivables generated by such Originator;
(d) Originator sold, contributed or otherwise transferred or purported to be transferred hereunder free and clear of any commingling of Collections with other fundsAdverse Claim;
(e) the failure to file, or any delay in filing, by such 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 by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder, whether at the time of any purchase or contribution or at any subsequent time to the extent required hereunder;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy or similar insolvency proceeding of an ObligorObligor or other credit related reasons) of an the Obligor to the payment of any Sold Receivable or purported Receivable generated by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder (including, without limitation, a defense based on such Receivable Receivable’s or the related Contract 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 goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractsservices;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the goods or in connection with services which that are the subject of any Sold Receivable generated by such 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 are required to be paid by reason of the purchase or ownership of the Receivables generated by such Originator or any Related Security connected with any such Receivables. If for any reason the related Contract;
(h) 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 each of the use of any Purchase Price Originators, severally and for itself and Cooper, jointly and severally with each Originator, shall contribute to the amount paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with such Purchase and Sale Indemnified Party to the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable maximum extent permitted under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsapplicable law.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cooper Tire & Rubber Co)
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawLaw, each Originator, Originator hereby severally and for itself alone, hereby agrees to indemnify and hold harmless the Company Buyer, Regions Bank (as the Buyer’s assignee), and each of its Affiliatestheir respective officers, directors, employees, agents, employees, officers, employees and directors Affiliates (each of the foregoing Persons being individually called a an “Purchase and Sale Originator Indemnified Party”), forthwith on demand, from and against any and all damages, claims, damageslosses, expensesjudgments, costs, losses and liabilities, penalties and related costs and expenses (including reasonable Attorney Costs Costs) (all of the foregoing being collectively called “Purchase and Sale Relevant Originator Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation or warranty made or deemed made by such Originator (or any employee, officer or agent of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any of the other Transaction Document to Documents, or any information or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the transfer by such Originator of any interest in any Pool Receivable or Related Right other than the transfer of any Pool Receivable and Related Security to the Buyer pursuant to this Agreement and the grant of a security interest to the Buyer pursuant to this Agreement;
(c) the failure by such Originator to comply with the terms of any Transaction Document or with any applicable law, rule or regulation Law with respect to any Sold Pool Receivable generated by such Originator or the related Contract Contract; or the failure of any Sold Pool Receivable or the related Contract to conform to any such applicable law, rule or regulationLaw;
(cd) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable Laws with respect to any Pool Receivable originated by such Originator or the Related Rights;
(f) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable originated by such Originator);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable in the Receivables Pool originated by such Originator (including a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the property, products or services giving rise to such Receivable or the furnishing or failure to furnish such property, products or services;
(h) any failure of such Originator to perform any of its covenants, duties or obligations in accordance with the provisions of this Agreement and of each other Transaction Document to which it is a party or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable originated by it;
(i) the commingling of Collections of Pool Receivables originated by such Originator at any time with other funds other than Collections of other Pool Receivables;
(j) such Originator’s failure or delay to provide any Obligor of a Receivable originated by such Originator with an invoice or other evidence of indebtedness;
(k) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or in respect of any Pool Receivable originated by such Originator or any Related Rights;
(l) any claim brought by any Person other than an Originator Indemnified Party arising from any activity by such Originator in servicing, administering or collecting any Pool Receivable;
(m) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originatorpay when due any Taxes, including, without limitation, sales, excise or personal property taxes;
(d) any commingling of Collections with other funds;
(en) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Pool Receivable generated originated by such Originator (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to any such Sold Pool Receivable or the furnishing of or failure to furnish any such goods or services or relating other similar claim or defense not arising from the financial inability of any Obligor to collection activities pay undisputed indebtedness;
(o) any products or professional liability, personal injury or damage suit, or other similar claim arising out of or in connection with respect merchandise, insurance or services that gave rise to such Sold any Receivable or any Contract related thereto (if such collection activities were performed originated by such Originator or of any of its Affiliates Contract or by any agent or independent contractor retained by such Originator or its Affiliates)Invoice related thereto;
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(lp) the failure or delay by such Originator in providing to provide any Obligor of a Receivable originated by such Originator with an invoice or other evidence of indebtedness;
(q) any tax or governmental fee or charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including without limitation, reasonable Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or ownership of the Receivables generated by such Originator or any Related Rights connected with any such Receivables;
(r) any liability under Section 5.03 of the Receivables Purchase Agreement;
(s) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document to which such Originator is a party, the transactions contemplated hereby or thereby, the use of the proceeds of any sale, the SPE’s ownership interest in the Receivables and Related Rights or any other investigation, litigation or proceeding relating to such Originator or the Receivables and Rights in which any Originator Indemnified Party becomes involved as a result of any of the transactions contemplated hereby or thereby; or
(mt) any action taken by Regions Bank as attorney-in-fact for such Originator pursuant to this Agreement or any other Transaction Document; provided that such indemnity shall not be available to any Originator Indemnified Party to the failure extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of an Originator Indemnified Party or (y) constitute recourse with respect to a Pool Receivable by reason of the sale and pledge bankruptcy or insolvency, or the financial or credit condition or financial default, of the related Obligor. Notwithstanding anything to the contrary in this Agreement, solely for purposes of any Pool Receivable under Originator’s indemnification obligations in this Article IX, any representation, warranty or covenant qualified by the Transaction Documents occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality shall be deemed to comply with the notice requirements of FACA or any analogous State or local Lawsbe not so qualified.
Appears in 1 contract
Samples: Receivables Sale and Contribution Agreement (StarTek, Inc.)
Indemnities by the Originators. Without limiting any other rights which the Company Buyer may have hereunder or under applicable lawApplicable Law, each Originator, severally and for itself alone, hereby agrees to indemnify and hold harmless the Company Buyer and each of its Affiliatesofficers, directors, employees, agents, employees, officers, and directors its successors and assigns (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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys’ fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Company, proceeds thereof or therefrom; excluding, however, (i) Purchase and Sale Relevant Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (bii) 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 credit risk of an relevant Obligor and for which reimbursement would constitute recourse to (iii) any Originator for uncollectible Receivables net income or (c) franchise tax imposed on such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party by the jurisdiction under the laws of which such Purchase and Sale Indemnified Party is organized, where it is subject to such Originator net income or franchise tax for reasons unrelated to the transactions contemplated hereby or where its principal executive office is located or any amounts otherwise specifically provided to be paid by such Originator hereunderpolitical subdivision thereof. Without limiting the foregoing indemnificationforegoing, but and subject to the limitations exclusions set forth in clauses (a), (b) and (c) of the previous preceding sentence, each Originator, severally for itself aloneseverally, 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 Relevant Indemnified Party from and against any and all Purchase and Sale Indemnified Amounts relating to or resulting from:
(a) the failure transfer by such Originator of an interest in any Receivable to any Person other than the Buyer;
(b) the breach of any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, or any information or report delivered by Originator pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect when made or deemed made;
(b) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables comply with any Applicable Law with respect to any Receivable generated by such OriginatorOriginator sold or otherwise transferred or purported to be transferred hereunder or the related Contract, or the nonconformity of any Receivable generated by such Originator sold or otherwise transferred or purported to be transferred hereunder or the related Contract with any such Applicable Law;
(d) the failure by such Originator to vest and maintain vested in the Buyer an ownership interest in the Receivables generated by such Originator sold or otherwise transferred or purported to be transferred hereunder free and clear of any commingling of Collections with other fundsAdverse Claim;
(e) the failure to file, or any delay in filing, by such 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 by such Originator sold or otherwise transferred or purported to be transferred hereunder, whether at the time of any purchase or at any subsequent time to the extent required hereunder;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy or similar insolvency proceeding of an ObligorObligor or other credit related reasons) of an the Obligor to the payment of any Sold Receivable or purported Receivable generated by such Originator sold or otherwise transferred or purported to be transferred hereunder (including, without limitation, a defense based on such Receivable Receivable’s or the related Contract 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 goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractsservices;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of or in connection with the goods products or services which that are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(lh) the failure commingling of Collections of Receivables at any time with other funds; and
(i) any tax or delay 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 are required to be paid by reason of the purchase or ownership of the Receivables generated by such Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in providing any Obligor with an invoice this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or other evidence of indebtedness; or
(m) the failure is insufficient to hold such Purchase and Sale Indemnified Party harmless, then each of the sale Originators, severally with each other Originator, shall contribute to the amount paid or payable by such Purchase and pledge of any Pool Receivable Sale Indemnified Party to the maximum extent permitted under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local LawsApplicable Law.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Alliance Resource Partners Lp)
Indemnities by the Originators. (a) Without limiting any other rights which the Company Purchaser may have hereunder or under applicable law, each Originator, severally and for itself alone, Originator hereby agrees to indemnify the Purchaser and hold harmless the Company its assigns and each of its Affiliatestransferees (each, agents, employees, officers, and directors (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, claims, damageslosses, liabilities and related costs and expenses, costs, losses including reasonable attorneys' fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “Purchase and Sale Relevant referred to as "Indemnified Amounts”) "), awarded against or incurred by any Indemnified Party arising out of or resulting from as a result of any of the failure following:
(i) the characterization (A) in any Borrower Report, Weekly Report, Daily Report or (B) for the purpose of inclusion of a Transferred Receivable in the Net Receivables Pool Balance in any other written statement made by such Originator to perform its obligations under this Agreementthe Program Agent, or arising out of any Transferred Receivable as an Eligible Receivable which is not an Eligible Receivable as of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) date on which such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:information was certified;
(aii) the failure of any representation or warranty or statement made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, which shall have been true and correct as of the date incorrect in any respect when made or deemed made;
(biii) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator Transferred Asset or the related Contract Contract; or the failure of any Sold Receivable Transferred Asset or the related Contract to conform to any such applicable law, rule or regulation;
(civ) the failure by such Originator to vest and maintain vested in the Company Purchaser absolute ownership of the Transferred Assets that are, or that purport to be, the subject of a First Priority Interest in the Sold Receivables generated by such OriginatorPurchase under this Agreement, free and clear of any Adverse Claim;
(d) any commingling of Collections with other funds;
(ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Receivable generated by that is, or that purports to be, the subject of a Purchase under this Agreement from such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliatesacting as Servicer);
(fvi) any failure of such Originator to perform its duties and obligations comply with any term, provision or covenant contained in accordance with the provisions of this Agreement, any Contract Agreement or any other Transaction Document to which it is a party or to perform its duties or obligations under the Contractsany Contract related to a Transferred Receivable;
(gvii) any products liability, environmental liability or other claim by an Obligor or other third party arising out of the or in connection with goods or services which are the subject of any Sold Contract related to a Transferred Receivable generated originated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(iviii) the commingling of Collections of Transferred Assets by such Originator (or a designee of such Originator), as Servicer or otherwise, at any time with other funds;
(ix) any investigation, litigation or proceeding related to this Agreement or any other Transaction Document to which such Originator is a party or the use of proceeds of Purchases by such Originator or in respect of any Transferred Asset with respect thereto;
(x) any claim brought by any Person other than an Indemnified Party arising from any activity such Originator or any designee of such Originator in servicing, administering or collecting any Transferred Asset;
(xi) the sale by any Originator of any Receivable Asset in violation of any applicable law, rule or regulation;
(xii) any Adverse Claim attaching to any Transferred Asset or any Originator Collateral with respect thereto, except a Lien created under the Transaction Documents;
(xiii) the failure to pay when due any and all Other Taxes and the payment by such Indemnified Party of Taxes;
(xiv) any failure by the Purchaser to give reasonably equivalent value to such Originator in consideration for the transfer by such Originator to the Purchaser of any Transferred Assets, or any attempt by any Person to void any Purchases under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code;
(xv) the failure of any Lockbox processor or Deposit Bank to remit any amounts or items of payment held in a Lockbox or Deposit Account pursuant to the instructions of the Program Agent given in accordance with the Financing Agreement, the applicable Deposit Account Agreement or the other Transaction Documents, whether by reason of the exercise of setoff rights or otherwise;
(xvi) the failure of such Originator to furnish accurate and complete documentation (including, without limitation, a Contract or invoice) to any Obligor; and
(xvii) any Transferred Receivable becoming (in whole or in part) a Diluted Receivable.
(b) It is expressly agreed and understood by the parties hereto (i) that the foregoing indemnification is not intended to, and shall not, constitute a guarantee of the collectibility or payment of the Transferred Assets and (ii) that nothing in this Section 6.01 shall require any Originator to indemnify any Person (A) for Transferred Receivables which are not collected, not paid or uncollectible on account of the insolvency, bankruptcy, or financial inability to pay when due of the applicable Obligor or (B) for damages, losses, claims or liabilities or related costs or expenses to the extent found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from such Person's gross negligence or willful misconduct. In no event, however, shall Originators be liable for punitive damages other than arising from a third party claim.
(c) Any amounts subject to the indemnification provisions of this Section 6.01 shall be paid by the Originators to the related Indemnified Party within five (5) Business Days 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 Taxesrepresentation, energy surcharges warranty or other governmental charges payable covenant qualified by it 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 any Originator or any of their security holders or creditors for or in connection with the Sold Receivables generated transactions contemplated hereby, except to the extent such liability is determined in a final non-appealable judgment by it a court of competent jurisdiction to have resulted primarily from such Indemnified Party's gross negligence or this willful misconduct or breach of its obligations under the Financing Agreement;
. In no event, however, shall any Indemnified Party be liable on any theory of liability for any special, indirect, consequential or punitive damages (j) any investigationincluding, litigation or proceeding relating to this Agreementwithout limitation, any loss of the other Transaction Documents profits, business or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsanticipated savings).
Appears in 1 contract
Samples: Originator Purchase Agreement (Hayes Lemmerz International Inc)
Indemnities by the Originators. Without limiting any other rights which the Company Originator Indemnified Parties may have hereunder or under applicable lawLaw, each OriginatorOriginator hereby agrees, severally jointly and for itself aloneseverally, hereby agrees to indemnify the SPV and hold harmless the Company its successors, transferees and each of its Affiliatesassigns and all officers, agentsdirectors, shareholders, controlling persons, employees, officers, counsel and directors (each other agents 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, damagesliabilities, costs and expenses, costs, losses including reasonable attorneys’ fees (which attorneys may be employees of any Originator Indemnified Party) and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called referred to as “Purchase and Sale Relevant 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 resulting from the failure as a result of such Originator to perform its obligations under this Agreement, the other Transaction Documents, the ownership or arising out maintenance, either directly or indirectly, by the SPV or any other Originator Indemnified Party of any interest in any Conveyed Receivable and Related Assets or any of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Companyother transactions contemplated hereby or thereby, excluding, Purchase and Sale Relevant however, (i) Originator Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Originator Indemnified Party, (bii) due to recourse (except as otherwise specifically provided in this Agreement or the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator Second Tier Agreement) for uncollectible Receivables or (ciii) with respect to Foreign Receivables, losses incurred due to the SPV’s inability to receive Collections with respect to such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. Foreign Receivables arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse directly as a result of any Purchase and Sale Indemnified Party Originator’s failure to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunderperfect the SPV’s security interest hereunder in jurisdictions outside the United States. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) generality of the previous sentenceforegoing, each Originator, severally for itself alone, Originator shall indemnify each Purchase and Sale Originator Indemnified Party for Purchase and Sale Relevant Originator Indemnified Amounts relating to or resulting from:
(a) the failure of any representation or warranty made or deemed made by such any Originator (or any officers of its officers, employees or agents) any Originator under or in connection with this Agreement Agreement, any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by any Originator pursuant hereto, or pursuant to any of the other Transaction Document to Documents which shall have been true and correct as of the date incomplete, false or incorrect in any respect when made or deemed made;
(b) the failure by such any Originator to comply with any applicable law, rule or regulation Law with respect to any Sold Receivable generated by such Originator or the related Contract Contract, or the failure nonconformity of any Sold Conveyed Receivable or the related Contract to conform to with any such applicable law, rule or regulationLaw;
(c) other than with respect to Foreign Receivables, the failure by such Originator to vest and maintain vested in the Company SPV a First Priority Interest first priority, perfected ownership interest in the Sold Conveyed Receivables generated by such Originatorand Related Assets, free and clear of any Adverse Claim;
(d) the failure by any commingling Originator to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of Collections any applicable jurisdiction or other applicable laws with other fundsrespect to any of the Conveyed Receivables and Related Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an the Obligor to the payment of any Sold Conveyed Receivable generated by such Originator (including, without limitation, including a defense based on such Receivable or the related 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 goods merchandise or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods merchandise or services services, or relating to collection activities with respect to such Sold Receivable from any breach or alleged breach of any Contract provision of the Conveyed Receivables or the related thereto (if such collection activities were performed by such Originator or Contracts restricting assignment of any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)Conveyed Receivables;
(f) any failure of such any Originator to perform its duties and or obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractshereof;
(g) any products liability, environmental liability claim or personal injury or property damage suit or other similar or related claim by an Obligor or other third party action of whatever sort arising out of the goods or in connection with merchandise or services which are the subject of any Sold Receivable generated by such Originator or the related ContractConveyed Receivable;
(h) the use of failure by any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due comply with any Taxesterm, energy surcharges provision or other governmental charges payable by it covenant contained in connection with the Sold Receivables generated by it this Agreement or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents to which it is a party or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or to perform any of its Affiliates) in the enforcement respective duties or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable obligations under the Transaction Documents to comply with the notice requirements of FACA Conveyed Receivables or any analogous State or local Laws.related Contracts;
Appears in 1 contract
Samples: Sale Agreement (Ashland Inc.)
Indemnities by the Originators. Without limiting any other rights which the Company that Buyer may have hereunder or under applicable law, each Originator, severally and for itself alone, Originator hereby agrees to indemnify (and hold harmless the Company pay upon demand to) Buyer and each of its assigns (and their respective Affiliates, agents, employees), officers, directors, agents and directors employees (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, damagestaxes, expensesliabilities, costs, losses expenses and liabilitiesfor all other amounts payable, including Attorney Costs reasonable attorneys’ fees (which attorneys may be employees of Buyer or any such assign) and disbursements (all of the foregoing being collectively called referred to as “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure as a result of such Originator to perform its obligations under this Agreement, or arising out the use of proceeds of any purchase hereunder, or the claims asserted against a Purchase and Sale Indemnified Party relating to acquisition, funding or ownership either directly or indirectly, by Buyer of an interest in the acquisition Receivables, or any Receivable or any Contract or Related Security, or any action or inaction of the Sold Receivables by the Companysuch Originator, excluding, Purchase and Sale Relevant however:
(a) Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by extent a final judgment of a court of competent jurisdiction by final and nonappealable judgment to have holds that such Indemnified Amounts resulted from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale the Indemnified Party, Party seeking indemnification;
(b) due Indemnified Amounts to the credit risk extent the same includes losses in respect of an Obligor and for which reimbursement would constitute recourse to any Originator for Receivables that are uncollectible Receivables on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(c) taxes imposed by the jurisdiction in which such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent lossesIndemnified Party’s principal executive office is located, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit on or measured by the liability overall net income of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to the extent that the computation of such Originator taxes is consistent with the characterization for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) income tax purposes of the previous sentenceacquisition by the Purchasers of Asset Portfolio under the Purchase Agreement as a loan or loans by the Purchasers to Buyer secured by, each Originatoramong other things, severally for itself alonethe Receivables, shall indemnify each Purchase the Related Security and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:the Collections;
(ai) the failure of any representation or warranty made or deemed made by such Originator (or any officers of its officers, employees or agentssuch Originator) under or in connection with this Agreement or Agreement, any other Transaction Document to or any other information or report delivered by such Originator pursuant hereto or thereto that shall have been true and correct as of the date false or incorrect when made or deemed made;
(bii) the failure by such Originator Originator, to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or Contract related thereto, or the related Contract or the failure nonconformity of any Sold Receivable or the related Contract to conform to included therein with any such applicable law, rule or regulationregulation or any failure of such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(ciii) the any failure by of such Originator to vest perform its duties, covenants or other obligations in accordance with the Company a First Priority Interest in the Sold Receivables generated by such Originatorprovisions of this Agreement or any other Transaction Document;
(div) any commingling products liability, personal injury or damage, suit or other similar claim arising out of Collections or in connection with other fundsmerchandise, insurance or services that are the subject of any Contract or any Receivable;
(ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Receivable generated by of such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods the merchandise or services service related to any such Sold Receivable or the furnishing of or failure to furnish such goods merchandise or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)services;
(fvi) any failure the commingling of Collections of Receivables of such Originator to perform its duties and obligations in accordance at any time with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractsfunds;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(jvii) any investigation, litigation or proceeding relating related to or arising from this AgreementAgreement or any other Transaction Document, any the transactions contemplated hereby, the use of the other Transaction Documents or proceeds of any Purchase, the ownership of the Sold Receivables generated by of such OriginatorOriginator or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(kviii) any inability to litigate any claim against any Obligor in respect of any Receivable of such Originator as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Termination Event described in Section 5.1(d);
(x) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables of such Originator and the Collections, and all of such Originator’s right, title and interest in the Related Security associated with the Receivables of such Originator, in each case, free and clear of any Adverse Claim;
(xi) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable of such Originator and the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of the Purchase or at any subsequent time;
(xii) any action taken or omission by such Originator (which reduces or impairs the rights of Buyer with respect to any Receivable of its Affiliates) in such Originator or the enforcement or collection value of any Sold Receivable generated by such OriginatorReceivable;
(lxiii) any attempt by any Person to void the failure Purchase hereunder under statutory provisions or delay by such Originator in providing any Obligor with an invoice common law or other evidence of indebtedness; orequitable action;
(mxiv) the failure of any Receivable of such Originator included in the sale and pledge calculation of any Pool the Net Portfolio Balance as an Eligible Receivable under to be an Eligible Receivable at the Transaction Documents to comply with time so included; and
(xv) the notice requirements of FACA or any analogous State or local LawsHedging Obligations.
Appears in 1 contract
Samples: Receivables Sale Agreement (Patterson Companies, Inc.)
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawApplicable Law, each Originator, severally jointly and for itself aloneseverally, hereby agrees to indemnify the Buyer, the Credit Parties (as assignees of the Buyer), the Affected Persons (as assignees of the Buyer) and hold harmless the Company and each of its Affiliates, agents, employeestheir respective assigns, officers, directors, agents and directors employees (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, ) from and against any and all claimsloss, damagesliability, expensesexpense, costsdamage or injury suffered or sustained by reason of (i) any failure of such Originator to comply with any of its covenants, losses and liabilitiesobligations or agreements contained in this Agreement or any other Transaction Document to which it is a party or such Originator’s gross negligence, (ii) the breach of any representation or warranty made or deemed made by such Originator under or in connection with this Agreement or any of the other Transaction Documents to which it is a party or (iii) willful misconduct in the performance of its duties or obligations under this Agreement or any other Transaction Document to which it is a party, including any judgment, award, settlement, Attorney Costs and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim (all of the foregoing being collectively called referred to as, “Purchase and Sale Relevant Indemnified Amounts”) arising out of or resulting from the failure of such Originator to perform its obligations under this Agreement, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder). Without limiting or being limited by the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentenceforegoing, each Originator, severally for itself alonejointly and severally, shall indemnify pay on demand, to each Purchase and Sale Indemnified Party for any and all amounts necessary to indemnify such Purchase and Sale Relevant Indemnified Party from and against any and all Purchase and Sale Indemnified Amounts relating to or resulting fromfrom any of the following:
(a) the failure breach of any representation or warranty made or deemed made by such Originator (or any employee, officer or agent of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any of the other Transaction Document Documents to which it is a party, or any information or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure transfer by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold interest in any Receivable or Related Right sold or purportedly sold to Buyer hereunder other than the related Contract transfer of any Receivable and Related Security to conform the Buyer pursuant to any such applicable law, rule or regulationthis Agreement and the grant of a security interest to the Buyer pursuant to this Agreement;
(c) the failure by such Originator to vest in comply with the Company a First Priority Interest in terms of any Transaction Document or with any Applicable Law with respect to any Receivable or the Sold Receivables generated by related Contract; or the failure of any Receivable or the related Contract to conform to any such OriginatorApplicable Law on or prior to the applicable Sale Date for such Receivable;
(d) the lack by the Buyer of an enforceable ownership interest, or a first priority perfected security interest, in the Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any commingling bankruptcy trustee or similar Person), in either case, free and clear of Collections with other fundsany Adverse Claim;
(e) the failure of such Originator to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to the transfer by such Originator to the Buyer of any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the chemicals or other property, products or services that are the subject of any Pool Receivable originated by such Originator) that is related to any act or omission by such Originator on or prior to the applicable Sale Date for such Receivable;
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an the Obligor to the payment of any Sold Receivable generated by such Originator in the Receivables Pool (including, without limitation, including a defense based on such Receivable Receivable’s or the related Contract 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 goods the goods, products or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods goods, products or services services, in each case, that is related to any act or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed omission by such Originator on or any of its Affiliates or by any agent or independent contractor retained by prior to the applicable Sale Date for such Originator or its Affiliates)Receivable;
(fh) any failure of such Originator to perform any its duties and or obligations in accordance with the provisions hereof and of this Agreement, any Contract or any each other Transaction Document to which it is a party related to Pool Receivables or under to timely and fully comply with the Contracts;
(g) any products liabilityCredit and Collection Policy in regard to each Pool Receivable, environmental in each case, on or other claim by an Obligor or other third party arising out of prior to the goods or services which are the subject of any Sold Receivable generated by applicable Sale Date for such Originator or the related Contract;
(h) the use of any Purchase Price paid to such OriginatorReceivable;
(i) the failure commingling by the Originator of such Originator to pay when due Collections of Pool Receivables at any Taxes, energy surcharges or time with other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreementfunds;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by of such Originator in providing to provide any Obligor with an invoice or other evidence of indebtedness; orindebtedness that such Originator is obligated to provide;
(k) any investigation, litigation or proceeding (actual or threatened) that is related to any act or omission by such Originator related to this Agreement or any other Transaction Document or in respect of any Pool Receivable or any Related Rights;
(l) [Reserved];
(m) the failure by such Originator to pay when due any taxes required to be paid by such Originator, including, without limitation, sales, excise or personal property taxes;
(n) [Reserved];
(o) any product liability claim arising out of or in connection with goods or services that are the subject of any Receivable generated by such Originator; or
(p) any tax (without duplication for a tax described in clause (m) above) or governmental fee or charge (other than a tax), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including without limitation Attorney Costs in defending against the same, which are required to be paid in connection with the transfer of the sale Receivables and pledge Related Rights by such Originator to the Buyer; provided that such indemnity shall not be available to any Purchase and Sale Indemnified Party to the extent that such Purchase and Sale Indemnified Amounts (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from such Purchase and Sale Indemnified Party’s gross negligence or willful misconduct or (y) include losses in respect of Pool Receivables that are uncollectible solely on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor. If for any Pool Receivable 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 each of the Originators, jointly and severally, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local LawsApplicable Law.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, and VWR, jointly and severally with each Originator, hereby agrees to indemnify and hold harmless harmless, on an after-tax basis, the Company and each of its Affiliates, agents, employees, officers, directors, employees and directors agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on within five (5) Business Days following demand, from and against any and all damages, losses, claims, damagesjudgments, liabilities, penalties, Taxes, reasonable costs and expenses, costs, losses and liabilities, (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Companyproceeds thereof or therefrom, excluding, only Purchase and Sale Relevant Indemnified Amounts to the extent, (ai) such Purchase and Sale Relevant Amounts are determined by a final judgment of a court of competent jurisdiction by final holds that such Purchase and nonappealable judgment to have Sale Indemnified Amounts resulted from the frauda breach of law, gross breach of this Agreement, bad faith, negligence or willful misconduct of such the Purchase and Sale Indemnified PartyParty seeking indemnification, (bii) due to the credit risk of an the Obligor and for which reimbursement would constitute recourse to any Originator Originator, for uncollectible Receivables or (ciii) such Purchase and Sale Relevant Indemnified Amounts are in respect include Taxes imposed or based on, or measured by, the gross or net income or receipts of Taxes other than such Purchase and Sale Indemnified Party by the jurisdiction under the laws of which such Purchase and Sale Indemnified Party is organized (or any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claimpolitical subdivision thereof); provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (ai), (bii) and (ciii) of the previous sentence, each Originator, severally for itself alone, and VWR, jointly and severally with each Originator, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure of any representation Receivable sold by such Originator included in the calculation of Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable, the failure of any information contained in any Information Package or Weekly Report furnished by such Originator, as applicable, to be true and correct, or the failure of any other information provided by such Originator Company with respect to the Receivables or this Agreement to be true and correct;
(b) the transfer by such Originator of an interest in any Receivable to any Person other than the Company;
(c) the failure of any representation, warranty or statement made or deemed made by such Originator (or any of its officersemployee, employees officer or agentsagent or such Originator) under or in connection with this Agreement or any other Transaction Document Document, or any information or report delivered by such Originator pursuant hereto or thereto, to have been true and correct as of the date made or deemed mademade in all respects;
(bd) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator sold or otherwise transferred or purported to be transferred hereunder or the related Contract, or the nonconformity of any Receivable generated by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder or the related Contract or the failure of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;
(ce) the failure by such Originator to vest and maintain vested in the Company a First Priority Interest an ownership interest in the Sold Receivables generated by such OriginatorOriginator sold or otherwise transferred or purported to be transferred hereunder free and clear of any Adverse Claim (other than Permitted Liens);
(df) any commingling of Collections funds to which the Company, the Administrator, any Purchaser Agent or any Purchaser is entitled hereunder with any other funds;
(eg) the failure to have filed, or any delay in filing, by such 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 by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder, whether at the time of any purchase or contribution or at any subsequent time;
(h) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligor) of an the Obligor to the payment of any Sold Receivable or purported Receivable generated by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder (including, without limitation, a defense based on such Receivable Receivable’s or the related Contract 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 or lease of goods or the rendering of services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)Originator) with respect to such Receivable;
(fi) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreementparty;
(j) any investigation, litigation action taken by the Company or proceeding relating the Administrator or an attorney-in-fact for such Originator pursuant to this Agreement, Agreement or any of the other Transaction Documents or the ownership of the Sold Receivables generated by such OriginatorDocument;
(k) any environmental liability claim, products liability claim or personal injury or property damage suit or other similar or related claim or action taken by such Originator (of whatever sort, arising out of or in connection with any Receivable or any other suit, claim or action of its Affiliates) in whatever sort relating to any of the enforcement or collection of any Sold Receivable generated by such Originator;Transaction Documents; and
(l) any Tax or governmental fee or charge (other than any Tax excluded pursuant to clause (iii) in the failure proviso to the preceding sentence), all interest and penalties thereon or delay with respect thereto, and all out-of-pocket costs and expenses, including the Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or ownership of the Receivables generated by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State 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 local Lawsis insufficient to hold such Purchase and Sale Indemnified Party harmless, then each Originator, severally and for itself alone, and VWR, jointly and severally with each 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
Indemnities by the Originators. Without limiting any other rights which that Buyer or any of its Stockholders, any of its assignees (including the Company Secured Parties and the Administrative Agent), or any of their respective officers, directors, employees, attorneys, agents or representatives and transferees, successors and assigns (each, a “Buyer Indemnified Person”) may have hereunder or under applicable law, each Originator, severally and for itself alone, Originator hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, and directors (each of the foregoing Persons being individually called a “Purchase and Sale Buyer Indemnified Party”), forthwith on demand, Person from and against any and all claims, damages, expenses, costs, losses and liabilities, including Attorney Costs (all of the foregoing being collectively called “Purchase and Sale Relevant Amounts”) arising out of Indemnified Amounts that may be claimed or resulting from the failure of asserted against or incurred by any such Originator to perform its obligations under this Agreement, Buyer Indemnified Person in connection with or arising out of the claims asserted against transactions contemplated under this Agreement or under any other Related Document and any actions or failures to act in connection therewith, including any and all associated reasonable legal costs and expenses, or in respect of any Transferred Receivable or any Contract therefor or the use by such Originator of the Sale Price therefor; provided that no Originator shall be liable for any indemnification to a Purchase and Sale Buyer Indemnified Party relating Person to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant extent that any such Indemnified Amounts to the extent, (a) result from such Purchase and Sale Relevant Amounts are Buyer Indemnified Person’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraudjurisdiction, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) constitute recourse for uncollectible or uncollected Transferred Receivables due to the credit risk failure (without cause or justification) or inability on the part of an the related Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables perform its obligations thereunder or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse occurrence of any Purchase and Sale Indemnified Party event of bankruptcy with respect to such Originator for any amounts otherwise specifically provided Obligor. Subject to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), ) and (b) and (c) of the previous proviso in the immediately preceding sentence, but otherwise without limiting the generality of the foregoing, each Originator, severally for itself alone, Originator shall indemnify pay on demand to each Purchase Buyer Indemnified Person any and Sale all Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:
(ai) the failure of reliance on any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Related Document (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or on any other information delivered by such Originator pursuant hereto or thereto that shall have been true and correct as of the date incorrect when made or deemed mademade or delivered;
(bii) the failure by such Originator to comply with any term, provision or covenant contained in this Agreement, any other Related Document or any agreement executed in connection herewith or therewith (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality), any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Transferred Receivable or the related Contract to conform to therefor, or the nonconformity of any Transferred Receivable or the Contract therefor with any such applicable law, rule or regulation;
(ciii) the failure by such Originator to vest and maintain vested in Buyer, or to Transfer to Buyer, valid and properly perfected title to and sole record and beneficial ownership of the Company a First Priority Interest Receivables that constitute Transferred Receivables, together with all Collections in the Sold Receivables generated by such Originatorrespect thereof, free and clear of any Adverse Claim;
(d) any commingling of Collections with other funds;
(eiv) any dispute, claim, offset or defense of any Obligor (other than its discharge in bankruptcy of an Obligorbankruptcy) of an Obligor to the payment of any Sold Receivable generated by such Originator that is the subject of a Transfer hereunder (including, without limitation, including (x) a defense based on such Receivable or the related Contract therefor not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its termsterms (other than as a result of a discharge in bankruptcy), or any other claim resulting from the sale of goods the merchandise or services related giving rise to any such Sold Receivable or the furnishing of or failure to furnish such goods merchandise or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by any Originator or any Affiliate thereof acting as the Servicer or a Sub-Servicer) and (y) resulting from or in connection with any Dilution Factors);
(v) any products liability claim or other claim arising out of or in connection with merchandise, insurance or services that is the subject of any Contract;
(vi) the commingling of Collections with respect to Transferred Receivables by any Originator at any time with its other funds or the funds of any other Person;
(vii) any failure by such Originator to cause the filing of, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or any other applicable laws with respect to any Transferred Receivable that is the subject of a Transfer hereunder to the extent that such filing is necessary to maintain the perfection and priority of Buyer in such Receivable, whether at the time of any such Transfer or at any subsequent time;
(viii) any investigation, Litigation or proceeding related to this Agreement or the use of the Sale Price obtained in connection with any Sale or the ownership of Transferred Receivables or Collections with respect thereto or in respect of any Transferred Receivable or Contract therefor;
(ix) any claim brought by any Person other than a Buyer Indemnified Person arising from any activity by such Originator or any of its Affiliates in servicing, administering or by collecting any agent or independent contractor retained by such Originator or its Affiliates)Transferred Receivables;
(fx) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is (w) a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents Lockbox Bank to comply with the notice requirements terms of FACA the applicable Lockbox Agreement, (x) the Collection Account Bank to comply with the terms of the Collection Account Agreement, (y) the Concentration Account Bank to comply with the terms of the Concentration Account Agreement or (z) the Borrower Account Bank to comply with the terms of the Borrower Account Agreement; and
(xi) any withholding, deduction or Charge imposed upon any payments with respect to any Transferred Receivable, any Borrower Assigned Agreement or any analogous State or local Lawsother Borrower Collateral.
Appears in 1 contract
Samples: Receivables Sale and Servicing Agreement (Synnex Corp)
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawLaw, each Originatorthe Originators, severally jointly and for itself aloneseverally, hereby agrees agree to indemnify and hold harmless the Company and Buyer, each of its Affiliatesofficers, directors, employees, agents, employeesemployees and respective assigns, officers, the Administrative Agent and directors each Purchaser (each of the foregoing Persons being individually called a “Purchase Sale and Sale Contribution Indemnified Party”), forthwith on demand, from and against any and all damages, claims, damageslosses, expensesjudgments, costs, losses and liabilities, penalties and related costs and expenses (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase Sale and Sale Relevant Contribution Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation or warranty made or deemed made by such any Originator (or any of its officersemployee, employees officer or agentsagent thereof) under or in connection with this Agreement or any of the other Transaction Document to Documents, or any information or report delivered by or on behalf of any Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure by such any Originator to transfer good and marketable title in and to any Pool Receivable or Related Right to the Buyer, free and clear of any Adverse Claims, and that is freely assignable, pursuant to this Agreement;
(c) the failure by any Originator to comply with the terms of any applicable law, rule Transaction Document or regulation with any Law with respect to any Sold Pool Receivable generated by such Originator or the related Contract Contract; or the failure of any Sold Pool Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such OriginatorLaw;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables (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);
(g) any failure of any Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(h) any products liability, environmental or other claim arising out of or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Receivable;
(i) the misdirection of Collections or the commingling of Collections of Pool Receivables at any time with other funds;
(ej) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(k) 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;
(l) any claim brought by any Person other than a Sale and Contribution Indemnified Party arising from any activity by any Originator or any Affiliate thereof in servicing, administering or collecting any Pool Receivable;
(m) the failure by any Originator to pay when due any Taxes, including sales, excise or personal property Taxes;
(n) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, 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 Sold Pool Receivable or the furnishing of or failure to furnish any such goods or services or relating other similar claim or defense not arising from the financial inability of any Obligor to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)pay undisputed indebtedness;
(fo) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the or in connection with goods or services which that are the subject of any Sold Receivable generated by such Originator or the related ContractReceivable;
(hp) any Tax or governmental fee or charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including Attorney Costs in defending against the use same, which are required to be paid by reason of the purchase or ownership of the Receivables or any Purchase Price paid to such OriginatorRelated Rights;
(iq) any liability under Section 4.03 of the Receivables Purchase Agreement; or
(r) the failure of such Originator any Receivable sold, transferred, contributed or assigned hereunder as an Eligible Receivable to pay when due any Taxesactually constitute an Eligible Receivable on the date of sale, energy surcharges transfer, contribution or other governmental charges payable by it assignment; provided that, notwithstanding the foregoing or anything else to the contrary in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, such indemnity shall not be available to any Sale and Contribution Indemnified Party to the extent that such losses, claims, judgments, damages, liabilities, penalties or related costs or expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of a Sale and Contribution Indemnified Party or (y) to the extent the same includes losses in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other Transaction Documents or the ownership financial inability to pay, of the Sold Receivables generated related Obligor. If for any reason the foregoing indemnification is unavailable to any Sale and Contribution Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Originator;
(k) Sale and Contribution 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 Originators and their Affiliates, on the one hand, and such Sale and Contribution Indemnified Party, on the other hand, in the matters contemplated by this Agreement as well as the relative fault of the Originators and their Affiliates and such Sale and Contribution Indemnified Party with respect to such loss, claim, damage or liability and any action taken other relevant equitable considerations; provided that, notwithstanding the foregoing or anything else to the contrary in this Agreement, the Originators shall have no contribution obligation to the extent such loss, claim, damage or liability are in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. The reimbursement, indemnity and contribution obligations of the Originators under this Section 9.1 shall be in addition to any liability which the Originators may otherwise have, shall extend upon the same terms and conditions to the Sale and Contribution Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of such Originator (and the Sale and Contribution Indemnified Parties. Any indemnification or any contribution under this Section 9.1 shall survive the termination of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsthis Agreement.
Appears in 1 contract
Samples: Sale and Contribution Agreement (Centuri Holdings, Inc.)
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawApplicable Law, each Originator, severally jointly and for itself aloneseverally, hereby agrees to indemnify and hold harmless the Company and Buyer, each of its Affiliatesofficers, directors, employees, agents, employeesemployees and respective assigns, officers, the Administrative Agent and directors each Lender (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, expenses, costsdamages, losses and liabilities, liabilities (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:
(a) the failure of any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to have been true and correct as or the use of the date proceeds from the Receivables generated by any Originator and Related Security or the security interest in respect thereof and without limiting or being limited by the foregoing, any of the following:
(a) the breach of any representation, warranty or statement made or deemed mademade by such Originator (or any employee, officer or agent of such Originator) under or in connection with this Agreement or any of the other Transaction Documents, or any information or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been untrue or incorrect when made or deemed made or delivered;
(b) the failure by such Originator to comply with any applicable law, rule or regulation Applicable Law with respect to any Sold Pool Receivable generated by such Originator or the related Contract Contract; or the failure of any Sold Pool Receivable or the related Contract to conform to any such applicable law, rule or regulationApplicable Law;
(c) the failure lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) originated by such Originator to vest against all Persons (including any bankruptcy trustee or similar Person), in the Company a First Priority Interest in the Sold Receivables generated by such Originatoreither case, free and clear of any Adverse Claim;
(d) the failure to have filed, or any commingling delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of Collections any applicable jurisdiction or other Applicable Laws with other fundsrespect to any Pool Receivable or the Related Rights at any time;
(e) the transfer by such Originator of any interest in any Pool Receivable or Related Right other than the transfer of any Pool Receivable and Related Security to the Buyer pursuant to this Agreement and the grant of a security interest to the Buyer pursuant to this Agreement;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from or relating to collection activities with respect to such Pool Receivable;
(g) any failure of such Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(h) the misdirection of Collections or the commingling of Collections of Pool Receivables at any time with other funds;
(i) 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;
(j) any failure of any Originator to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(k) any offset, setoff, adjustment or other non-cash reduction of any Pool Receivable (including Deemed Collections) not arising from the bankruptcy or insolvency, lack of creditworthiness or other financial default or inability to pay of the related Obligor;
(l) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim) arising out of or in connection with any Pool Receivable or other merchandise, goods or services that are the subject of or related to any Pool Receivable;
(m) any claim brought by any Person other than a Purchase and Sale Indemnified Party arising from any activity by such Originator or any Affiliate of such Originator in servicing, administering or collecting any Pool Receivable;
(n) the failure by such Originator to pay when due any Taxes, including, without limitation, sales, excise or personal property taxes;
(o) any dispute, claim, offset or defense (other than discharge in bankruptcy) of an Obligor to the payment of any Pool Receivable (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to any such Sold Pool Receivable or the furnishing of or failure to furnish any such goods or services or relating other similar claim or defense not arising from the bankruptcy or insolvency, lack of creditworthiness or other financial default or inability to collection activities with respect to such Sold Receivable or pay of the related Obligor any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)undisputed indebtedness;
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(kp) any action taken by the Administrative Agent as attorney-in-fact for such Originator (pursuant to this Agreement or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originatorother Transaction Document;
(lq) the failure or delay by such Originator in providing to provide any Obligor with an invoice or other evidence of indebtednessindebtedness related to a Pool Receivable; or
(mr) any tax or governmental fee or charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including without limitation Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or ownership of the Receivables generated by such Originator or any Related Rights connected with any such Receivables; provided that such indemnity shall not be available to any Purchase and Sale Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (i) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted solely from the gross negligence or willful misconduct of a Purchase and Sale Indemnified Party, (ii) constitute recourse with respect to a Pool Receivable by reason of the bankruptcy or insolvency, lack of creditworthiness or other financial default or inability to pay of the related Obligor or (iii) are arising from a claim by one Purchase and Sale Indemnified Party against another Purchase and Sale Indemnified Party (other than actions against the Administrative Agent in its capacity as Administrative Agent or as a result of the actions or inaction of such Originator). If for any reason (other than the gross negligence or willful misconduct of any Purchase and Sale Indemnified Party) the failure 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 each of the sale Originators, jointly and pledge severally, 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 such Originator under this Section 9.1 shall be in addition to any liability which such 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 benefit of any Pool Receivable successors, assigns, heirs and personal representatives of such Originator and the Purchase and Sale Indemnified Parties. Any indemnification or contribution under this Section shall survive the Transaction Documents to comply with the notice requirements termination of FACA or any analogous State or local Lawsthis Agreement.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawApplicable Law, each Originator, severally and for itself alone, Originator hereby agrees to indemnify and hold harmless the Company and Buyer, each of its Affiliatesofficers, directors, employees, agents, employeesemployees and respective assigns, officers, the Administrative Agent and directors each Lender (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, from and against any and all damages, claims, damageslosses, expensesjudgments, costs, losses and liabilities, penalties and related costs and expenses (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) arising out awarded against or incurred by any of or resulting from them to the failure of such Originator to perform its obligations under this Agreement, or arising out of the claims asserted against a Purchase and Sale Indemnified Party extent relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromevent identified below:
(a) the failure of any representation or warranty made or deemed made by such Originator (or any officer of its officers, employees or agentssuch Originator) under or in connection with this Agreement or Agreement, any other Transaction Document to which such Originator is a party or any other information or report delivered by any such Originator pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect when made or deemed made;
(b) the failure by such Originator to comply with any applicable law, rule or regulation Applicable Law with respect to any Sold Receivable generated by such Originator or Contract related thereto, or the related Contract or the failure nonconformity of any Sold Receivable or the related Contract to conform to included therein with any such applicable law, rule or regulationApplicable Law;
(c) the failure by of such Originator to vest timely and fully comply with the Credit and Collection Policy in the Company a First Priority Interest in the Sold Receivables generated by such Originatorregard to any Receivable or to perform any of its obligations, express or implied, with respect to any Contract;
(d) any failure of such Originator to perform its duties, covenants or other obligations under this Agreement or any other Transaction Document to which such Originator is a party;
(e) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) originated or acquired by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Lien;
(f) the failure to have filed, or any delay in filing, financing statements (including, as extracted collateral filings), financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable or the Related Rights;
(g) any suit or claim related to the Pool Receivables originated or acquired by such Originator (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable originated by such Originator);
(h) any failure of such Originator to enforce any of its rights and remedies under the Sub-Originator Sale Agreement;
(i) the commingling of Collections of Pool Receivables at any time with other funds;
(ej) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(k) 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, but excluding in each case, litigation and proceedings related to the enforcement or collection of Receivables;
(l) any claim brought by any Person other than a Purchase and Sale Indemnified Party arising from any activity by such Originator or any Affiliate of such Originator in servicing, administering or collecting any Pool Receivable;
(m) the failure by such Originator to pay when due any taxes, including, without limitation, sales, excise or personal property taxes;
(n) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Pool Receivable, the sale of goods or the rendering of services related to such Pool Receivable or the furnishing or failure to furnish any Contract related thereto (if such collection activities were performed by such Originator goods or services or other similar claim or defense not arising from the financial inability of any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)Obligor to pay undisputed indebtedness;
(fo) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the or in connection with goods or services which that are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(lp) the failure or delay by such Originator in providing to pay when due any Obligor sales, excise or personal property taxes or charges (including interest and penalties thereon or with an invoice respect thereto), imposed on the purchase of the Pool Receivables or other evidence of indebtednessany Related Rights generated by such Originator;
(q) [reserved];
(r) [reserved]; or
(ms) any action taken by the failure Administrative Agent as attorney-in-fact for such Originator pursuant to this Agreement or any other Transaction Document; provided that such indemnity shall not be available to any Purchase and Sale Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted solely from the gross negligence or willful misconduct of a Purchase and Sale Indemnified Party, (y) constitute recourse with respect to a Pool Receivable by reason of the sale and pledge bankruptcy, insolvency, lack of creditworthiness or other financial or credit condition or financial default, of the related Obligor or (z) Taxes (other than Taxes that represent losses, claims, damages, etc., arising from any Pool Receivable under non-Tax claim). Notwithstanding anything to the Transaction Documents contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in this Article IX, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be deemed to comply with the notice requirements of FACA or any analogous State or local Lawsbe not so qualified.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which that the Company may have hereunder or under applicable lawApplicable Law, each Originator, severally and for itself alone, Originator hereby agrees to indemnify and hold harmless the Company and Company, each of its Affiliatesofficers, directors, employees, agents, employeesemployees and respective assigns, officersthe Administrative Agent, each Lender and directors each Group Agent (each of the foregoing Persons being individually called a “Purchase and Sale Contribution Indemnified Party”), forthwith on demand, from and against any and all damages, claims, damageslosses, expensesjudgments, costs, losses and liabilities, penalties and related reasonable costs and expenses (including Attorney Costs Costs) (all of the foregoing being collectively called called, “Purchase and Sale Relevant Contribution Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation or warranty made or deemed made by such Originator (or any employee, officer or agent of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any of the other Transaction Document to Documents, or any information in writing or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure transfer by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold interest in any Receivable or Related Right other than the related Contract transfer of any Receivable and Related Rights to conform the Company pursuant to any such applicable law, rule or regulationthis Agreement and the grant of a security interest to the Company pursuant to this Agreement;
(c) the failure by such Originator to vest in comply with the Company a First Priority Interest in terms of any Transaction Document or with any Applicable Law with respect to any Receivable or the Sold Receivables generated by related Contract, or the failure of any Receivable or the related Contract to conform to any such OriginatorApplicable Law;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Receivables (and all Related Rights) originated by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Lien;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Receivable or the Related Rights;
(f) any suit or claim related to the Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the property, products, goods or services that are the subject of any Receivable originated by such Originator);
(g) any failure of such Originator to perform any its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Receivable;
(h) the commingling of Collections of Receivables at any time with other funds;
(ei) the failure or delay to provide any Obligor with an invoice or other evidence of amounts owing;
(j) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or in respect of any Receivable or any Related Rights;
(k) any claim brought by any Person other than a Contribution Indemnified Party arising from any activity by such Originator or any Affiliate of such Originator in servicing, administering or collecting any Receivable;
(l) the failure by such Originator to pay when due any taxes, including, without limitation, sales, excise or personal property taxes;
(m) any dispute, claim, offset offset, setoff or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to any such Sold Receivable or the furnishing of or failure to furnish any such goods or services or relating other similar claim or defense not arising from the financial inability of any Obligor to collection activities pay undisputed indebtedness;
(n) any tax or governmental fee or charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including without limitation Attorney Costs in defending against the same, which are required to such Sold Receivable be paid by reason of the acceptance or any Contract related thereto (if such collection activities were performed ownership of the Receivables generated by such Originator or any of its Affiliates or by Related Rights connected with any agent or independent contractor retained by such Originator or its Affiliates)Receivables;
(fo) any failure amounts of such Originator to perform its duties and obligations in accordance with Indemnified Taxes and/or other amounts paid or payable by the provisions Company under Section 5.03 of this the Receivables Financing Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractsin each case without duplication;
(gp) any products liabilitytaxes imposed on the Company’s income, environmental capital, or other claim by an Obligor revenue, or other third party arising out any liability of the goods or services which are the subject Company attributable to Taxes of any Sold Receivable generated Person under Treasury Regulation section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by such Originator contract, operation of law or the related Contract;otherwise; or
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(kq) any action taken by the Administrative Agent as attorney-in-fact for such Originator (pursuant to this Agreement or any other Transaction Document; provided, that such indemnity shall not be available to any Contribution Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a final judgment of a court of competent jurisdiction to have resulted solely from the gross negligence or willful misconduct of a Contribution Indemnified Party or (y) constitute recourse with respect to a Receivable by reason of the bankruptcy or insolvency, lack of credit worthiness or other financial inability to pay of the related Obligor. Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in this Article IX, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be deemed to be not so qualified. If for any reason the foregoing indemnification is unavailable (other than pursuant to the immediately preceding proviso) to any Contribution Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Contribution 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 such Originator and its Affiliates) , on the one hand, and such Contribution Indemnified Party, on the other hand, in the enforcement matters contemplated by this Agreement as well as the relative fault of such Originator and its Affiliates and such Contribution Indemnified Party with respect to such loss, claim, damage or collection liability and any other relevant equitable considerations. The reimbursement, indemnity and contribution obligations of such Originator under this Section shall be in addition to (but without duplication of) any liability which such Originator may otherwise have, shall extend upon the same terms and conditions to Contribution Indemnified Party, and shall be binding upon and inure to the benefit of any Sold Receivable generated by such Originator;
(l) the failure or delay by successors, assigns, heirs and personal representatives of such Originator in providing any Obligor with an invoice and the Contribution Indemnified Parties. Any indemnification or other evidence contribution under this Section shall survive the termination of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsthis Agreement.
Appears in 1 contract
Samples: Transfer and Contribution Agreement (First Data Corp)
Indemnities by the Originators. Without limiting any other rights which the Company Buyer may have hereunder or under applicable law, each Originator, severally and for itself alone, jointly and severally with each other Originator, hereby agrees to indemnify and hold harmless the Company Buyer and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities, penalties and related costs and expenses, costs, losses and liabilities, including reasonable Attorney Costs (all of the foregoing being collectively called “Purchase and Sale Relevant Amounts”) arising out of or resulting from the failure of such Originator to perform its obligations under this Agreement, or arising out of the claims asserted against a "Purchase and Sale Indemnified Party relating to the acquisition Amounts") awarded against or incurred by any of the Sold Receivables by the Companythem arising out of, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation or warranty made or deemed made by such Originator (or any employee, officer or agent of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any other Transaction Document to have been true and correct as of the date made or deemed madeDocument;
(b) the failure transfer by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold interest in any Pool Receivable or other than the related Contract transfer of any Pool Receivable and Related Security to conform the Buyer pursuant to any such applicable law, rule or regulationthis Agreement and the grant of a security interest to the Buyer pursuant to this Agreement;
(c) the failure by of such Originator to vest in comply with the Company a First Priority Interest in terms of any Transaction Document or any applicable law (including with respect to any Receivable or Related Security), or the Sold Receivables generated by nonconformity of any Pool Receivable or Related Security with any such Originatorlaw;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any commingling bankruptcy trustee or similar Person), in either case, free and clear of Collections with other fundsany Adverse Claim;
(e) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the chemicals or other property, products or services that are the subject of any Pool Receivable originated by such Originator); and
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an the Obligor to the payment of any Sold Receivable generated by such Originator in the Receivables Pool (including, without limitation, including a defense based on such Receivable Receivable's or the related Contract 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 goods the petrochemicals or other property, products or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods chemicals or services other property, products or relating services; provided that such indemnity shall not be available to collection activities any Purchase and Sale Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the bad faith, gross negligence or willful misconduct of a Purchase and Sale Indemnified Party, (y) result from a claim brought by such Originator against the Purchase and Sale Indemnified Party for breach of such party's obligations under this Agreement or under any other Transaction Document, if such Originator has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction or (z) constitute recourse with respect to a Pool Receivable by reason of the bankruptcy or insolvency, or the financial or credit condition or financial default, of the related Obligor. 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 Sold Receivable Purchase and Sale Indemnified Party harmless, then each of the Originators, severally and for itself, and Celanese International, jointly and severally with each Originator, shall contribute to the amount paid or any Contract related thereto (if such collection activities were performed payable by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator Purchase and Sale Indemnified Party to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or maximum extent permitted under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsapplicable law.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawApplicable Law, each OriginatorOriginator and CSC, severally jointly and for itself aloneseverally, hereby agrees to indemnify and hold harmless the Company and Buyer, each of its Affiliatesofficers, directors, employees, agents, employeesemployees and respective assigns, officersthe Administrative Agent, each Purchaser and directors each Group Agent (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, from and against any and all damages, claims, damageslosses, expensesjudgments, costs, losses and liabilities, penalties and related costs and expenses (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation or warranty made or deemed made by such Originator (or any employee, officer or agent of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any of the other Transaction Document to Documents, or any information or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure transfer by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold interest in any Pool Receivable or Related Right other than the related Contract transfer of any Pool Receivable and Related Security to conform the Buyer pursuant to any such applicable law, rule or regulationthis Agreement and the grant of a security interest to the Buyer pursuant to this Agreement;
(c) the failure by such Originator to vest in comply with the Company a First Priority Interest in terms of any Transaction Document or with any Applicable Law with respect to any Pool Receivable or the Sold Receivables generated by related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such OriginatorApplicable Law;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any commingling bankruptcy trustee or similar Person), in either case, free and clear of Collections with other fundsany Adverse Claim;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable originated by such Originator);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable in the Receivables Pool (including a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the property, products or services to such Receivable or the furnishing or failure to furnish such property, products or services;
(h) any failure of such 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) the commingling of Collections of Pool Receivables at any time with other funds, including any commingling in any Collection Account;
(j) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(k) 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;
(l) any claim brought by any Person other than a Purchase and Sale Indemnified Party arising from any activity by such Originator or any Affiliate of such Originator in servicing, administering or collecting any Pool Receivable;
(m) the failure by such Originator to pay when due any taxes, including, without limitation, sales, excise or personal property taxes;
(n) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to any such Sold Pool Receivable or the furnishing of or failure to furnish any such goods or services or relating other similar claim or defense not arising from the financial inability of any Obligor to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)pay undisputed indebtedness;
(fo) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the or in connection with goods or services which that are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(lp) any liability of the failure Buyer for (i) net income tax or delay by such Originator in providing (ii) any Obligor with an invoice withholding tax or other evidence obligation under Sections 1441, 1446 and 1461 of indebtednessthe United States Internal Revenue Code of 1986, as amended, where Buyer bears the economic cost of the liability and the withholding obligation does not relate to amounts payable under the Receivables Purchase Agreement;
(q) any liability under Section 5.03 of the Receivables Purchase Agreement; or
(mr) any action taken by the failure Administrative Agent as attorney-in-fact for such Originator pursuant to this Agreement or any other Transaction Document; provided that such indemnity shall not be available to any Purchase and Sale Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of a Purchase and Sale Indemnified Party, (y) result from a claim brought by any Originator against a Purchase and Sale Indemnified Party for breach of the sale Purchase and pledge Sale Indemnified Party’s obligations under any Transaction Document as determined by a court of competent jurisdiction in a final and nonappealable judgment or (z) constitute recourse with respect to a Pool Receivable by reason of the bankruptcy or insolvency, or the financial or credit condition or financial default, of the related Obligor. If for any reason the foregoing indemnification is unavailable to any Purchase and Sale Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of such 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 such 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 such Originator under this Section shall be in addition to any liability which such 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 benefit of any Pool Receivable successors, assigns, heirs and personal representatives of such Originator and the Purchase and Sale Indemnified Parties. Any indemnification or contribution under this Section shall survive the Transaction Documents to comply with the notice requirements termination of FACA or any analogous State or local Lawsthis Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Computer Sciences Corp)
Indemnities by the Originators. Without limiting any other rights which the Company Initial Purchaser and each of its permitted assigns, officers, directors, employees and agents (each of the foregoing Persons being individually called a "Sale Indemnified Party") may have hereunder or under applicable law, each Originator, severally jointly and for itself aloneseverally, hereby agrees to indemnify and hold harmless the Company Initial Purchaser and each of its Affiliates, agents, employees, officers, and directors (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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys' fees and liabilities, including Attorney Costs disbursements (all of the foregoing collectively being collectively called “Purchase and "Sale Relevant Indemnified Amounts”") arising out of or resulting from this Agreement (whether directly or indirectly) or the failure use of such Originator to perform its obligations under this Agreement, proceeds of purchases or arising out the ownership of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Companyany Pool Receivable or Related Rights, excluding, Purchase and Sale Relevant Amounts to the extenthowever, (a) such Purchase and Sale Relevant Indemnified Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted the extent resulting from the fraudgross negligence, gross negligence bad faith or willful misconduct on the part of the Initial Purchaser or such Purchase and Sale Indemnified Party, (b) due Sale Indemnified Amounts to the credit risk extent the same includes losses in respect of an Obligor Pool Receivables and for which reimbursement therefor that would constitute credit recourse to the Originators for the amount of any Originator Pool Receivable or Related Rights not paid by the related Obligor for uncollectible Receivables credit reasons, or (c) any net income taxes or franchise taxes imposed on the Initial Purchaser or such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to by the jurisdiction under the laws of which such Originator for Sale Indemnified Party is organized or any amounts otherwise specifically provided to be paid by such Originator hereunderpolitical subdivision thereof. Without limiting or being limited by the foregoing indemnificationforegoing, but subject to the limitations exclusions set forth in clauses (a), (b) and (c) of the previous immediately preceding sentence, each Originator, severally for itself alonejointly and severally, shall indemnify pay on demand to the Initial Purchaser and each Purchase and Sale Indemnified Party for Purchase any and all amounts necessary to indemnify the Initial Purchaser and such Sale Relevant Indemnified Party from and against any and all Sale Indemnified Amounts relating to or resulting fromfrom any of the following:
(ai) the transfer by any Originator of an interest in any Receivable or Related Rights to any Person other than the Initial Purchaser;
(ii) the failure of any information provided by any Originator, as Servicer or otherwise, to the Initial Purchaser, any Purchaser, the Administrator or the Servicer with respect to Pool Receivables or this Agreement to be true, correct and complete;
(iii) the failure of any representation or warranty or statement made or deemed made by such any Originator (or any of its officers), employees as Servicer or agents) otherwise, under or in connection with this Agreement or any other Transaction Document to have been true and correct as of the date made or deemed when made;
(biv) the failure by such Originator any Originator, as Servicer or otherwise, to comply with any applicable law, rule or regulation Applicable Law with respect to any Sold Pool Receivable generated by such Originator or the related Contract Related Rights; or the failure of any Sold Pool Receivable or the related Contract Related Rights to conform to any such applicable law, rule or regulationApplicable Law;
(cv) the failure by such Originator to vest and maintain vested in the Company Initial Purchaser a First Priority Interest valid and enforceable ownership interest in each Pool Receivable at any time existing and the Sold Receivables generated by Related Rights with respect thereto, free and clear of any Lien, other than a Lien arising solely as a result of an act of the Initial Purchaser, any Purchaser or the Administrator, whether existing as the time of purchase of such OriginatorPool Receivable or at any time thereafter;
(dvi) the failure of any commingling Originator to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of Collections any applicable jurisdiction or other applicable laws with other fundsrespect to any Pool Receivables and the Related Rights in respect thereof, whether at the time of any purchase or at any subsequent time;
(evii) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an the Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the goods or services related to any such Sold Pool Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Pool Receivable or any Contract related thereto (if such collection activities were performed by such any Originator or any of its Affiliates Affiliates, acting as Servicer or by any agent or independent contractor retained by such any Originator or any of its Affiliates);
(fviii) any failure breach by any Originator, as Servicer or otherwise, of such Originator any of its covenants or agreements under this Agreement or to perform its duties and or obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(gix) any products liability, environmental liability or other claim by an Obligor claim, investigation, litigation or other third party proceeding arising out of the goods or in connection with merchandise, insurance or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(hx) the use commingling of Collections of Pool Receivables at any Purchase Price paid to such Originatortime with other funds;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(jxi) any investigation, litigation or proceeding relating related to this Agreement, any Agreement or the use of the other Transaction Documents proceeds of purchases or the ownership of any Pool Receivable or Related Rights;
(xii) any tax or governmental fee or charge (but not including taxes upon or measured by net income or representing a franchise or unincorporated business tax on such Sale Indemnified Party), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the Sold 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 such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of Related Rights connected with any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtednessReceivables; or
(mxiii) the failure any requirement that all or a portion of the sale and pledge of distributions made to the Initial Purchaser pursuant to this Agreement shall be rescinded or otherwise must be returned to any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or Originator for any analogous State or local Lawsreason.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which the Company Initial Purchaser and each of its permitted assigns, officers, directors, employees and agents (each of the foregoing Persons being individually called a "Sale Indemnified Party") may have hereunder or under applicable law, each Originator, severally jointly and for itself aloneseverally, hereby agrees to indemnify and hold harmless the Company Initial Purchaser and each of its Affiliates, agents, employees, officers, and directors (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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys' fees and liabilities, including Attorney Costs disbursements (all of the foregoing collectively being collectively called “Purchase and "Sale Relevant Indemnified Amounts”") arising out of or resulting from this Agreement (whether directly or indirectly) or the failure use of such Originator to perform its obligations under this Agreement, proceeds of purchases or arising out the ownership of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Companyany Pool Receivable or Related Rights, excluding, Purchase and Sale Relevant Amounts to the extenthowever, (a) such Purchase and Sale Relevant Indemnified Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted the extent resulting from the fraud, gross negligence or willful misconduct on the part of the Initial Purchaser or such Purchase and Sale Indemnified Party, (b) due Sale Indemnified Amounts to the credit risk extent the same includes losses in respect of an Obligor Pool Receivables and for which reimbursement therefor that would constitute credit recourse to the Originators for the amount of any Originator Pool Receivable or Related Rights not paid by the related Obligor for uncollectible Receivables credit reasons, or (c) any net income taxes or franchise taxes imposed on the Initial Purchaser or such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to by the jurisdiction under the laws of which such Originator for Sale Indemnified Party is organized or any amounts otherwise specifically provided to be paid by such Originator hereunderpolitical subdivision thereof. Without limiting or being limited by the foregoing indemnificationforegoing, but subject to the limitations exclusions set forth in clauses (a), (b) and (c) of the previous immediately preceding sentence, each Originator, severally for itself alonejointly and severally, shall indemnify pay on demand to the Initial Purchaser and each Purchase and Sale Indemnified Party for Purchase any and all amounts necessary to indemnify the Initial Purchaser and such Sale Relevant Indemnified Party from and against any and all Sale Indemnified Amounts relating to or resulting fromfrom any of the following:
(ai) the transfer by any Originator of an interest in any Receivable or Related Rights to any Person other than the Initial Purchaser;
(ii) the failure of any information provided by any Originator, as Servicer or otherwise, to the Initial Purchaser, the Purchaser, the Administrator or the Servicer with respect to Pool Receivables or this Agreement to be true, correct and complete;
(iii) the failure of any representation or warranty or statement made or deemed made by such any Originator (or any of its officers), employees as Servicer or agents) otherwise, under or in connection with this Agreement or any other Transaction Document to have been true and correct as of the date made or deemed when made;
(biv) the failure by such Originator any Originator, as Servicer or otherwise, to comply with any applicable lawApplicable Law, rule or regulation with respect to any Sold Pool Receivable generated by such Originator or the related Contract Related Rights; or the failure of any Sold Pool Receivable or the related Contract Related Rights to conform to any such applicable law, rule or regulationApplicable Law;
(cv) the failure by such Originator to vest and maintain vested in the Company Initial Purchaser a First Priority Interest valid and enforceable ownership interest in each Pool Receivable at any time existing and the Sold Receivables generated by Related Rights with respect thereto, free and clear of any Lien, other than a Lien arising solely as a result of an act of the Initial Purchaser, the Purchaser, the Liquidity Agent or the Administrator, whether existing as the time of purchase of such OriginatorPool Receivable or at any time thereafter;
(dvi) the failure of any commingling Originator to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of Collections any applicable jurisdiction or other applicable laws with other fundsrespect to any Pool Receivables and the Related Rights in respect thereof, whether at the time of any purchase or at any subsequent time;
(evii) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an the Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the goods or services related to any such Sold Pool Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Pool Receivable or any Contract related thereto (if such collection activities were performed by such any Originator or any of its Affiliates Affiliates, acting as Servicer or by any agent or independent contractor retained by such any Originator or any of its Affiliates);
(fviii) any failure of such Originator any Originator, as Servicer or otherwise, to perform its duties and or obligations in accordance with the provisions of this Agreement, any Contract hereof or any other Transaction Document under the Receivables Purchase Agreement or to which it is a party perform its duties or obligations under the Contracts;
(gix) any products liability, environmental liability or other claim by an Obligor claim, investigation, litigation or other third party proceeding arising out of the goods or in connection with merchandise, insurance or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(hx) the use commingling of Collections of Pool Receivables at any Purchase Price paid to such Originatortime with other funds;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(jxi) any investigation, litigation or proceeding relating related to this Agreement, any Agreement or the use of the other Transaction Documents proceeds of purchases or the ownership of the Sold Receivables generated by such Originatorany Pool Receivable or Related Rights;
(kxii) any action taken tax or governmental fee or charge (but not including taxes upon or measured by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; net income or
(mxiii) the failure any requirement that all or a portion of the sale and pledge of distributions made to the Initial Purchaser pursuant to this Agreement shall be rescinded or otherwise must be returned to any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or Originator for any analogous State or local Lawsreason.
Appears in 1 contract
Samples: Purchase and Sale Agreement (D & K Healthcare Resources Inc)
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, alone hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys' fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “"Purchase and Sale Relevant Indemnified Amounts”") awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Companyproceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Relevant Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (bii) due to any indemnification which has the credit risk effect of an Obligor and recourse for which reimbursement would constitute recourse non-payment of the Receivables to any Originator for uncollectible Receivables or indemnitor (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts except as otherwise specifically provided to be paid under this Section 9.1), and (iii) any tax based upon or measured by such Originator hereundernet income property, or gross receipts. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentenceforegoing, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:: Purchase and Sale Agreement
(a) the failure transfer by such 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 such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, or any information or report delivered by Originator pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect in any material respect when made or deemed made;
(b) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originator;
(d) any commingling of Collections with other funds;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligor) of an Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Laws.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which the Company Buyer may have hereunder or under applicable law, each Originatorthe Originators hereby, severally jointly and for itself aloneseverally, hereby agrees agree to indemnify the Buyer and hold harmless the Company its assigns and each of its Affiliatestransferees (each, agents, employees, officers, and directors (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, costs, expenses, costs, losses and liabilities, liabilities (including Attorney Costs reasonable attorneys’ fees) (all of the foregoing being collectively called referred to as “Purchase and Sale Relevant Indemnified Amounts”) arising out of or resulting from this Agreement or the failure ownership of such Originator to perform its obligations under this Agreement, Transferred Receivables or arising out in respect of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Companyany Transferred Receivable or any Contract, excluding, Purchase and Sale Relevant Amounts to the extenthowever, (a) such Purchase and Sale Relevant Indemnified Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted the extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (b) recourse for Receivables that are uncollectible solely due to the credit risk of an Obligor and for which reimbursement would constitute recourse relevant Obligor’s unwillingness or financial inability to any Originator for uncollectible Receivables pay or (c) any income taxes or franchise taxes imposed on such Purchase and Sale Relevant Amounts are Indemnified Party by the jurisdiction under the laws of which such Indemnified Party is organized or any political subdivision thereof, arising out of or as a result of this Agreement or the ownership of Transferred Receivables or in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from Transferred Receivable or any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunderContract. Without limiting or being limited by the foregoing indemnification, (but subject to the limitations set forth in clauses (aaforementioned exclusions), (b) each Originators, jointly and (c) of the previous sentence, each Originator, severally for itself aloneseverally, shall indemnify pay on demand to each Purchase and Sale Indemnified Party for Purchase any and Sale Relevant 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 failure of any representation or warranty or statement made or deemed made by such an Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any Agreement, and the other Transaction Document to Documents that shall have been true and correct as of the date made or deemed incorrect in any material respect when made;
(b) the failure by such an Originator to comply with any applicable law, rule or regulation with respect to any Sold Transferred Receivable generated by such Originator or the related Contract Contract; or the failure of any Sold Transferred Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company Buyer absolute ownership of the Transferred Receivables that are, or that purport to be, the subject of a First Priority Interest purchase or contribution under this Agreement and the Related Security and Collections in the Sold Receivables generated by such Originatorrespect thereof free and clear of any Adverse Claim;
(d) the failure of an Originator to have filed, or any commingling 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 that purport to be, the subject of a purchase or contribution under this Agreement and the Related Security and Collections with other fundsin respect thereof, whether at the time of any purchase or contribution or at any subsequent time;
(e) 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 bankruptcy of an Obligorthe Obligor or any other credit related losses) of an the Obligor to the payment of any Sold Transferred Receivable generated by such Originator that is, or that purports to be, the subject of a purchase or contribution under this Agreement (including, without limitation, a defense based on such Transferred Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Transferred Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Transferred Receivable or any Contract related thereto (if to the extent such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliatesacting as Collection Agent);
(f) any failure of such Originator to perform its duties and or obligations in accordance with the provisions of this Agreement, hereof or to perform its duties or obligations under any Contract or any other Transaction Document related to which it is a party or under the ContractsTransferred Receivable;
(g) any products liability, environmental liability or other claim by an Obligor (including any claim for unpaid sales, excise or other third party taxes) arising out of the or in connection with goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use commingling of Collections of Transferred Receivables by an Originator or a designee of an Originator, as Collection Agent or otherwise, at any Purchase Price paid time with other funds of such Originator or an Affiliate of such Originator or the failure of Collections to such Originatorbe deposited into the Controlled Account;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating related to this Agreement, any of the other Transaction Documents Agreement or the ownership of Transferred Receivables, the Sold Receivables generated by such OriginatorRelated 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 action taken by such failure of an Originator (or any of to comply with its Affiliates) covenants contained in the enforcement or collection of any Sold Receivable generated by such Originator;Section 5.01; or
(l) the failure any claim brought by any Person other than an Indemnified Party arising from any activity by an Originator or delay by such any Affiliate of an Originator in providing servicing, administering or collecting any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local LawsTransferred Receivable.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (United Rentals North America Inc)
Indemnities by the Originators. Without limiting any other rights which that the Company Purchaser may have hereunder or under applicable law, each Originator, severally and for itself alone, Originator hereby agrees to indemnify the Purchaser (and hold harmless the Company its assignees) and each of its Affiliates, agents, employees, officers, and directors (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 claims, damages, expenses, costs, losses and liabilities, liabilities (including Attorney Costs reasonable attorneys' fees) (all of the foregoing being collectively called “Purchase and Sale Relevant referred to as "Indemnified Amounts”") arising out of or resulting from the failure this Agreement or in respect of such Originator to perform its obligations under this Agreementany Receivable, any related Contract or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Companyany other Purchased Asset, excluding, Purchase and Sale Relevant however, Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of the Purchaser or such Purchase and Sale Indemnified Party, (b) due to as the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereundercase may be. Without limiting or being limited by the foregoing indemnificationforegoing, but subject each Originator shall pay on demand to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Purchaser or any Indemnified Party for Purchase any and Sale Relevant all amounts necessary to indemnify such Person from and against any and all Indemnified Amounts relating to or resulting from:
(a) the failure of reliance on any representation or warranty or statement made or deemed made by such any Originator (or any of its their respective officers, employees or agents) under or in connection with this Agreement or in any other Transaction Document to certificate, report or document delivered pursuant hereto that, in any such case, shall have been true and correct as of the date false or incorrect when made or deemed made;
(b) the failure by such any Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract Contract, or the failure nonconformity of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;
(c) the failure by such Originator to vest have filed or pay any recording or other similar tax with respect to, or any delay in filing or payment of any recording or other similar tax with respect to, financing statements or other similar instruments or documents under the Company a First Priority Interest Uniform Commercial Code of any applicable jurisdiction or other applicable laws with respect to the Purchaser's or any assignee's interest in the Sold Receivables generated by such Originatorany Purchased Asset;
(d) any commingling of Collections with other funds;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods the merchandise or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods merchandise or services services;
(e) any failure of any Originator to perform its duties or relating to collection activities with respect to such Sold Receivable obligations under this Agreement or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)the applicable Contract;
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract products liability or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other warranty claim by an Obligor or other third party arising out of the goods or in connection with merchandise, insurance or services which that are the subject of any Sold Receivable generated by such Originator or the related ContractReceivable;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Laws.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Covenant Transport Inc)
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, alone hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, respective officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys’ fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Companyproceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Relevant Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (bii) due to any indemnification which has the credit risk effect of an Obligor and recourse for which reimbursement would constitute recourse non-payment of the Receivables to any Originator for uncollectible Receivables or indemnitor (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts except as otherwise specifically provided to be paid under this Section 9.1) and (iii) any tax based upon or measured by such Originator hereundernet income, property, or gross receipts. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentenceforegoing, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure transfer by such Originator of an interest in any Receivable to any Person other than the Company; 747538185 22708133 22 Purchase and Sale Agreement
(b) the breach of any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, or any information or report delivered by Originator pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect in any material respect when made or deemed made;
(bc) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract, or the nonconformity of any Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;
(cd) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by such Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Administrator whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) the failure to vest file, or any delay in filing, financing statements or other similar instruments or documents under the Company a First Priority Interest in the Sold UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by such Originator, whether at the time of any purchase or contribution or at any subsequent time;
(d) any commingling of Collections with other funds;
(ef) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an the Obligor to the payment of any Sold Receivable or purported Receivable generated by such Originator (including, without limitation, a defense based on such Receivable Receivable’s or the related Contract 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 goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)services;
(fg) any product liability claim arising out of or in connection with services that are the subject of any Receivable generated by such Originator;
(h) any failure of such Originator to perform its duties and or obligations in accordance with the provisions of this Agreement, any Contract hereof or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originatorparty;
(i) any liability under Section 5.03 of the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Financing Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, commingling of Collections at any of the time with other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;funds; and
(k) any action taken Documentary Taxes. 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 each of the Originators, severally and for itself, shall contribute to the amount paid or payable by such Originator (or any of its Affiliates) in Purchase and Sale Indemnified Party to the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale maximum extent permitted under applicable law. 747538185 22708133 23 Purchase and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Laws.Sale Agreement
Appears in 1 contract
Samples: Purchase and Sale Agreement (Worthington Industries Inc)
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawApplicable Law, each Originator, severally and for itself alone, hereby agrees to indemnify and hold harmless the Company and Buyer, each of its Affiliatesofficers, directors, employees, agents, employeesemployees and respective assigns, officers, the Administrative Agent and directors each Lender (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, from and against any and all damages, claims, damageslosses, expensesjudgments, costs, losses and liabilities, penalties and related reasonable costs and expenses (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation or warranty made or deemed made by such Originator (or any employee, officer or agent of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any of the other Transaction Document to Documents, or any information or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure transfer by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold interest in any Pool Receivable or Related Right other than the related Contract transfer of any Pool Receivable and Related Security to conform the Buyer pursuant to any such applicable law, rule or regulationthis Agreement and the grant of a security interest to the Buyer pursuant to this Agreement;
(c) the failure by such Originator to vest in comply with the Company a First Priority Interest in terms of any Transaction Document or with any Applicable Law with respect to any Pool Receivable or the Sold Receivables generated by related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such OriginatorApplicable Law;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable originated by such Originator);
(g) any failure of such 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;
(h) the commingling of Collections of Pool Receivables by such Originator at any time with other funds;
(ei) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(j) any investigation, litigation or proceeding (actual or threatened) with respect to such Originator related to this Agreement or any other Transaction Document or in respect of any Pool Receivable or any Related Rights;
(k) any claim brought by any Person other than a Purchase and Sale Indemnified Party arising from any activity by such Originator or any Affiliate of such Originator in servicing, administering or collecting any Pool Receivable;
(l) the failure by such Originator to pay when due any taxes, including, without limitation, sales, excise or personal property taxes;
(m) any dispute, claim, offset offset, setoff or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to any such Sold Pool Receivable or the furnishing of or failure to furnish any such goods or services or relating other similar claim or defense not arising from the financial inability of any Obligor to collection activities pay undisputed indebtedness;
(n) any tax or governmental fee or charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including without limitation Attorney Costs in defending against the same, which are required to such Sold Receivable be paid by reason of the purchase or any Contract related thereto (if such collection activities were performed ownership of the Receivables generated by such Originator or any of its Affiliates or by Related Rights connected with any agent or independent contractor retained by such Originator or its Affiliates)Receivables;
(fo) any failure amounts of such Originator to perform its duties and obligations in accordance with Indemnified Taxes and/or other amounts paid or payable by the provisions Buyer under Section 4.03 of this the Receivables Financing Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractsin each case without duplication;
(gp) any products liabilitytaxes imposed on the Buyer’s income, environmental capital, or other claim by an Obligor revenue, or other third party arising out any liability of the goods or services which are the subject Buyer attributable to Taxes of any Sold Receivable generated Person under Treasury Regulation section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by such Originator contract, operation of law or the related Contract;otherwise; or
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(kq) any action taken by the Administrative Agent as attorney-in-fact for such Originator (pursuant to this Agreement or any other Transaction Document; provided that such indemnity shall not be available to any Purchase and Sale Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted solely from the gross negligence or willful misconduct of a Purchase and Sale Indemnified Party or (y) constitute recourse with respect to a Pool Receivable by reason of the bankruptcy or insolvency, or the financial or credit condition or financial default, of the related Obligor. Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in this Article IX, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be deemed to be not so qualified. If for any reason the foregoing indemnification is (other than pursuant to the immediately preceding proviso) unavailable to any Purchase and Sale Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of such Originator and its Affiliates) , on the one hand, and such Purchase and Sale Indemnified Party, on the other hand, in the enforcement matters contemplated by this Agreement as well as the relative fault of such Originator and its Affiliates and such Purchase and Sale Indemnified Party with respect to such loss, claim, damage or collection liability and any other relevant equitable considerations. The reimbursement, indemnity and contribution obligations of such Originator under this Section shall be in addition to (but without duplication of) any liability which such 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 benefit of any Sold Receivable generated by such Originator;
(l) the failure or delay by successors, assigns, heirs and personal representatives of such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) and the failure of the sale Purchase and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Laws.Sale Indemnified
Appears in 1 contract
Samples: Purchase and Sale Agreement (PRA Health Sciences, Inc.)
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawApplicable Law, each OriginatorOriginator and NuStar Energy, severally jointly and for itself aloneseverally, hereby agrees to indemnify and hold harmless the Company and Buyer, each of its Affiliatesofficers, directors, employees, agents, employeesemployees and respective assigns, officersthe Administrative Agent, each Lender and directors each Group Agent (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, from and against any and all damages, claims, damageslosses, expensesjudgments, costs, losses and liabilities, penalties and related costs and expenses (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation or warranty made or deemed made by such Originator (or any employee, officer or agent of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any of the other Transaction Document to Documents, or any information or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure transfer by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold interest in any Pool Receivable or Related Right other than the related Contract transfer of any Pool Receivable and Related Security to conform the Buyer pursuant to any such applicable law, rule or regulationthis Agreement and the grant of a security interest to the Buyer pursuant to this Agreement;
(c) the failure by such Originator to vest in comply with the Company a First Priority Interest in terms of any Transaction Document or with any Applicable Law with respect to any Pool Receivable or the Sold Receivables generated by related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such OriginatorApplicable Law;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim; 708335522 13436693
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the chemicals or other property, products or services that are the subject of any Pool Receivable originated by such Originator);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable in the Receivables Pool (including a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the petrochemicals or other property, products or services to such Receivable or the furnishing or failure to furnish such chemicals or other property, products or services;
(h) any failure of such 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) the commingling of Collections of Pool Receivables at any time with other funds;
(ej) the Servicer’s failure or delay to provide any Obligor with an invoice or other evidence of indebtedness (so long as NuStar or an Affiliate of NuStar is the Servicer);
(k) 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;
(l) any claim brought by any Person other than a Purchase and Sale Indemnified Party arising from any activity by such Originator or any Affiliate of such Originator in servicing, administering or collecting any Pool Receivable;
(m) the failure by such Originator to pay when due any taxes, including, without limitation, sales, excise or personal property taxes;
(n) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to any such Sold Pool Receivable or the furnishing of or failure to furnish any such goods or services or relating other similar claim or defense not arising from the financial inability of any Obligor to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);pay undisputed indebtedness; 708335522 13436693
(fo) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the or in connection with goods or services which that are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(lp) any tax or governmental fee or charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including without limitation Attorney Costs in defending against the failure same, which are required to be paid by reason of the purchase or delay ownership of the Receivables generated by such Originator in providing or any Obligor Related Rights connected with an invoice or other evidence of indebtednessany such Receivables; or
(mq) any action taken by the failure Administrative Agent in accordance with Applicable Law as attorney-in-fact for such Originator pursuant to this Agreement or any other Transaction Document; provided that such indemnity shall not be available to any Purchase and Sale Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted solely from the gross negligence or willful misconduct of a Purchase and Sale Indemnified Party, (y) result from a claim brought by Originator, NuStar Energy or an Affiliate for breach of such Purchase and Sale Indemnified Party’s obligations under this Agreement or under any other Transaction Document, if the Originator, NuStar Energy or an Affiliate has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction or (z) constitute recourse with respect to a Pool Receivable by reason of the sale bankruptcy or insolvency, or the financial or credit condition or financial default, of the related Obligor. Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in this Article IX, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be deemed to be not so qualified. If for any reason the foregoing indemnification is unavailable to any Purchase and pledge Sale Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of such 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 such 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 such Originator under this Section shall be in addition to any liability which such 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 benefit of any Pool Receivable successors, assigns, heirs and personal representatives of such Originator and the Purchase and Sale Indemnified Parties. Any indemnification or contribution under this Section shall survive the Transaction Documents to comply with the notice requirements termination of FACA or any analogous State or local Laws.this Agreement. 708335522 13436693
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which that Buyer or any of its Stockholders, any of its assignees (including the Company Secured Parties and the Administrative Agent), or any of their respective officers, directors, employees, attorneys, agents or representatives and transferees, successors and assigns (each, a “Buyer Indemnified Person”) may have hereunder or under applicable law, each Originator, severally and for itself alone, Originator hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, and directors (each of the foregoing Persons being individually called a “Purchase and Sale Buyer Indemnified Party”), forthwith on demand, Person from and against any and all claims, damages, expenses, costs, losses and liabilities, including Attorney Costs (all of the foregoing being collectively called “Purchase and Sale Relevant Amounts”) arising out of Indemnified Amounts that may be claimed or resulting from the failure of asserted against or incurred by any such Originator to perform its obligations under this Agreement, Buyer Indemnified Person in connection with or arising out of the claims asserted against transactions contemplated under this Agreement or under any other Related Document and any actions or failures to act in connection therewith, including any and all associated reasonable legal costs and expenses, or in respect of any Transferred Receivable or any Contract therefor or the use by such Originator of the Sale Price therefor; provided that no Originator shall be liable for any indemnification to a Purchase and Sale Buyer Indemnified Party relating Person to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant extent that any such Indemnified Amounts to the extent, (a) result from such Purchase and Sale Relevant Amounts are Buyer Indemnified Person’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraudjurisdiction, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) constitute recourse for uncollectible or uncollected Transferred Receivables due to the credit risk failure (without cause or justification) or inability on the part of an the related Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables perform its obligations thereunder or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse occurrence of any Purchase and Sale Indemnified Party event of bankruptcy with respect to such Originator for any amounts otherwise specifically provided Obligor. Subject to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), ) and (b) and (c) of the previous proviso in the immediately preceding sentence, but otherwise without limiting the generality of the foregoing, each Originator, severally for itself alone, Originator shall indemnify pay on demand to each Purchase Buyer Indemnified Person any and Sale all Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:
(ai) the failure of reliance on any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Related Document (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or on any other information delivered by such Originator pursuant hereto or thereto that shall have been true and correct as of the date incorrect when made or deemed mademade or delivered;
(bii) the failure by such Originator to comply with any term, provision or covenant contained in this Agreement, any other Related Document or any agreement executed in connection herewith or therewith (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality), any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Transferred Receivable or the related Contract to conform to therefor, or the nonconformity of any Transferred Receivable or the Contract therefor with any such applicable law, rule or regulation;
(ciii) (x) the failure by such Originator to vest and maintain vested in Buyer, or to Transfer to Buyer, valid and properly perfected title to and sole record and beneficial ownership of the Company a First Priority Interest Receivables that constitute Transferred Receivables, together with all Collections in the Sold Receivables generated by such Originatorrespect thereof, free and clear of any Adverse Claim or (y) any Specified Filing;
(d) any commingling of Collections with other funds;
(eiv) any dispute, claim, offset or defense of any Obligor (other than its discharge in bankruptcy of an Obligorbankruptcy) of an Obligor to the payment of any Sold Receivable generated by such Originator that is the subject of a Transfer hereunder (including, without limitation, including (x) a defense based on such Receivable or the related Contract therefor not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its termsterms (other than as a result of a discharge in bankruptcy), or any other claim resulting from the sale of goods the merchandise or services related giving rise to any such Sold Receivable or the furnishing of or failure to furnish such goods merchandise or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by any Originator or any Affiliate thereof acting as the Servicer or a Sub-Servicer) and (y) resulting from or in connection with any Dilution Factors);
(v) any products liability claim or other claim arising out of or in connection with merchandise, insurance or services that is the subject of any Contract;
(vi) the commingling of Collections with respect to Transferred Receivables by any Originator at any time with its other funds or the funds of any other Person;
(vii) any failure by such Originator to cause the filing of, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or any other applicable laws with respect to any Transferred Receivable that is the subject of a Transfer hereunder to the extent that such filing is necessary to maintain the perfection and priority of Buyer in such Receivable, whether at the time of any such Transfer or at any subsequent time;
(viii) any investigation, Litigation or proceeding related to this Agreement or the use of the Sale Price obtained in connection with any Sale or the ownership of Transferred Receivables or Collections with respect thereto or in respect of any Transferred Receivable or Contract therefor;
(ix) any claim brought by any Person other than a Buyer Indemnified Person arising from any activity by such Originator or any of its Affiliates in servicing, administering or by collecting any agent or independent contractor retained by such Originator or its Affiliates)Transferred Receivables;
(fx) any (I) failure of such Originator (x) any Collection Account Bank to perform its duties and obligations in accordance comply with the provisions terms of this the applicable Collection Account Agreement, (y) any Contract Concentration Account Bank to comply with the terms of the applicable Concentration Account Agreement or (z) the Borrower Account Bank to comply with the terms of the Borrower Account Agreement or (II) dispute, claim, offset or defense of (x) any other Transaction Document to which it is a party or Collection Account Bank arising under the Contracts;
terms of the applicable Collection Account Agreement, (gy) any products liability, environmental or other claim by an Obligor or other third party 26 Concentration Account Bank arising out under the terms of the goods applicable Concentration Account or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(hz) the use of any Purchase Price paid to such Originator;
(i) Borrower Account Bank arising under the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any terms of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtednessBorrower Account Agreement; or
(mxi) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents withholding, deduction or Charge imposed upon any payments with respect to comply with the notice requirements of FACA any Transferred Receivable, any Borrower Assigned Agreement or any analogous State or local Lawsother Borrower Collateral.
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Td Synnex Corp)
Indemnities by the Originators. Without limiting any other rights which the Company that Purchaser may have hereunder or under applicable law, each Originator, severally and for itself alone, Originator hereby agrees to indemnify (and hold harmless the Company pay upon demand to) Purchaser and each of its assigns (and their respective Affiliates, agents, employees), officers, directors, agents and directors employees (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, damagestaxes, expensesliabilities, costs, losses expenses and liabilitiesfor all other amounts payable, including Attorney Costs reasonable attorneys’ fees (which attorneys may be employees of Purchaser or any such assign) and disbursements (all of the foregoing being collectively called referred to as “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of this Agreement or the failure acquisition, either directly or indirectly, by Purchaser of an interest in the Contracts of such Originator to perform its obligations under this Agreement, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the CompanyOriginator, excluding, Purchase and Sale Relevant however:
(a) Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by extent a final judgment of a court of competent jurisdiction by final and nonappealable judgment to have holds that such Indemnified Amounts resulted from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale the Indemnified Party, Party seeking indemnification;
(b) due Indemnified Amounts to the credit risk extent the same includes losses in respect of an Obligor and for which reimbursement would constitute recourse to any Originator for Contracts that are uncollectible Receivables on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(c) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Buyers of Buyer Interests under the Purchase Agreement as a loan or loans by the Buyers to Purchaser secured by, among other things, the Contracts, the Related Security and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claimthe Collections; provided, however, that nothing contained in this sentence shall limit the liability of such any Originator or limit the recourse of Purchaser to any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunderunder the terms of this Agreement. Without limiting the generality of the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, Originator shall indemnify each Purchase and Sale Purchaser for Indemnified Party for Purchase and Sale Relevant Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(ai) the failure of any representation or warranty made or deemed made by such Originator (or any officers of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any other Transaction Document to information or report delivered by such Originator pursuant hereto or thereto that shall have been true and correct as of the date false or incorrect when made or deemed made;
(bii) the failure by such Originator Originator, to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator Contract or agreement related thereto, or the related nonconformity of any Contract or the failure of any Sold Receivable or the related Contract to conform to agreement included therein with any such applicable law, rule or regulationregulation or any failure of such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(ciii) the any failure by of such Originator to vest perform its duties, covenants or other obligations in accordance with the Company a First Priority Interest in the Sold Receivables generated by such Originatorprovisions of this Agreement or any other Transaction Document;
(div) any commingling products liability, personal injury or damage, suit or other similar claim arising out of Collections or in connection with other fundsmerchandise, insurance or services that are the subject of any Contract;
(ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Receivable generated by Contract of such Originator (including, without limitation, a defense based on such Receivable Contract or the related Contract agreement 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 the merchandise or services service related to any such Sold Receivable Contract or the furnishing of or failure to furnish such goods merchandise or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)services;
(fvi) any failure the commingling of Collections of Contracts of such Originator to perform its duties and obligations in accordance at any time with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractsfunds;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(jvii) any investigation, litigation or proceeding relating related to or arising from this Agreement, any the transactions contemplated hereby, the use of the other Transaction Documents or proceeds of any Purchase, the ownership of the Sold Receivables generated by Contracts of such OriginatorOriginator or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(kviii) any inability to litigate any claim against any Obligor in respect of any Contract of such Originator as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any failure to vest and maintain vested in Purchaser, or to transfer to Purchaser, legal and equitable title to, and ownership of, the Contracts of such Originator and the Collections, and all of such Originator’s right, title and interest in the Related Security associated with the Contracts of such Originator, in each case, free and clear of any Liens;
(x) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Contract of such Originator and the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of the Purchase or at any subsequent time;
(xi) any action taken or omission by such Originator (which reduces or impairs the rights of Purchaser with respect to any Contract of its Affiliates) in such Originator or the enforcement or collection value of any Sold Receivable generated by such OriginatorContract;
(lxii) any attempt by any Person to void the failure Purchase hereunder under statutory provisions or delay by such Originator in providing any Obligor with an invoice common law or other evidence of indebtednessequitable action; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Laws.and
Appears in 1 contract
Samples: Receivables Sale Agreement (Patterson Companies, Inc.)
Indemnities by the Originators. Without limiting any ------------------------------ other rights which the Company Buyer may have hereunder or under applicable lawGovernmental Rule, each Originator, severally and for itself alone, Originator hereby agrees to indemnify the Buyer and hold harmless the Company any permitted assigns and each of its Affiliates, agents, employees, their respective officers, directors and directors employees (each of the foregoing Persons being individually called a “Purchase and Sale collectively, "Indemnified Party”), forthwith on demand, Parties") from and against any and all damages, losses, claims, damages------------------- liabilities, costs and expenses, costs, losses including reasonable attorneys' fees (which such attorneys may be employees of the Buyer) and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “Purchase and Sale Relevant referred to as "Indemnified Amounts”") awarded ------------------- against or incurred by any of them arising out of or resulting from as a result of this Agreement or the failure of such Originator to perform its obligations under this Agreementownership, either directly or arising out indirectly, by the Buyer of the claims asserted against a Purchase and Sale Indemnified Party relating Receivables related to the acquisition of the Sold Receivables by the Companysuch Originator, excluding, Purchase and Sale Relevant however, (i) Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to on the credit risk part of an Obligor and for which reimbursement would constitute Indemnified Party or (ii) recourse to any Originator (except as otherwise specifically provided in this Agreement) for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party related to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunderOriginator. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) generality of the previous sentenceforegoing, each Originator, severally for itself alone, the applicable Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(ai) the failure of reliance on any material representation or warranty made or deemed made by such Originator or Mattel, Inc. (or any officers of its officerssuch Originator or Mattel, employees or agentsInc.) under or in connection with this Agreement Agreement, any Payment Report or any other Transaction Document to information or report delivered by such Originator or Mattel, Inc. pursuant hereto, which shall have been true and correct as of the date false or incorrect in any material respect when made or deemed made;; or
(bii) the failure by such Originator to comply with any applicable law, rule or regulation Governmental Rule with respect to any Sold Receivable generated by such Originator or the related Contract Contract, or the failure nonconformity of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;Governmental Rule; or
(ciii) the failure by such Originator to vest and maintain vested in the Company a First Priority Interest in Buyer, ownership of the Sold Receivables generated originated by such Originator;, free and clear of any Adverse Claim (other than the Permitted Claim); or
(div) the failure to file by such Originator, or any commingling delay in filing by such Originator, any required financing statements, continuation statements, or other similar instruments or documents under the UCC of Collections any applicable jurisdiction or other applicable Governmental Rules with other funds;respect to any Receivables originated by such Originator; or
(ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Receivable generated included in a Transferred Interest related to Receivables originated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such the Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services merchandise related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);merchandise; or
(fvi) any failure of such Originator Mattel, Inc., as Servicer or otherwise, to perform its duties and or obligations in accordance with the provisions of this Agreement, any Contract Article VI; or any other Transaction Document to which it is a party or under the Contracts;----------
(gvii) any products liability, environmental liability claim or personal injury or property damage suit or other similar or related claim by an Obligor or other third party action of whatever sort arising out of the goods or in connection with merchandise or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local LawsReceivable.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, hereby xxxxxx agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys’ fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them to the extent arising out of or resulting from as a result of (a) the breach of any representation or warranty made by such Originator herein or in any other Transaction Document to which it is a party or (b) the failure of such Originator to perform its obligations under this Agreement, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:
(a) the failure of any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to have been true and correct as of the date made or deemed made;
(b) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originator;
(d) any commingling of Collections with other funds;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligor) of an Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party party; excluding, however, (x) Purchase and Sale Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds such Purchase and Sale Indemnified Amounts resulted from gross negligence or under willful misconduct on the Contracts;
part of such Purchase and Sale Indemnified Party, (gy) any products liability, environmental indemnification which has the effect of recourse for non-payment or uncollectibility of the Receivables due to a discharge in bankruptcy or similar insolvency proceeding or other claim credit related reasons with respect to the relevant Obligor and (z) any net income or franchise tax imposed on such Purchase and Sale Indemnified Party or any other taxes imposed against such Purchase and Sale Indemnified Party to the extent such taxes are measured by an Obligor or other third party arising out against the gross income or net income or receipts of such Person. If for any reason the goods indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or services which are is insufficient to hold such Purchase and Sale Indemnified Party harmless, then each Originator agrees that it shall contribute to the subject of any Sold Receivable generated amount paid or payable by such Originator or Purchase and Sale Indemnified Party to the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable maximum extent permitted under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsapplicable law.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which the Company Buyer may have hereunder or under applicable law, each Originatorof the Originators, severally on a joint and for itself aloneseveral basis, hereby agrees to indemnify the Buyer and hold harmless the Company its assigns, and each of its Affiliatestheir respective directors, agentsofficers, employees, officers, agents and directors (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, expenses, costs, losses and liabilities, including Attorney Costs attorneys (all of the foregoing being collectively called “Purchase referred to as "INDEMNIFIED PARTIES") from and Sale Relevant Amounts”) arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementagainst any and all damages, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damagesliabilities and related costs and expenses, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability including reasonable attorneys' fees and disbursements (all of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject being collectively referred to the limitations set forth in clauses (a), (bas "INDEMNIFIED AMOUNTS") and (c) awarded against or incurred by any of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to them arising out of or resulting from:
(ai) the failure sale of any Receivable under this Agreement which is not at the date of Purchase an Eligible Receivable;
(ii) reliance on any representation or warranty made or deemed made by such any Originator (or any of its officers, employees or agents) their respective officers under or in connection with this Agreement or any other Transaction Document to Agreement, which shall have been true and correct as of the date false or incorrect in any material respect when made or deemed mademade or delivered;
(biii) the failure by such any Originator 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 Sold Receivable generated by such Originator or Receivable, the related Contract or the failure Related Security, or the nonconformity of any Sold Receivable or Receivable, the related Contract to conform to or the Related Security with any such applicable law, rule or regulation;
(cA) the failure to vest and maintain vested in the Buyer or to transfer to the Buyer, legal and equitable title to and ownership of, the Receivables and the other Transferred Assets which are, or are purported to be, sold by the Originators 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 whether existing at the time of the Purchase of any such Receivable or at any time thereafter (other than Adverse Claims created in favor of the Buyer hereunder or by the Buyer under the Receivables Purchase Agreement);
(v) the failure by such any Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originatormake any payment required on its part to be made hereunder;
(dvi) the failure to file, or any commingling delay in filing, financing statements or other similar instruments or documents under the UCC of Collections any applicable jurisdiction or other applicable laws with respect to any Receivables and other fundsTransferred Assets which are, or are purported to be, sold by the Originators hereunder, whether at the time of the Purchase or at any subsequent time;
(evii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Receivable generated which is, or is purported to be sold by such an Originator hereunder (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale Originator's performance of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish perform such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)services;
(fviii) any failure of such any Originator to perform its duties and or obligations in accordance with the provisions of this Agreement, any Contract Agreement or any other Transaction Document failure by any Originator or any Affiliate thereof to which it is a party or perform its respective duties under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(iix) the failure of such Originator to pay when due any Taxestaxes, energy surcharges including without limitation, sales, excise or other governmental charges personal property taxes payable by it in connection with the Sold Receivables generated by it or this AgreementTransferred Assets;
(jx) any investigation, litigation or proceeding relating related to this Agreement, any Agreement or the use of proceeds of the other Transaction Documents Purchase or the ownership by the Buyer of Transferred Assets except any such investigation, litigation or proceeding arising from the gross negligence or willful misconduct of the Sold Receivables generated by such OriginatorBuyer;
(kxi) any action taken attempt by such Originator (any Person to void or otherwise avoid any transfer of its Affiliates) in a Transferred Asset from the enforcement Originators to the Buyer under any statutory provision or collection common law or equitable action, including, without limitation, any provision of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtednessBankruptcy Code; or
(mxii) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA Originator or any analogous State of their respective agents or local Lawsrepresentatives (including, without limitation, agents, representatives and employees of the Originators acting pursuant to authority granted under SECTION 6.01) to remit to the Servicer, Collections of Transferred Assets remitted to such Originator or any such agent or representative. Any amounts subject to the indemnification provisions of this SECTION 8.01 shall be paid by the applicable Originator to the Buyer within two (2) Business Days following the Buyer's written demand therefor. Notwithstanding any other provision of this Agreement to the contrary, the Originators 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 (Superior National Insurance Group Inc)
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawLaw, each Originatorthe Originators, severally jointly and for itself aloneseverally, hereby agrees agree to indemnify and hold harmless the Company and Buyer, each of its Affiliatesofficers, directors, employees, agents, employeesemployees and respective assigns, officers, the Administrative Agent and directors each Purchaser (each of the foregoing Persons being individually called a “Purchase Sale and Sale Contribution Indemnified Party”), forthwith on demand, from and against any and all damages, claims, damageslosses, expensesjudgments, costs, losses and liabilities, penalties and related costs and expenses (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase Sale and Sale Relevant Contribution Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation or warranty made or deemed made by such any Originator (or any of its officersemployee, employees officer or agentsagent thereof) under or in connection with this Agreement or any of the other Transaction Document to Documents, or any information or report delivered by or on behalf of any Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure by such any Originator to transfer good and marketable title in and to any Pool Receivable or Related Right to the Buyer, free and clear of any Adverse Claims, and that is freely assignable, pursuant to this Agreement;
(c) the failure by any Originator to comply with the terms of any applicable law, rule Transaction Document or regulation with any Law with respect to any Sold Pool Receivable generated by such Originator or the related Contract Contract; or the failure of any Sold Pool Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such OriginatorLaw;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) against all Persons (including any commingling bankruptcy trustee or similar Person), in either case, free and clear of Collections with other fundsany Adverse Claim;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables (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);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy or any such dispute, claim, offset or defense relating to or arising from insolvency, lack of an creditworthiness or other financial inability to pay of the Obligor) of an the Obligor to the payment of any Sold Receivable generated by such Originator in the Receivables Pool (including, without limitation, including a defense based on such Receivable Receivable’s or the related Contract 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 goods the property, products or services related giving rise to any such Sold Receivable or the furnishing of or failure to furnish such goods property, products or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)services;
(fh) any failure of such any Originator to perform any of its duties and or obligations in accordance with the provisions hereof and of this Agreement, any Contract or any each other Transaction Document related to which it is a party Pool Receivables or under to timely and fully comply with the ContractsCredit and Collection Policy in regard to each Pool Receivable;
(gi) any products liability, environmental or other claim by an Obligor or other third party arising out of the or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this AgreementReceivable;
(j) any investigation, litigation or proceeding relating to this Agreement, any the misdirection of the other Transaction Documents Collections or the ownership commingling of the Sold Collections of Pool Receivables generated by such Originatorat any time with other funds;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing 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 claim brought by any Person other than a Sale and Contribution Indemnified Party arising from any activity by any Originator or any Affiliate thereof in servicing, administering or collecting any Pool Receivable;
(n) the failure by any Originator to pay when due any Taxes, including sales, excise or personal property Taxes;
(o) [reserved];
(p) [reserved];
(q) any Tax or governmental fee or charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or ownership of the Receivables or any Related Rights;
(r) any liability under Section 4.03 of the Receivables Purchase Agreement; or
(ms) the failure of any Receivable sold, transferred, contributed or assigned hereunder as an Eligible Receivable to actually constitute an Eligible Receivable on the sale date of sale, transfer, contribution or assignment. provided that such indemnity shall not be available to any Sale and pledge Contribution Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of a Sale and Contribution Indemnified Party or (y) to the extent the same includes losses in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. If for any reason the foregoing indemnification is unavailable to any Sale and Contribution Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Sale and Contribution 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 Originators and their Affiliates, on the one hand, and such Sale and Contribution Indemnified Party, on the other hand, in the matters contemplated by this Agreement as well as the relative fault of the Originators and their Affiliates and such Sale and Contribution Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations; provided that, notwithstanding the foregoing, the Originators shall have no contribution obligation to the extent such loss, claim, damage or liability are in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. The reimbursement, indemnity and contribution obligations of the Originators under this Section 9.1 shall be in addition to any liability which the Originators may otherwise have, shall extend upon the same terms and conditions to the Sale and Contribution Indemnified Party, and shall be binding upon and inure to the benefit of any Pool Receivable successors, assigns, heirs and personal representatives of such Originator and the Sale and Contribution Indemnified Parties. Any indemnification or contribution under this Section 9.1 shall survive the Transaction Documents to comply with the notice requirements termination of FACA or any analogous State or local Lawsthis Agreement.
Appears in 1 contract
Samples: Sale and Contribution Agreement (Fortrea Holdings Inc.)
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawLaw, each Originatorthe Originators, severally jointly and for itself aloneseverally, hereby agrees agree to indemnify and hold harmless the Company and Buyer, each of its Affiliatesofficers, directors, employees, agents, employees, officersemployees and respective assigns, and directors (by virtue of the collateral assignment of this Agreement by the Buyer pursuant to Section 2.08(i)(i)(D) of the Receivables Purchase Agreement) the Administrative Agent and each Purchaser (each of the foregoing Persons being individually called a “Purchase Sale and Sale Contribution Indemnified Party”), forthwith on demand, from and against any and all damages, claims, damageslosses, expensesjudgments, costs, losses and liabilities, penalties and related costs and expenses (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase Sale and Sale Relevant Contribution Indemnified Amounts”) awarded against or incurred by any of them directly arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation or warranty made or deemed made by such any Originator (or any of its officersemployee, employees officer or agentsagent thereof) under or in connection with this Agreement or any of the other Transaction Document to Documents, or any information or report delivered by or on behalf of any Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure by such any Originator to transfer good and marketable title in and to any Pool Receivable or Related Right to the Buyer, free and clear of any Adverse Claims, and that is freely assignable, pursuant to this Agreement;
(c) the failure by any Originator to comply with the terms of any applicable law, rule Transaction Document or regulation with any Law in any material respect with respect to any Sold Pool Receivable generated by such Originator or the related Contract Contract; or the failure of any Sold Pool Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such OriginatorLaw;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables (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);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable in the Receivables Pool (including a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the property, products or services giving rise to such Receivable or the furnishing or failure to furnish such property, products or services;
(h) any failure of any Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables in any material respect, or to timely and fully comply in all material respects with the Credit and Collection Policy in regard to each Pool Receivable;
(i) any products liability, environmental or other claim arising out of or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Receivable;
(j) the misdirection of Collections or the commingling of Collections of Pool Receivables at any time with other funds;
(ek) 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;
(l) any claim brought by any Person other than a Sale and Contribution Indemnified Party arising from any activity by any Originator or any Affiliate thereof in servicing, administering or collecting any Pool Receivable;
(m) the failure by any Originator to pay when due any Taxes with respect to the Pool Receivables, including sales, excise or personal property Taxes, but excluding any taxes calculated or based upon the income of any Contribution Indemnified Party;
(n) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, 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 Sold Pool Receivable or the furnishing of or failure to furnish any such goods or services or relating other similar claim or defense not arising from the financial inability of any Obligor to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)pay undisputed indebtedness;
(fo) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the or in connection with goods or services which that are the subject of any Sold Receivable generated by such Originator or the related ContractReceivable;
(hp) any governmental fee or charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including Attorney Costs in defending against the use same, which are required to be paid by reason of the purchase or ownership of the Receivables or any Purchase Price paid to such OriginatorRelated Rights;
(iq) any liability under Section 4.03 of the Receivables Purchase Agreement;
(r) any breach of Sections 6.01(w), 7.01(y) or 7.02(q) of the Receivable Purchase Agreement; or
(s) the failure of any Receivable sold, transferred, contributed or assigned hereunder as an Eligible Receivable to actually constitute an Eligible Receivable on the date of sale, transfer, contribution or assignment. provided that such Originator indemnity shall not be available to pay when due any TaxesSale and Contribution Indemnified Party to the extent that such losses, energy surcharges claims, damages, liabilities or related expenses (x) are determined to have resulted from the gross negligence or willful misconduct of a Sale and Contribution Indemnified Party or (y) to the extent the same includes losses, claims, damages or liabilities in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other governmental charges payable by it financial inability to pay, of the related Obligor. Notwithstanding anything to the contrary in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any solely for purposes of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) ’s indemnification obligations in this Article IX, any action taken representation, warranty or covenant qualified by such Originator (the occurrence or any non-occurrence of its Affiliates) in a material adverse effect or similar concepts of materiality shall be deemed to be not so qualified. Any indemnification or contribution under this Section 9.1 shall survive the enforcement or collection termination of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsthis Agreement.
Appears in 1 contract
Samples: Sale and Contribution Agreement (Mativ Holdings, Inc.)
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, jointly and severally with each other Originator, hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys’ fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Company, proceeds thereof or therefrom; excluding, however, (i) Purchase and Sale Relevant Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (bii) 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 credit risk of an relevant Obligor and for which reimbursement would constitute recourse to (iii) any Originator for uncollectible Receivables net income or (c) franchise tax imposed on such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to by the jurisdiction under the laws of which such Originator for Purchase and Sale Indemnified Party is organized or any amounts otherwise specifically provided to be paid by such Originator hereunder. political subdivision thereof Without limiting the foregoing indemnificationforegoing, but and subject to the limitations exclusions set forth in clauses (a), (b) and (c) of the previous preceding sentence, each Originator, severally for itself alone, jointly and severally with each Originator, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure transfer by such 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 such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, or any information or report delivered by Originator pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect when made or deemed made;
(bc) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator sold or otherwise transferred or purported to be transferred hereunder or the related Contract, or the nonconformity of any Receivable generated by such Originator sold or otherwise transferred or purported to be transferred hereunder or the related Contract or the failure of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;
(cd) the failure by such Originator to vest and maintain vested in the Company a First Priority Interest an ownership interest in the Sold Receivables generated by such Originator;
(d) Originator sold or otherwise transferred or purported to be transferred hereunder free and clear of any commingling of Collections with other fundsAdverse Claim;
(e) the failure to file, or any delay in filing, by such 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 by such Originator sold or otherwise transferred or purported to be transferred hereunder, whether at the time of any purchase or at any subsequent time to the extent required hereunder;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy or similar insolvency proceeding of an ObligorObligor or other credit related reasons) of an the Obligor to the payment of any Sold Receivable or purported Receivable generated by such Originator sold or otherwise transferred or purported to be transferred hereunder (including, without limitation, a defense based on such Receivable Receivable’s or the related Contract 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 goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractsservices;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the goods or in connection with services which that are the subject of any Sold Receivable generated by such 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 are required to be paid by reason of the purchase or ownership of the Receivables generated by such Originator or any Related Security connected with any such Receivables. If for any reason the related Contract;
(h) 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 each of the use of any Purchase Price Originators, severally and for itself, jointly and severally with each other Originator, shall contribute to the amount paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with such Purchase and Sale Indemnified Party to the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable maximum extent permitted under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsapplicable law.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Arch Western Resources LLC)
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawApplicable Law, each OriginatorOriginator and Evoqua, severally jointly and for itself aloneseverally, hereby agrees to indemnify and hold harmless the Company and Buyer, each of its Affiliatesofficers, directors, employees, agents, employeesemployees and respective assigns, officers, the Administrative Agent and directors each Lender (each of the foregoing Persons being individually called a “Purchase Sale and Sale Contribution Indemnified Party”), forthwith on demand, from and against any and all damages, claims, damageslosses, expensesjudgments, costs, losses and liabilities, penalties and related costs and expenses (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase Sale and Sale Relevant Contribution Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation or warranty made or deemed made by such Originator (or any employee, officer or agent of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any of the other Transaction Document to Documents, or any information or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure by such Originator to comply with any applicable law, rule or regulation with respect transfer good and marketable title in and to any Sold Pool Receivable generated by such Originator or Related Right to the related Contract or the failure Buyer, free and clear of any Sold Receivable or the related Contract Adverse Claims, and that is freely assignable, pursuant to conform to any such applicable law, rule or regulationthis Agreement;
(c) the failure by such Originator to vest in comply with the Company a First Priority Interest in terms of any Transaction Document or with any Applicable Law with respect to any Pool Receivable or the Sold Receivables generated by related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such OriginatorApplicable Law;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable originated by such Originator);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable in the Receivables Pool (including a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the property, products or services giving rise to such Receivable or the furnishing or failure to furnish such property, products or services;
(h) any failure of such Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(i) the commingling by such Originator of Collections of Pool Receivables at any time with other funds;
(ej) the failure to provide, or delay in providing, any Obligor with an invoice or other evidence of indebtedness;
(k) any investigation, litigation or proceeding (actual or threatened) related to such Originator’s performance under this Agreement or any other Transaction Document or in respect of any Pool Receivable originated by such Originator or any Related Rights with respect thereto;
(l) any claim brought by any Person other than a Sale and Contribution Indemnified Party arising from any activity by such Originator or any Affiliate of such Originator (other than the Servicer) in servicing, administering or collecting any Pool Receivable;
(m) the failure by such Originator to pay when due any Taxes, including, without limitation, sales, excise or personal property Taxes;
(n) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to any such Sold Pool Receivable or the furnishing of or failure to furnish any such goods or services or relating other similar claim or defense not arising from the financial inability of any Obligor to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)pay undisputed indebtedness;
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(lo) the failure or delay by such Originator in providing to provide any Obligor with an invoice or other evidence of indebtedness;
(p) any Tax or governmental fee or charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including without limitation Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or ownership of the Receivables generated by such Originator or any Related Rights connected with any such Receivables (including as a result of any breach of the representations of Section 6.01(v) of the Receivables Financing Agreement or the covenants of Section 7.01(y) of the Receivables Financing Agreement);
(q) any liability under Section 4.03 of the Receivables Financing Agreement; or
(mr) any Receivable sold, transferred, contributed or assigned hereunder by such Originator as an Eligible Receivable on the failure date of sale, transfer, contribution or assignment of such Receivable but which is not an Eligible Receivable at such time. provided that such indemnity shall not be available to any Sale and Contribution Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of a Sale and Contribution Indemnified Party or (y) constitute recourse with respect to a Pool Receivable by reason of the sale bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in this Article IX, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be deemed to be not so qualified. If for any reason the foregoing indemnification is unavailable to any Sale and pledge Contribution Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Sale and Contribution 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 such Originator and its Affiliates, on the one hand, and such Sale and Contribution Indemnified Party, on the other hand, in the matters contemplated by this Agreement as well as the relative fault of such Originator and its Affiliates and such Sale and Contribution Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations. The reimbursement, indemnity and contribution obligations of such Originator under this Section 9.1 shall be in addition to any liability which such Originator may otherwise have, shall extend upon the same terms and conditions to the Sale and Contribution Indemnified Party, and shall be binding upon and inure to the benefit of any Pool Receivable successors, assigns, heirs and personal representatives of such Originator and the Sale and Contribution Indemnified Parties. Any indemnification or contribution under this Section 9.1 shall survive the Transaction Documents to comply with the notice requirements termination of FACA or any analogous State or local Lawsthis Agreement.
Appears in 1 contract
Samples: Sale and Contribution Agreement (Evoqua Water Technologies Corp.)
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, alone hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys' fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “Purchase and Sale Relevant Amounts”"PURCHASE AND SALE INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Companyproceeds thereof or therefrom, excludingEXCLUDING, HOWEVER, (i) Purchase and Sale Relevant Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (bii) due to any indemnification which has the credit risk effect of an Obligor and recourse for which reimbursement would constitute recourse non-payment of the Receivables to any Originator for uncollectible Receivables or indemnitor (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts except as otherwise specifically provided to be paid under this SECTION 9.1) and (iii) any tax based upon or measured by such Originator hereundernet income property, or gross receipts. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentenceforegoing, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure transfer by such 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 such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, or any information or report delivered by Originator pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect in any material respect when made or deemed made;
(bc) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract, or the nonconformity of any Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;
(cd) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by such 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 Purchaser 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 vest file, or any delay in filing, financing statements or other similar instruments or documents under the Company a First Priority Interest in the Sold UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by such Originator, whether at the time of any purchase or contribution or at any subsequent time;
(d) any commingling of Collections with other funds;
(ef) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an the Obligor to the payment of any Sold Receivable or purported Receivable generated by such Originator (including, without limitation, a defense based on such Receivable Receivable's or the related Contract 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 goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractsservices;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the goods or in connection with services which that are the subject of any Sold Receivable generated by such 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 such Originator or any Related Security connected with any such Receivables. If for any reason the related Contract;
(h) 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 each of the use of any Purchase Price Originators, severally and for itself, shall contribute to the amount paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with such Purchase and Sale Indemnified Party to the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable maximum extent permitted under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsapplicable law.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Worthington Industries Inc)
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawApplicable Law, each Originator, severally jointly and for itself aloneseverally, hereby agrees to indemnify the Buyer, the Credit Parties (as assignees of the Buyer), the Affected Persons (as assignees of the Buyer) and hold harmless the Company and each of its Affiliates, agents, employeestheir respective assigns, officers, directors, agents and directors employees (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, ) from and against any and all claimsloss, damagesliability, expensesexpense, costsdamage or injury suffered or sustained by reason of (i) any failure of such Originator to comply with any of its covenants, losses and liabilitiesobligations or agreements contained in this Agreement or any other Transaction Document to which it is a party or such Originator’s gross negligence, (ii) the breach of any representation or warranty made or deemed made by such Originator under or in connection with this Agreement or any of the other Transaction Documents to which it is a party or (iii) willful misconduct in the performance of its duties or obligations under this Agreement or any other Transaction Document to which it is a party, including any judgment, award, settlement, Attorney Costs and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim (all of the foregoing being collectively called referred to as, “Purchase and Sale Relevant Indemnified Amounts”) arising out of or resulting from the failure of such Originator to perform its obligations under this Agreement, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder). Without limiting or being limited by the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentenceforegoing, each Originator, severally for itself alonejointly and severally, shall indemnify pay on demand, to each Purchase and Sale Indemnified Party for any and all amounts necessary to indemnify such Purchase and Sale Relevant Indemnified Party from and against any and all Purchase and Sale Indemnified Amounts relating to or resulting fromfrom any of the following:
(a) the failure breach of any representation or warranty made or deemed made by such Originator (or any employee, officer or agent of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any of the other Transaction Document Documents to which it is a party, or any information or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure transfer by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold interest in any Receivable or the related Contract Related Right sold or purportedly sold to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originator;
(d) any commingling of Collections with other funds;
(e) any dispute, claim, offset or defense (Buyer hereunder other than discharge in bankruptcy the transfer of an Obligor) of an Obligor any Receivable and Related Security to the payment Buyer pursuant to this Agreement and the grant of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or security interest to 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 services related Buyer pursuant to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Laws.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawLaw, each Originator, severally and for itself alone, Originator hereby agrees to indemnify and hold harmless the Company Buyer and each of its Affiliatesofficers, directors, employees, agents, employees, officers, and directors respective assigns (each of the foregoing Persons being individually called a “Purchase Sale and Sale Contribution Indemnified Party”), forthwith on demandwithin ten Business Days following written demand (which demand shall be accompanied by documentation of the Sale and Contribution Indemnified Amounts in reasonable detail), from and against any and all damages, claims, damageslosses, expensesjudgments, costs, losses and liabilities, penalties and related costs and expenses (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase Sale and Sale Relevant Contribution Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure of any representation written representation, warranty or warranty statement made or deemed made by such Originator (or any of its respective officers, employees or agents) under or in connection with this Agreement or any of the other Transaction Document to Documents, or any other written information or report (other than projections, forward-looking statements and information of a general economic or industry nature) delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect in any material respect when made or deemed mademade or delivered;
(b) [reserved];
(c) the failure by such Originator to comply with the terms of any applicable law, rule or regulation Law with respect to any Sold Pool Receivable generated by of such Originator or the related Contract Contract; or the failure of any Sold Pool Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such OriginatorLaw;
(d) the lack of an enforceable ownership interest, or a perfected lien, in either case, of the Buyer in the Pool Receivables (and all Related Rights of such Originator), in each case, free and clear of any commingling of Collections with Adverse Claim other fundsthan Permitted Liens;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Laws with respect to any Pool Receivable of such Originator or the Related Rights;
(f) [reserved];
(g) any dispute, claim, offset or defense (other than any reduction, revision, or discharge in bankruptcy of an the applicable Obligor) of an such Obligor to the payment of any Sold Receivable generated by of such Originator in the Receivables Pool (including, without limitation, including a defense based on such Receivable Receivable’s or the related Contract 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 goods the property, products or rendering services related giving rise to any such Sold Receivable or the furnishing of or failure to furnish such goods property, products or services or relating other similar claim or defense not arising from the financial inability of any Obligor to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)pay undisputed indebtedness;
(fh) any failure of such Originator to perform any of its duties and or obligations in accordance with the provisions hereof and of this Agreement, any Contract or any each other Transaction Document related to which it is a party Pool Receivables of such Originator or under to timely and fully comply with the ContractsCredit and Collection Policy in regard to each Pool Receivable of such Originator;
(gi) any products liability, environmental or other claim by an Obligor or other third party arising out of the or in connection with any Receivable of such Originator or other merchandise, goods or services which are the subject of or related to any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(ij) the failure commingling of Collections of Pool Receivables of such Originator to pay when due at any Taxes, energy surcharges or time with other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreementfunds;
(jk) [reserved];
(l) any investigation, litigation or proceeding relating (actual or threatened) brought by a Person other than a Sale and Contribution Indemnified Party related to this Agreement, Agreement or any of the other Transaction Documents Document to which such Originator is a party or the ownership in respect of the Sold Receivables generated by any Pool Receivable or any Related Rights of such Originator;
(km) any action or omission by such Originator that reduces or impairs the rights of the Buyer with respect to any Receivables or Related Rights or the value of any Receivables or Related Rights;
(n) [reserved];
(o) [reserved];
(p) [reserved];
(q) the failure of any Receivable sold, transferred, contributed or assigned hereunder and included by the Originator as an Eligible Receivable to actually constitute an Eligible Receivable on the date of sale, transfer, contribution or assignment;
(r) any setoff with respect to any Receivable of such Originator;
(s) any provision in any Contract of such Originator that either (i) permits or provides for any reduction in the Outstanding Balance of the Receivable created under such Contract and any accrued interest thereon or (ii) could otherwise materially hinder the ability to receive Collections with respect to such Receivable; or
(t) any action taken by such the Buyer as attorney-in-fact for Originator (in accordance with this Agreement or any other Transaction Document; provided that such indemnity shall not be available to any Sale and Contribution Indemnified Party to the extent that any Sale and Contribution Indemnified Amounts (x) are determined by a court of its Affiliatescompetent jurisdiction in a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of a Sale and Contribution Indemnified Party, (y) to the extent the same arises due to the credit risk of an Obligor or are otherwise related to an Obligor’s failure to pay in accordance with the enforcement or collection related Receivables (other than any loss based on (A)(1) a failure to pay as a result of any Sold Receivable generated failure by such Originator;
any Originator to comply with any terms of the related Contract, (l2) the failure unenforceability of the Receivable or delay by such Originator the related Contract in providing any Obligor accordance with an invoice their respective terms, or other evidence of indebtedness; or
(m3) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents Originator to comply with applicable law or regulation with respect to the notice requirements Receivable or the related Contractor (B) a breach of FACA a representation or warranty that any analogous State such Receivable was an Eligible Receivable when sold by such Originator hereunder (if so represented at such time), each of which shall be a Sale and Contribution Indemnified Amount hereunder), or local Laws(z) constitute Taxes (other than Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim) (such amounts, “Excluded Losses”).
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employeesassigns, officers, directors, employees and directors 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, damagesjudgments, expenses, costs, losses and liabilities, penalties, costs and expenses (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase and Sale Relevant Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this Agreement, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) such Purchase and Sale Relevant Amounts result from a claim brought by an Originator or another party to a Transaction Document against an Purchase and Sale Indemnified Party for breach in bad faith of such Purchase and Sale Indemnified Party’s obligations hereunder or under any other Transaction Document, if such Originator or other Person has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction, (c) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (cd) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claimTaxes; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b), (c) and (cd) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:
(a) the failure of any representation or warranty made or deemed made by such Originator (or any employee, officer or agent of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any other Transaction Document to have been true and correct as of the date made or deemed made;
(b) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originator;
(d) any commingling of Collections with other funds;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligor) of an Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Targa Resources Partners LP)
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, (a) Each Originator hereby agrees to indemnify and hold harmless the Company Buyer and each of its Affiliatesassigns (including any Secured Party under the Receivables Purchase Agreement), agents, employees, and their respective officers, directors, agents and directors employees (each of the foregoing Persons being individually called a each, an “Purchase and Sale Originator Indemnified Party”), forthwith on demand, from and against any loss, liability, expense, damage or injury suffered or sustained by reason of (i) such Originator’s failure to duly and all claims, damages, expenses, costs, losses and liabilities, including Attorney Costs (all of the foregoing being collectively called “Purchase and Sale Relevant Amounts”) arising out of or resulting from the failure of such Originator to punctually perform its obligations under this Agreement, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating pursuant to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:
(a) the failure of any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to have been true and correct as of the date made or deemed made;
(b) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originator;
(d) any commingling of Collections with other funds;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligor) of an Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party party, (ii) the breach by such Originator of any of its representations, warranties or under the Contracts;
covenants hereunder, (giii) any products liability, environmental or other claim by an Obligor or other third party arising out violation of the goods or services which are the subject of any Sold Receivable generated Applicable Law by such Originator or the related Contract;
(hiv) the use of any Purchase Price paid to such Originator;
(i) the failure Adverse Claim asserted by any creditor of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, against any of the other Transaction Documents Receivables or the ownership Related Rights (all of the Sold Receivables generated by such Originator;
foregoing being collectively referred to as “Originator Indemnified Amounts”); excluding, however, (kA) any action taken by Originator Indemnified Amounts to the extent arising out of or resulting from the gross negligence or willful misconduct of such Originator (Indemnified Party or any of its Affiliates) in Related Indemnified Parties or the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay breach by such Originator Indemnified Party or any of its Related Indemnified Parties of its obligations under any Transaction Document to which it is a party, in providing each case, as determined in a final non-appealable judgment by a court of competent jurisdiction and (B) any Obligor with an invoice Credit Risk Losses or other evidence losses arising under arrangements (synthetically or otherwise) to the extent such arrangements have the effect of indebtedness; orreplicating, in whole or in part, exposure to Credit Risk Losses.
(mb) In no event shall any Originator be liable hereunder to any Originator Indemnified Party or any other Person for any special, indirect, consequential or punitive damages, including but not limited to lost profits, even if the failure Canadian Servicer has been advised of the sale likelihood of such loss or damage and pledge regardless of the form of action.
(c) If for any Pool Receivable reason any indemnification to which an Originator Indemnified Party would otherwise be entitled pursuant to the terms of Section 9.1(a) is unavailable to such Originator Indemnified Party or insufficient to hold it harmless, then the applicable Originator shall contribute to the amount paid or payable by such Originator 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 such Originator and its Related Indemnified Parties on the one hand and such Originator Indemnified Party and its Affiliates 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 Originator Indemnified Party and its Related Indemnified Parties with respect to such loss, claim, damage or liability and any other relevant equitable considerations. The reimbursement, indemnity and contribution obligations of each Originator under this Section shall, to the Transaction Documents extent not duplicative, be in addition to comply with any liability which such Originator may otherwise have.
(d) All amounts owed by any Originator under this Section 9.1 shall be paid by such Originator by the notice requirements Monthly Settlement Date following the Fiscal Month during which such Originator has received the written demand of FACA the related Originator Indemnified Amounts from the applicable Originator Indemnified Party. Any indemnification or any analogous State or local Lawscontribution under this Section shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Canadian Purchase and Sale Agreement (NCR Atleos Corp)
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys’ fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them to the extent arising out of or resulting from as a result of (a) the breach of any representation or warranty made by such Originator herein or in any other Transaction Document to which it is a party or (b) the failure of such Originator to perform its obligations under this Agreement, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:
(a) the failure of any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to have been true and correct as of the date made or deemed made;
(b) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originator;
(d) any commingling of Collections with other funds;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligor) of an Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party party; excluding, however, (x) Purchase and Sale Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds such Purchase and Sale Indemnified Amounts resulted from gross negligence or under willful misconduct on the Contracts;
part of such Purchase and Sale Indemnified Party, (gy) any products liability, environmental indemnification which has the effect of recourse for non-payment or uncollectibility of the Receivables due to a discharge in bankruptcy or similar insolvency proceeding or other claim credit related reasons with respect to the relevant Obligor and (z) any net income or franchise tax imposed on such Purchase and Sale Indemnified Party or any other taxes imposed against such Purchase and Sale Indemnified Party to the extent such taxes are measured by an Obligor or other third party arising out against the gross income or net income or receipts of such Person. If for any reason the goods indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or services which are is insufficient to hold such Purchase and Sale Indemnified Party harmless, then each Originator agrees that it shall contribute to the subject of any Sold Receivable generated amount paid or payable by such Originator or Purchase and Sale Indemnified Party to the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable maximum extent permitted under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsapplicable law.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawApplicable Law, each Originator, severally jointly and for itself aloneseverally, hereby agrees to indemnify and hold harmless the Company and Buyer, each of its Affiliatesofficers, directors, employees, agents, employeesemployees and respective assigns, officers, the Administrative Agent and directors each Lender (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, from and against any and all damages, claims, damageslosses, expensesjudgments, costs, losses and liabilities, penalties and related costs and expenses (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation or warranty made or deemed made by such Originator (or any employee, officer or agent of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any of the other Transaction Document to Documents, or any information or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure transfer by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold interest in any Pool Receivable or Related Right other than the related Contract transfer of any Pool Receivable and Related Rights to conform the Buyer pursuant to any such applicable law, rule or regulationthis Agreement and the grant of a security interest to the Buyer pursuant to this Agreement;
(c) the failure by such Originator to vest in comply with the Company a First Priority Interest in terms of any Transaction Document or with any Applicable Law with respect to any Pool Receivable or the Sold Receivables generated by related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such OriginatorApplicable Law;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable originated by such Originator);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable in the Receivables Pool (including a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the property, products or services giving rise to such Receivable or the furnishing or failure to furnish such property, products or services;
(h) any failure of such Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(i) any products liability, environmental or other claim arising out of or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Receivable;
(j) the commingling of Collections of Pool Receivables at any time with other funds;
(ek) 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 claim brought by any Person other than a Purchase and Sale Indemnified Party arising from any activity by such Originator or any Affiliate of such Originator in servicing, administering or collecting any Pool Receivable;
(n) the failure by such Originator to pay when due any Taxes, including, without limitation, sales, excise or personal property taxes;
(o) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to any such Sold Pool Receivable or the furnishing of or failure to furnish any such goods or services or relating other similar claim or defense not arising from the financial inability of any Obligor to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)pay undisputed indebtedness;
(fp) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the or in connection with goods or services which that are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(lq) the failure or delay by such Originator in providing to provide any Obligor with an invoice or other evidence of indebtedness;
(r) the failure or delay to make any filings under the Federal Assignment of Claims Act (or any other similar Applicable Law, including any state or municipal law or regulation) with respect to Receivables from Obligors that are U.S. Federal Governmental Entities (whether or not such filing is requested by the Administrative Agent);
(s) any tax or governmental fee or charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including without limitation Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or ownership of the Receivables generated by such Originator or any Related Rights connected with any such Receivables;
(t) any liability under Section 5.03 of the Receivables Financing Agreement; or
(mu) any action taken by the failure Administrative Agent as attorney-in-fact for such Originator pursuant to this Agreement or any other Transaction Document; provided that such indemnity shall not be available to any Purchase and Sale Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of a Purchase and Sale Indemnified Party or (y) constitute recourse with respect to a Pool Receivable by reason of the sale bankruptcy or insolvency, or the financial or credit condition or financial default, of the related Obligor. Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in this Article IX, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be deemed to be not so qualified. If for any reason the foregoing indemnification is unavailable to any Purchase and pledge Sale Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of such 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 such 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 such Originator under this Section shall be in addition to any liability which such 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 benefit of any Pool Receivable successors, assigns, heirs and personal representatives of such Originator and the Purchase and Sale Indemnified Parties. Any indemnification or contribution under this Section shall survive the Transaction Documents to comply with the notice requirements termination of FACA or any analogous State or local Lawsthis Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Owens & Minor Inc/Va/)
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, directors and directors assignees (each of the foregoing Persons being individually called a “Purchase and Sale RSA Indemnified Party”), forthwith on demand, from and against any and all damages, losses, claims, damages, liabilities and related costs and expenses, costs, losses including reasonable attorneys’ fees and liabilitiesdisbursements and all costs and expenses incurred, including Attorney Costs reasonable attorneys’ fees and disbursements, in connection with the enforcement of this provision (all of the foregoing being collectively called “Purchase and Sale Relevant Amounts”) arising out of or resulting from the failure of such Originator to perform its obligations under this Agreement, or arising out of the claims asserted against a Purchase and Sale RSA Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale RSA Indemnified Party, (b) due to the credit risk or financial inability to pay of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale RSA Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale RSA Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:
(a) the failure of any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Facility Document to have been true and correct as of the date made or deemed made;
(b) the failure by such 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 Sold Receivable generated by such Originator Receivable, the related Contract, or the Related Security, or the nonconformity of any Sold Receivable, the related Contract or the failure of any Sold Receivable or the related Contract to conform to Related Security with any such applicable law, tariff, rule or regulation;
(c) the failure by such Originator to vest and maintain vested in the Company a First Priority Interest first priority security interest in the Sold Receivables generated by such OriginatorOriginator and the Related Rights free and clear of any Adverse Claims, whether existing at the time such Receivable arose or at any time thereafter;
(d) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the applicable UCC or other applicable laws naming the Originator as “Debtor/Seller” with respect to any Receivables or Related Rights;
(e) any commingling of Seller Collections with other funds;
(ef) any dispute, claim, offset or defense (other than discharge in bankruptcy or insolvency of an the related Obligor or a dispute or claim based on the Obligor’s financial inability to pay) of an Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Laws.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses and liabilities, including Attorney Costs (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Company, proceeds thereof or therefrom; excluding, however, (i) Purchase and Sale Relevant Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (bii) 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 credit risk of an relevant Obligor and for which reimbursement would constitute recourse to (iii) any Originator for uncollectible Receivables net income or (c) franchise tax imposed on such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to by the jurisdiction under the laws of which such Originator for Purchase and Sale Indemnified Party is organized or any amounts otherwise specifically provided to be paid by such Originator hereunderpolitical subdivision thereof. Without limiting the foregoing indemnificationforegoing, but and subject to the limitations exclusions set forth in clauses (a), (b) and (c) of the previous preceding sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure transfer by such 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 such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, or any information or report delivered by such Originator pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect when made or deemed made;
(bc) the failure by such Originator to comply with any applicable law, rule or regulation of any Governmental Authority with respect to any Sold Receivable generated by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder or the related Contract, or the nonconformity of any Receivable generated by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder or the related Contract or the failure of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;
(cd) the failure by such Originator to vest and maintain vested in the Company a First Priority Interest an ownership interest in the Sold Receivables generated by such Originator;
(d) Originator sold, contributed or otherwise transferred or purported to be transferred hereunder free and clear of any commingling of Collections with other fundsAdverse Claim;
(e) the failure to file, or any delay in filing, by such 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 by such Originator sold or otherwise transferred or purported to be transferred hereunder, whether at the time of any purchase or contribution or at any subsequent time to the extent required hereunder;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy or similar insolvency proceeding of an ObligorObligor or other credit related reasons) of an the Obligor to the payment of any Sold Receivable or purported Receivable generated by such Originator sold or otherwise transferred or purported to be transferred hereunder (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractsservices;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the goods or in connection with services which that are the subject of any Sold Receivable generated by such 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 are required to be paid by reason of the purchase or ownership of the Receivables generated by such Originator or any Related Security connected with any such Receivables. If for any reason the related Contract;
(h) 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 each of the use of any Purchase Price Originators, severally and for itself alone, and Armstrong, jointly and severally with each Originator, shall contribute to the amount paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with such Purchase and Sale Indemnified Party to the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable maximum extent permitted under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsapplicable law.
Appears in 1 contract
Samples: Receivables Purchase Agreement and Purchase and Sale Agreement (Armstrong World Industries Inc)
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, and VWR, jointly and severally with each Originator, hereby agrees to indemnify and hold harmless harmless, on an after-tax basis, the Company and each of its Affiliates, agents, employees, officers, directors, employees and directors agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on within five (5) Business Days following demand, from and against any and all damages, losses, claims, damagesjudgments, liabilities, penalties, Taxes, reasonable costs and expenses, costs, losses and liabilities, (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Companyproceeds thereof or therefrom, excluding, excluding only Purchase and Sale Relevant Indemnified Amounts to the extent, extent (ai) such Purchase and Sale Relevant Amounts are determined by a final judgment of a court of competent jurisdiction by final holds that such Purchase and nonappealable judgment to have Sale Indemnified Amounts resulted from the frauda breach of law, gross breach of this Agreement, bad faith, negligence or willful misconduct of such the Purchase and Sale Indemnified PartyParty seeking indemnification, (bii) due to the credit risk of an the Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (ciii) such Purchase and Sale Relevant Indemnified Amounts are in respect include Taxes imposed or based on, or measured by, the gross or net income or receipts of Taxes other than such Purchase and Sale Indemnified Party by the jurisdiction under the laws of which such Purchase and Sale Indemnified Party is organized (or any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claimpolitical subdivision thereof); provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (ai), (bii) and (ciii) of the previous sentence, each Originator, severally for itself alone, and VWR, jointly and severally with each Originator, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure of any representation Receivable sold by such Originator included in the calculation of Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable, the failure of any information contained in any Information Package or Weekly Report furnished by such Originator, as applicable, to be true and correct, or the - 27 - failure of any other information provided by such Originator Company with respect to the Receivables or this Agreement to be true and correct;
(b) the transfer by such Originator of an interest in any Receivable to any Person other than the Company;
(c) the failure of any representation, warranty or statement made or deemed made by such Originator (or any of its officersemployee, employees officer or agentsagent or such Originator) under or in connection with this Agreement or any other Transaction Document Document, or any information or report delivered by such Originator pursuant hereto or thereto, to have been true and correct as of the date made or deemed mademade in all respects;
(bd) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder or the related Contract, or the nonconformity of any Receivable generated by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder or the related Contract or the failure of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;
(ce) the failure by such Originator to vest and maintain vested in the Company a First Priority Interest an ownership interest in the Sold Receivables generated by such OriginatorOriginator sold, contributed or otherwise transferred or purported to be transferred hereunder free and clear of any Adverse Claim (other than Permitted Liens);
(df) any commingling of Collections funds to which the Company, the Administrator, any Purchaser Agent or any Purchaser is entitled hereunder with any other funds;
(eg) the failure to have filed, or any delay in filing, by such 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 by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder, whether at the time of any purchase or contribution or at any subsequent time;
(h) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligor) of an the Obligor to the payment of any Sold Receivable or purported Receivable generated by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder (including, without limitation, a defense based on such Receivable Receivable’s or the related Contract 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 or lease of goods or the rendering of services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)Originator) with respect to such Receivable;
(fi) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreementparty;
(j) any investigation, litigation action taken by the Company or proceeding relating the Administrator or an attorney-in-fact for such Originator pursuant to this Agreement, Agreement or any of the other Transaction Documents or the ownership of the Sold Receivables generated by such OriginatorDocument;
(k) any environmental liability claim, products liability claim or personal injury or property damage suit or other similar or related claim or action taken by such Originator (of whatever sort, arising out of or in connection with any Receivable or any other suit, claim or action of its Affiliates) in whatever sort relating to any of the enforcement or collection of any Sold Receivable generated by such Originator;Transaction Documents; and
(l) any Tax or governmental fee or charge (other than any Tax excluded pursuant to clause (iii) in the failure proviso to the preceding sentence), all interest and penalties thereon or delay with respect thereto, and all out-of-pocket costs and expenses, including the Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or ownership of the Receivables generated by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State 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 local Lawsis insufficient to hold such Purchase and Sale Indemnified Party harmless, then each Originator, severally and for itself alone, and VWR, jointly and severally with each 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
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, hereby agrees to indemnify and hold harmless the Company Company, the Agent, the Lenders and each of its Affiliates, agents, employees, their respective officers, directors, members, employees and directors administrators (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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys' fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “Purchase and Sale Relevant Amounts”"PURCHASE AND SALE INDEMNIFIED AMOUNTS") awarded against or actually incurred by any of them to the extent arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this Agreement, any other Transaction Document or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Companyproceeds thereof or therefrom, excludingEXCLUDING, HOWEVER, (i) Purchase and Sale Relevant Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (bii) due to any indemnification which has the credit risk effect of an Obligor and recourse for which reimbursement would constitute recourse non-payment of the Receivables to any Originator for uncollectible Receivables or indemnitor (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts except as otherwise specifically provided to be paid under this SECTION 9.1) and (iii) any tax based upon or measured by such Originator hereundernet income or gross receipts. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentenceforegoing, each Originator, severally and for itself alone, shall indemnify indemnifies each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure transfer by such 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 such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, or any information or report delivered by such Originator pursuant hereto or thereto which shall have been true and correct as of the date false or incorrect in any material respect when made or deemed made;
(bc) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract, or the nonconformity of any Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;
(cd) the failure to vest and maintain vested in the Company an ownership interest in the Receivables generated by such Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Company, whether existing at the time of the purchase or contribution of such Receivables or at any time thereafter;
(e) the failure to vest file, or any delay in filing, financing statements or other similar instruments or documents under the Company a First Priority Interest in the Sold UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by such Originator, whether at the time of any purchase or contribution or at any subsequent time;
(d) any commingling of Collections with other funds;
(ef) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an the Obligor to the payment of any Sold Receivable or purported Receivable generated by such Originator (including, without limitation, a defense based on such Receivable Receivable's or the related Contract 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 sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractsservices;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the goods or in connection with services which that are the subject of any Sold Receivable generated by such 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, contribution or ownership of the Receivables generated by such Originator or any Related Security connected with any such Receivables. If for any reason the related Contract;
(h) 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 each of the use of any Originators, severally and for itself alone, shall contribute to the amount paid or payable by such Purchase Price paid and Sale Indemnified Party to such Originator;
the maximum extent permitted under applicable law. Notwithstanding anything herein to the contrary, (i) the failure foregoing indemnification is not intended to, and shall not, constitute a guarantee of such the collectibility or payment of any Receivable conveyed hereunder; and (ii) nothing in this SECTION 9.1 shall require any Originator to pay when due indemnify any TaxesIndemnified Party for any Receivable which is not collected, energy surcharges not paid or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any otherwise uncollectible on account of the other Transaction Documents insolvency, bankruptcy, creditworthiness or the ownership financial inability to pay of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) applicable Obligor. The agreements in this SECTION 9.1 shall survive the enforcement or collection of any Sold Receivable generated by such Originator;
(l) all Receivables, the failure or delay by such Originator in providing any Obligor with an invoice or other evidence termination of indebtedness; or
(m) this Agreement and the failure payment of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsall amounts payable hereunder.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses and liabilities, including Attorney Costs (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Company, proceeds thereof or therefrom; excluding, however, (i) Purchase and Sale Relevant Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (bii) 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 credit risk of an relevant Obligor and for which reimbursement would constitute recourse to (iii) any Originator for uncollectible Receivables net income or (c) franchise tax imposed on such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to by the jurisdiction under the laws of which such Originator for Purchase and Sale Indemnified Party is organized or any amounts otherwise specifically provided to be paid by such Originator hereunderpolitical subdivision thereof. Without limiting the foregoing indemnificationforegoing, but and subject to the limitations exclusions set forth in clauses (a), (b) and (c) of the previous preceding sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure transfer by such 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 such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, or any information or report delivered by such Originator pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect when made or deemed made;
(bc) the failure by such Originator to comply with any applicable law, rule or regulation of any Governmental Authority with respect to any Sold Receivable generated by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder or the related Contract, or the nonconformity of any Receivable generated by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder or the related Contract or the failure of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;
(cd) the failure by such Originator to vest and maintain vested in the Company a First Priority Interest an ownership interest in the Sold Receivables generated by such Originator;
(d) Originator sold, contributed or otherwise transferred or purported to be transferred hereunder free and clear of any commingling of Collections with other fundsAdverse Claim;
(e) the failure to file, or any delay in filing, by such 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 by such Originator sold or otherwise transferred or purported to be transferred hereunder, whether at the time of any purchase or contribution or at any subsequent time to the extent required hereunder;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy or similar insolvency proceeding of an ObligorObligor or other credit related reasons) of an the Obligor to the payment of any Sold Receivable or purported Receivable generated by such Originator sold or otherwise transferred or purported to be transferred hereunder (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractsservices;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the goods or in connection with services which that are the subject of any Sold Receivable generated by such 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 are required to be paid by reason of the purchase or ownership of the Receivables generated by such Originator or any Related Security connected with any such Receivables. If for any reason the related Contract;
(h) 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 each of the use of any Purchase Price Originators, severally and for itself alone, and Xxxxxxxxx, jointly and severally with each Originator, shall contribute to the amount paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with such Purchase and Sale Indemnified Party to the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable maximum extent permitted under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsapplicable law.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Armstrong World Industries Inc)
Indemnities by the Originators. Without limiting any other rights which the Company Buyer may have hereunder or under applicable law, each Originatorthe Originators hereby, severally jointly and for itself aloneseverally, hereby agrees agree to indemnify the Buyer and hold harmless the Company its assigns and each of its Affiliatestransferees (each, agents, employees, officers, and directors (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, costs, expenses, costs, losses and liabilities, liabilities (including Attorney Costs reasonable attorneys’ fees) (all of the foregoing being collectively called referred to as “Purchase and Sale Relevant Indemnified Amounts”) arising out of or resulting from this Agreement or the failure ownership of such Originator to perform its obligations under this Agreement, Transferred Receivables or arising out in respect of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Companyany Transferred Receivable or any Contract, excluding, Purchase and Sale Relevant Amounts to the extenthowever, (a) such Purchase and Sale Relevant Indemnified Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted the extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (b) recourse for Receivables that are uncollectible solely due to the credit risk of an Obligor and for which reimbursement would constitute recourse relevant Obligor’s unwillingness or financial inability to any Originator for uncollectible Receivables pay or (c) any income taxes or franchise taxes imposed on such Purchase and Sale Relevant Amounts are Indemnified Party by the jurisdiction under the laws of which such Indemnified Party is organized or any political subdivision thereof, arising out of or as a result of this Agreement or the ownership of Transferred Receivables or in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from Transferred Receivable or any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunderContract. Without limiting or being limited by the foregoing indemnification, (but subject to the limitations set forth in clauses (aaforementioned exclusions), (b) each Originators, jointly and (c) of the previous sentence, each Originator, severally for itself aloneseverally, shall indemnify pay on demand to each Purchase and Sale Indemnified Party for Purchase any and Sale Relevant 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 failure of any representation or warranty or statement made or deemed made by such an Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any Agreement, and the other Transaction Document to Documents that shall have been true and correct as of the date made or deemed incorrect in any material respect when made;
(b) the failure by such an Originator to comply with any applicable law, rule or regulation with respect to any Sold Transferred Receivable generated by such Originator or the related Contract Contract; or the failure of any Sold Transferred Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company Buyer absolute ownership of the Transferred Receivables that are, or that purport to be, the subject of a First Priority Interest purchase or contribution under this Agreement and the Related Security and Collections in the Sold Receivables generated by such Originatorrespect thereof free and clear of any Adverse Claim;
(d) the failure of an Originator to have filed, or any commingling 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 that purport to be, the subject of a purchase or contribution under this Agreement and the Related Security and Collections with other fundsin respect thereof, whether at the time of any purchase or contribution or at any subsequent time;
(e) 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 bankruptcy of an Obligorthe Obligor or any other credit related losses) of an the Obligor to the payment of any Sold Transferred Receivable generated by such Originator that is, or that purports to be, the subject of a purchase or contribution under this Agreement (including, without limitation, a defense based on such Transferred Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Transferred Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Transferred Receivable or any Contract related thereto (if to the extent such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliatesacting as Collection Agent);
(f) any failure of such Originator to perform its duties and or obligations in accordance with the provisions of this Agreement, hereof or to perform its duties or obligations under any Contract or any other Transaction Document related to which it is a party or under the ContractsTransferred Receivable;
(g) any products liability, environmental liability or other claim by an Obligor (including any claim for unpaid sales, excise or other third party taxes) arising out of the or in connection with goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use commingling of Collections of Transferred Receivables by an Originator or a designee of an Originator, as Collection Agent or otherwise, at any Purchase Price paid time with other funds of such Originator or an Affiliate of such Originator or the failure of Collections to such Originatorbe deposited into Controlled Accounts;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating related to this Agreement, any of the other Transaction Documents Agreement or the ownership of Transferred Receivables, the Sold Receivables generated by such OriginatorRelated 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 action taken by such failure of an Originator (or any of to comply with its Affiliates) covenants contained in the enforcement or collection of any Sold Receivable generated by such Originator;Section 5.01; or
(l) the failure any claim brought by any Person other than an Indemnified Party arising from any activity by an Originator or delay by such any Affiliate of an Originator in providing servicing, administering or collecting any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local LawsTransferred Receivable.
Appears in 1 contract
Samples: Purchase Agreement (United Rentals North America Inc)
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alonealone and Triumph, jointly and severally with each Originator, hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys’ fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Company, proceeds thereof or therefrom; excluding, however, (i) Purchase and Sale Relevant Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, Party and (bii) 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 credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunderrelevant Obligor. Without limiting the foregoing indemnificationforegoing, but and subject to the limitations exclusions set forth in clauses (a), (b) and (c) of the previous preceding sentence, each Originator, severally for itself alonealone and Triumph, jointly and severally with each Originator, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure transfer by such 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 such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, or any information or report delivered by Originator pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect when made or deemed made;
(b) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originator;
(d) any commingling of Collections with other funds;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligor) of an Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Laws.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, (a) Each Originator hereby agrees to indemnify and hold harmless the Company Buyer and each of its Affiliatesassigns (including any Secured Party under the Receivables Purchase Agreement), agents, employees, and their respective officers, directors, agents and directors employees (each of the foregoing Persons being individually called a each, an “Purchase and Sale Originator Indemnified Party”), forthwith on demand, from and against any loss, liability, expense, damage or injury suffered or sustained by reason of (i) such Originator’s failure to duly and all claims, damages, expenses, costs, losses and liabilities, including Attorney Costs (all of the foregoing being collectively called “Purchase and Sale Relevant Amounts”) arising out of or resulting from the failure of such Originator to punctually perform its obligations under this Agreement, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating pursuant to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:
(a) the failure of any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to have been true and correct as of the date made or deemed made;
(b) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originator;
(d) any commingling of Collections with other funds;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligor) of an Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party party, (ii) the breach by such Originator of any of its representations, warranties or under the Contracts;
covenants hereunder, (giii) any products liabilityviolation of Applicable Law by such Originator, environmental (iv) any Adverse Claim asserted by any creditor of such Originator against any of the Receivables or other claim by an Obligor Related Rights, (v) any obligations of the Buyer under Section 4.03 of the Receivables Purchase Agreement, or other third party (vi) any breach of the representation of Section 6.01(i) of the Receivables Purchase Agreement or the covenant of Section 7.01(cc) of the Receivables Purchase Agreement (all of the foregoing being collectively referred to as “Originator Indemnified Amounts”); excluding, however, (A) Originator Indemnified Amounts to the extent arising out of or resulting from the goods gross negligence or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure willful misconduct of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (Indemnified Party or any of its Affiliates) in Related Indemnified Parties or the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay breach by such Originator Indemnified Party or any of its Related Indemnified Parties of its obligations under any Transaction Document to which it is a party, in providing each case, as determined in a final non-appealable judgment by a court of competent jurisdiction and (B) any Obligor with an invoice Credit Risk Losses or other evidence losses arising under arrangements (synthetically or otherwise) to the extent such arrangements have the effect of indebtedness; orreplicating, in whole or in part, exposure to Credit Risk Losses.
(mb) In no event shall any Originator be liable hereunder to any Originator Indemnified Party or any other Person for any special, indirect, consequential or punitive damages, including but not limited to lost profits, even if the failure Canadian Servicer has been advised of the sale likelihood of such loss or damage and pledge regardless of the form of action.
(c) If for any Pool Receivable reason any indemnification to which an Originator Indemnified Party would otherwise be entitled pursuant to the terms of Section 9.1(a) is unavailable to such Originator Indemnified Party or insufficient to hold it harmless, then the applicable Originator shall contribute to the amount paid or payable by such Originator 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 such Originator and its Related Indemnified Parties on the one hand and such Originator Indemnified Party and its Affiliates 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 Originator Indemnified Party and its Related Indemnified Parties with respect to such loss, claim, damage or liability and any other relevant equitable considerations. The reimbursement, indemnity and contribution obligations of each Originator under this Section shall, to the Transaction Documents extent not duplicative, be in addition to comply with any liability which such Originator may otherwise have.
(d) All amounts owed by any Originator under this Section 9.1 shall be paid by such Originator by the notice requirements Monthly Settlement Date following the Fiscal Month during which such Originator has received the written demand of FACA the related Originator Indemnified Amounts from the applicable Originator Indemnified Party. Any indemnification or any analogous State or local Lawscontribution under this Section shall survive the termination of this Agreement.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable lawApplicable Law, each Originator, Originator jointly and severally and for itself alone, hereby agrees to indemnify and hold harmless harmless, on an after-tax basis, the Company (and its assigns, including the Administrative Agent) and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities, penalties, Taxes, reasonable costs and expenses, costs, losses and liabilities, (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Companyproceeds thereof or therefrom, excluding, only Purchase and Sale Relevant Indemnified Amounts to the extent, (ai) a final non-appealable judgment of a court of competent jurisdiction holds that such Purchase and Sale Relevant Indemnified Amounts are resulted from the gross negligence or willful misconduct by the Purchase and Sale Indemnified Party seeking indemnification, (ii) resulting from a claim brought by any Originator, the Servicer, or the Performance Guarantor against a Purchase and Sale Indemnified Party for breach in bad faith of such Purchase and Sale Indemnified Party’s obligations hereunder or under any other Transaction Document, if such party has obtained a final and nonappealable judgment in its favor on such claim against the Purchase and Sale Indemnified Party as determined by a court of competent jurisdiction by final and nonappealable judgment (iii) due to have resulted from Pool Receivables that are uncollectible solely on account of the fraudinsolvency, gross negligence bankruptcy, lack of creditworthiness or willful misconduct other financial inability to pay of such Purchase and Sale Indemnified Party, (b) the related Obligor or otherwise due to the credit risk of an the Obligor and for which reimbursement would constitute recourse to any Originator Originator, for uncollectible Receivables or (civ) such Purchase and Sale Relevant Indemnified Amounts are in respect include Taxes imposed or based on, or measured by, the gross or net income or receipts of Taxes other than such Purchase and Sale Indemnified Party by the jurisdiction under the laws of which such Purchase and Sale Indemnified Party is organized (or any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claimpolitical subdivision thereof); provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (ai), (bii) and (ciii) of the previous sentence, each Originator, Originator jointly and severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure of any representation representation, warranty or warranty statement made or deemed made by such Originator (or any officer of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any of the other Transaction Document to Documents, or any information or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed made;
(b) the failure by such Originator to comply with 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 Sold Pool Receivable generated by such Originator or the related Contract Contract; or the failure of any Sold Pool Receivable or the related Contract to conform to any such applicable law, rule or regulationApplicable Law;
(c) the failure of any Receivable sold or contributed by such Originator to vest included in the Company a First Priority Interest in the Sold calculation of Net Receivables generated by Pool Balance as an Eligible Receivable to be an Eligible Receivable at such Originatortime;
(d) the transfer by such Originator of any commingling interest in any Pool Receivable or Related Right other than the transfer of Collections with other fundsany 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 Rights) originated by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(f) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable or the Related Rights;
(g) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable originated by such Originator);
(h) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an the Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, 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 services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Pool Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor resulting from the sale of goods or other third party arising out the rendering of services related to such Pool Receivable or the furnishing or failure to furnish any such goods or services which are or other similar claim or defense not arising from the subject financial inability of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid Obligor to such Originatorpay undisputed indebtedness;
(i) the failure commingling of such Originator to pay when due Collections of Pool Receivables at any Taxes, energy surcharges or time with other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreementfunds;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing to provide any Obligor with an invoice or other evidence of indebtedness;
(k) any failure of such Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables, or of such Originator to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(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 claim brought by any Person other than a Purchase and Sale Indemnified Party arising from any activity by such Originator or any Affiliate of such Originator in servicing, administering or collecting any Pool Receivable; or
(mn) the failure of by the sale Originator to pay when due any taxes, including, without limitation, material sales, excise or personal property taxes. If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and pledge of any Pool Receivable Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then each Originator jointly and severally with each other Originator, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsapplicable law.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawApplicable Law, each OriginatorOriginator and CMA, severally jointly and for itself aloneseverally, hereby agrees to indemnify and hold harmless the Company and Buyer, each of its Affiliatesofficers, directors, employees, agents, employeesemployees and respective assigns, officers, the Administrative Agent and directors each Lender (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, from and against any and all damages, claims, damageslosses, expensesjudgments, costs, losses and liabilities, penalties and related costs and expenses (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation or warranty made or deemed made by such Originator (or any employee, officer or agent of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any of the other Transaction Document to Documents, or any information or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure transfer by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold interest in any Pool Receivable or Related Right other than the related Contract transfer of any Pool Receivable and Related Rights to conform the Buyer pursuant to any such applicable law, rule or regulationthis Agreement and the grant of a security interest to the Buyer pursuant to this Agreement;
(c) the failure by such Originator to vest in comply with the Company a First Priority Interest in terms of any Transaction Document or with any Applicable Law with respect to any Pool Receivable or the Sold Receivables generated by related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such OriginatorApplicable Law;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable originated by such Originator);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable in the Receivables Pool (including a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the property, products or services giving rise to such Receivable or the furnishing or failure to furnish such property, products or services;
(h) any failure of such Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(i) any products liability, environmental or other claim arising out of or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Receivable;
(j) the commingling of Collections of Pool Receivables at any time with other funds;
(ek) 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 claim brought by any Person other than a Purchase and Sale Indemnified Party arising from any activity by such Originator or any Affiliate of such Originator in servicing, administering or collecting any Pool Receivable;
(n) the failure by such Originator to pay when due any Taxes, including, without limitation, sales, excise or personal property taxes;
(o) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to any such Sold Pool Receivable or the furnishing of or failure to furnish any such goods or services or relating other similar claim or defense not arising from the financial inability of any Obligor to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)pay undisputed indebtedness;
(fp) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the or in connection with goods or services which that are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(lq) the failure or delay by such Originator in providing to provide any Obligor with an invoice or other evidence of indebtedness;
(r) the failure or delay to make any filings under the Federal Assignment of Claims Act (or any other similar Applicable Law, including any state or municipal law or regulation) with respect to Receivables from Obligors that are U.S. Federal Governmental Entities (whether or not such filing is requested by the Administrative Agent);
(s) any tax or governmental fee or charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including without limitation Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or ownership of the Receivables generated by such Originator or any Related Rights connected with any such Receivables;
(t) any liability under Section 5.03 of the Receivables Financing Agreement; or
(mu) any action taken by the failure Administrative Agent as attorney-in-fact for such Originator pursuant to this Agreement or any other Transaction Document; provided that such indemnity shall not be available to any Purchase and Sale Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of a Purchase and Sale Indemnified Party or (y) constitute recourse with respect to a Pool Receivable by reason of the sale bankruptcy or insolvency, or the financial or credit condition or financial default, of the related Obligor. Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in this Article IX, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be deemed to be not so qualified. If for any reason the foregoing indemnification is unavailable to any Purchase and pledge Sale Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of such 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 such 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 such Originator under this Section shall be in addition to any liability which such 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 benefit of any Pool Receivable successors, assigns, heirs and personal representatives of such Originator and the Purchase and Sale Indemnified Parties. Any indemnification or contribution under this Section shall survive the Transaction Documents to comply with the notice requirements termination of FACA or any analogous State or local Lawsthis Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Compass Minerals International Inc)
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alonealone and FleetCor, jointly and severally with each Originator, hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys’ fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Company, proceeds thereof or therefrom; excluding, however, (i) Purchase and Sale Relevant Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (bii) 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 credit risk of an relevant Obligor and for which reimbursement would constitute recourse to (iii) any Originator for uncollectible Receivables net income or (c) franchise tax imposed on such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to by the jurisdiction under the laws of which such Originator for Purchase and Sale Indemnified Party is organized or any amounts otherwise specifically provided to be paid by such Originator hereunderpolitical subdivision thereof. Without limiting the foregoing indemnificationforegoing, but and subject to the limitations exclusions set forth in clauses (a), (b) and (c) of the previous preceding sentence, each Originator, severally for itself alonealone and FleetCor, jointly and severally with each Originator, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure transfer by such 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 such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, or any information or report delivered by Originator pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect when made or deemed made;
(b) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originator;
(d) any commingling of Collections with other funds;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligor) of an Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Fleetcor Technologies Inc)
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, and Swift, jointly and severally with each Originator, hereby agrees to indemnify and hold harmless harmless, on an after-tax basis, the Company and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities, penalties, Taxes, costs and expenses, costs, losses and liabilities, (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Companyproceeds thereof or therefrom, excluding, only Purchase and Sale Relevant Indemnified Amounts to the extent, (ai) such Purchase and Sale Relevant Amounts are determined by a final judgment of a court of competent jurisdiction by final holds that such Purchase and nonappealable judgment to have Sale Indemnified Amounts resulted from the fraud, gross negligence or willful misconduct of such the Purchase and Sale Indemnified PartyParty seeking indemnification, (bii) due to the credit risk of an the Obligor and for which reimbursement would constitute recourse to any Originator Originator, for uncollectible Receivables or (ciii) such Purchase and Sale Relevant Indemnified Amounts are in respect include Taxes imposed or based on, or measured by, the gross or net income or receipts of Taxes other than such Purchase and Sale Indemnified Party by the jurisdiction under the laws of which such Purchase and Sale Indemnified Party is organized (or any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claimpolitical subdivision thereof); provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (ai), (bii) and (ciii) of the previous sentence, each Originator, severally for itself alone, and Swift, jointly and severally with each Originator, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure of any representation Receivable included in the calculation of Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable, the failure of any information contained in any Information Package to be true and correct, or the failure of any other information provided to the Company with respect to the Receivables or this Agreement to be true and correct;
(b) the transfer by such Originator of an interest in any Receivable to any Person other than the Company;
(c) the failure of any representation, warranty or statement made or deemed made by such Originator (or any of its officersemployee, employees officer or agentsagent or such Originator) under or in connection with this Agreement or any other Transaction Document Document, or any information or report delivered by such Originator pursuant hereto or thereto, to have been true and correct as of the date made or deemed mademade in all respects;
(bd) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder or the related Contract, or the nonconformity of any Receivable generated by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder or the related Contract or the failure of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;
(ce) the failure by such Originator to vest and maintain vested in the Company a First Priority Interest an ownership interest in the Sold Receivables generated by such OriginatorOriginator sold, contributed or otherwise transferred or purported to be transferred hereunder free and clear of any Adverse Claim;
(df) any commingling of Collections funds to which the Company, the Administrator, any Purchaser Agent or any Purchaser is entitled hereunder with any other funds;
(eg) the failure to have filed, or any delay in filing, by such 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 by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder, whether at the time of any purchase or contribution or at any subsequent time;
(h) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligor) of an the Obligor to the payment of any Sold Receivable or purported Receivable generated by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder (including, without limitation, a defense based on such Receivable Receivable’s or the related Contract 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 or lease of goods or the rendering of services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)Originator) with respect to such Receivable;
(fi) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreementparty;
(j) any investigation, litigation action taken by the Company or proceeding relating the Administrator or an attorney-in-fact for such Originator pursuant to this Agreement, Agreement or any of the other Transaction Documents or the ownership of the Sold Receivables generated by such OriginatorDocument;
(k) any environmental liability claim, products liability claim or personal injury or property damage suit or other similar or related claim or action taken by such Originator (of whatever sort, arising out of or in connection with any Receivable or any other suit, claim or action of its Affiliates) in whatever sort relating to any of the enforcement or collection of any Sold Receivable generated by such Originator;Transaction Documents; and
(l) any Tax or governmental fee or charge (other than any Tax excluded pursuant to clause (iii) in the failure proviso to the preceding sentence), all interest and penalties thereon or delay with respect thereto, and all out-of-pocket costs and expenses, including the Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or ownership of the Receivables generated by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State 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 local Lawsis insufficient to hold such Purchase and Sale Indemnified Party harmless, then each Originator, severally and for itself alone, and Swift, jointly and severally with each 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 (SWIFT TRANSPORTATION Co)
Indemnities by the Originators. Without limiting any other rights which the Company Buyer may have hereunder or under applicable law, each Originator, severally and for itself alone, of the Originators hereby agrees to indemnify the Buyer and hold harmless the Company its assignees (including each Agent and each of its Affiliates, agents, employees, Purchaser) and their respective officers, directors, agents and directors employees (each of the foregoing Persons being individually called a each, an “Purchase and Sale Indemnified Party”), forthwith on demand, ) from and against any and all damages, losses, claims, damagestaxes, expensesliabilities, costs, losses expenses and liabilitiesfor all other amounts payable, including Attorney Costs reasonable attorneys’ fees (which attorneys may be employees of the Buyer, such Agent or such Purchaser) and disbursements (all of the foregoing being collectively called referred to as “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreement, or arising out any of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromfollowing:
(ai) the failure of any representation or warranty made by any Originator or deemed made by such Originator Sub-Servicer (or any officers of its officers, employees any Originator or agentsSub-Servicer) under or in connection with this Agreement Agreement, any other Transaction Document, any Monthly Report or any other Transaction Document to information or report delivered by any Originator or Sub-Servicer pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect when made or deemed made;
(bii) the failure by such any Originator or Sub-Servicer to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or Contract related thereto, or the related Contract or the failure nonconformity of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;
(ciii) any failure of any Originator or Sub-Servicer to perform its duties or obligations in accordance with the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originatorprovisions of this Agreement or any other Transaction Document;
(div) any commingling products liability or similar claim arising out of Collections or in connection with other fundsmerchandise, insurance or services which are the subject of any Contract;
(ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an any Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)the underlying freight shipping services;
(fvi) the commingling of Collections of Receivables at any failure of such Originator to perform its duties and obligations in accordance time with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractsfunds;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(jvii) any investigation, litigation or proceeding relating related to or arising from this AgreementAgreement or any other Transaction Document, any the transactions contemplated hereby or thereby, the use of the other Transaction Documents or proceeds of a Purchase, the ownership of the Sold Receivables generated by such Originatoror any other investigation, litigation or proceeding relating to any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby or thereby;
(kviii) any action taken by such Originator (or inability to litigate any of its Affiliates) claim against any Obligor in the enforcement or collection respect of any Sold Receivable generated by as a result of such OriginatorObligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(lix) the failure or delay by such Originator in providing sale to the Buyer of any Obligor with Receivable other than an invoice or other evidence of indebtednessEligible Receivable; or
(mx) 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, the Related Security and the Collections, 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 sale 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 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 pledge (b) the characterization of any Pool Receivable the transactions under the Transaction Documents to comply with Purchase Agreement as creating indebtedness of the notice requirements Buyer for purposes of FACA or any analogous State or local Laws.taxation;
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which the Company Buyer may have hereunder or under applicable law, each Originator, severally and for itself alone, jointly and severally with each other Originator, hereby agrees to indemnify and hold harmless the Company Buyer and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities, penalties and related costs and expenses, costs, losses and liabilities, including reasonable Attorney Costs (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation or warranty made or deemed made by such Originator (or any employee, officer or agent of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any other Transaction Document to have been true and correct as of the date made or deemed madeDocument;
(b) the failure transfer by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold interest in any Pool Receivable or other than the related Contract transfer of any Pool Receivable and Related Security to conform the Buyer pursuant to any such applicable law, rule or regulationthis Agreement and the grant of a security interest to the Buyer pursuant to this Agreement;
(c) the failure by of such Originator to vest in comply with the Company a First Priority Interest in terms of any Transaction Document or any applicable law (including with respect to any Receivable or Related Security), or the Sold Receivables generated by nonconformity of any Pool Receivable or Related Security with any such Originatorlaw;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any commingling bankruptcy trustee or similar Person), in either case, free and clear of Collections with other fundsany Adverse Claim;
(e) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the chemicals or other property, products or services that are the subject of any Pool Receivable originated by such Originator); and
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an the Obligor to the payment of any Sold Receivable generated by such Originator in the Receivables Pool (including, without limitation, including a defense based on such Receivable Receivable’s or the related Contract 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 goods the petrochemicals or other property, products or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods chemicals or services other property, products or relating services; provided that such indemnity shall not be available to collection activities any Purchase and Sale Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the bad faith, gross negligence or willful misconduct of a Purchase and Sale Indemnified Party, (y) result from a claim brought by such Originator against the Purchase and Sale Indemnified Party for breach of such party’s obligations under this Agreement or under any other Transaction Document, if such Originator has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction or (z) constitute recourse with respect to a Pool Receivable by reason of the bankruptcy or insolvency, or the financial or credit condition or financial default, of the related Obligor. 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 Sold Receivable Purchase and Sale Indemnified Party harmless, then each of the Originators, severally and for itself, and Celanese International, jointly and severally with each Originator, shall contribute to the amount paid or any Contract related thereto (if such collection activities were performed payable by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator Purchase and Sale Indemnified Party to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or maximum extent permitted under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsapplicable law.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which the Company Buyer may have hereunder or under applicable law, each Originatorthe Originators hereby, severally jointly and for itself aloneseverally, hereby agrees agree to indemnify the Buyer and hold harmless the Company its assigns and each of its Affiliatestransferees (each, agents, employees, officers, and directors (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, costs, expenses, costs, losses and liabilities, liabilities (including Attorney Costs reasonable attorneys’ fees) (all of the foregoing being collectively called referred to as “Purchase and Sale Relevant Indemnified Amounts”) arising out of or resulting from this Agreement or the failure ownership of such Originator to perform its obligations under this Agreement, Receivables or arising out in respect of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Companyany Receivable or any Contract, excluding, Purchase and Sale Relevant Amounts to the extenthowever, (a) such Purchase and Sale Relevant Indemnified Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted the extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute related recourse to any Originator for uncollectible Receivables or (c) any income taxes or franchise taxes imposed on such Purchase and Sale Relevant Amounts are Indemnified Party by the jurisdiction under the laws of which such Indemnified Party is organized or any political subdivision thereof, arising out of or as a result of this Agreement or the ownership of Receivables or in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from Receivable or any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunderContract. Without limiting or being limited by the foregoing indemnification, (but subject to the limitations set forth in clauses (aaforementioned exclusions), (b) the Originators, jointly and (c) of the previous sentence, each Originator, severally for itself aloneseverally, shall indemnify pay on demand to each Purchase and Sale Indemnified Party for Purchase any and Sale Relevant 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 failure of any representation or warranty or statement made or deemed made by such an Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Agreement, which shall have been true and correct as of the date made or deemed incorrect in any material respect when made;
(b) the failure by such an Originator to comply with any applicable law, rule or regulation with respect to any Sold Transferred Receivable generated by such Originator or the related Contract Contract; or the failure of any Sold Transferred Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company Buyer absolute ownership of the Receivables that are, or that purport to be, the subject of a First Priority Interest purchase or contribution under this Agreement and the Related Security and Collections in the Sold Receivables generated by such Originatorrespect thereof free and clear of any Adverse Claim;
(d) the failure of an Originator to have filed, or any commingling 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 that purport to be, the subject of a purchase or contribution under this Agreement and the Related Security and Collections with other fundsin respect thereof, whether at the time of any purchase or contribution or at any subsequent time;
(e) 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 bankruptcy of an Obligorthe Obligor or any other credit related losses) of an the Obligor to the payment of any Sold Receivable generated by such Originator that is, or that purports to be, the subject of a purchase or contribution under this Agreement (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 goods the merchandise or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods merchandise or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if to the extent such collection activities were performed by such an Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliatesacting as Collection Agent);
(f) any failure of such an Originator to perform its duties and or obligations in accordance with the provisions of this Agreement, hereof or to perform its duties or obligations under any Contract or any other Transaction Document related to which it is a party or under the ContractsTransferred Receivable;
(g) any products liability, environmental liability or other claim by an Obligor (including any claim for unpaid sales, excise or other third party taxes) arising out of the goods or in connection with merchandise, insurance or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use commingling of Collections of Transferred Receivables by an Originator or a designee of an Originator, as Collection Agent or otherwise, at any Purchase Price paid time with other funds of such Originator or an Affiliate of such Originator or the failure of Collections to such Originatorbe deposited into Lock-Box Accounts;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating related to this Agreement, any of the other Transaction Documents Agreement or the ownership of Receivables, the Sold Receivables generated by such OriginatorRelated Security, or Collections with respect thereto or in respect of any 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 action taken by such failure of an Originator (or any of to comply with its Affiliates) covenants contained in the enforcement or collection of any Sold Receivable generated by such Originator;Section 5.01; or
(l) the failure any claim brought by any Person other than an Indemnified Party arising from any activity by an Originator or delay by such any Affiliate of an Originator in providing servicing, administering or collecting any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local LawsTransferred Receivable.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (United Rentals North America Inc)
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, and VWR, jointly and severally with each Originator, hereby agrees to indemnify and hold harmless harmless, on an after-tax basis, the Company and each of its Affiliates, agents, employees, officers, directors, employees and directors agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on within five (5) Business Days following demand, from and against any and all damages, losses, claims, damagesjudgments, liabilities, penalties, Taxes, reasonable costs and expenses, costs, losses and liabilities, (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Companyproceeds thereof or therefrom, excluding, excluding only Purchase and Sale Relevant Indemnified Amounts to the extent, extent (ai) such Purchase and Sale Relevant Amounts are determined by a final judgment of a court of competent jurisdiction by final holds that such Purchase and nonappealable judgment to have Sale Indemnified Amounts resulted from the frauda breach of law, gross breach of this Agreement, bad faith, negligence or willful misconduct of such the Purchase and Sale Indemnified PartyParty seeking indemnification, (bii) due to the credit risk of an the Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (ciii) such Purchase and Sale Relevant Indemnified Amounts are in respect include Taxes imposed or based on, or measured by, the gross or net income or receipts of Taxes other than such Purchase and Sale Indemnified Party by the jurisdiction under the laws of which such Purchase and Sale Indemnified Party is organized (or any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claimpolitical subdivision thereof); provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (ai), (bii) and (ciii) of the previous sentence, each Originator, severally for itself alone, and VWR, jointly and severally with each Originator, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure of any representation Receivable sold by such Originator included in the calculation of Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable, the failure of any information contained in any Information Package or Weekly Report furnished by such Originator, as applicable, to be true and correct, or the failure of any other information provided by such Originator Company with respect to the Receivables or this Agreement to be true and correct;
(b) the transfer by such Originator of an interest in any Receivable to any Person other than the Company;
(c) the failure of any representation, warranty or statement made or deemed made by such Originator (or any of its officersemployee, employees officer or agentsagent or such Originator) under or in connection with this Agreement or any other Transaction Document Document, or any information or report delivered by such Originator pursuant hereto or thereto, to have been true and correct as of the date made or deemed mademade in all respects;
(bd) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator sold or otherwise transferred or purported to be transferred hereunder or the related Contract, or the nonconformity of any Receivable generated by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder or the related Contract or the failure of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;
(ce) the failure by such Originator to vest and maintain vested in the Company a First Priority Interest an ownership interest in the Sold Receivables generated by such OriginatorOriginator sold or otherwise transferred or purported to be transferred hereunder free and clear of any Adverse Claim (other than Permitted Liens);
(df) any commingling of Collections funds to which the Company, the Administrator, any Purchaser Agent or any Purchaser is entitled hereunder with any other funds;
(eg) the failure to have filed, or any delay in filing, by such 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 by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder, whether at the time of any purchase or contribution or at any subsequent time;
(h) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligor) of an the Obligor to the payment of any Sold Receivable or purported Receivable generated by such Originator sold, contributed or otherwise transferred or purported to be transferred hereunder (including, without limitation, a defense based on such Receivable Receivable’s or the related Contract 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 or lease of goods or the rendering of services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)Originator) with respect to such Receivable;
(fi) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreementparty;
(j) any investigation, litigation action taken by the Company or proceeding relating the Administrator or an attorney-in-fact for such Originator pursuant to this Agreement, Agreement or any of the other Transaction Documents or the ownership of the Sold Receivables generated by such OriginatorDocument;
(k) any environmental liability claim, products liability claim or personal injury or property damage suit or other similar or related claim or action taken by such Originator (of whatever sort, arising out of or in connection with any Receivable or any other suit, claim or action of its Affiliates) in whatever sort relating to any of the enforcement or collection of any Sold Receivable generated by such Originator;Transaction Documents; and
(l) any Tax or governmental fee or charge (other than any Tax excluded pursuant to clause (iii) in the failure proviso to the preceding sentence), all interest and penalties thereon or delay with respect thereto, and all out-of-pocket costs and expenses, including the Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or ownership of the Receivables generated by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State 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 local Lawsis insufficient to hold such Purchase and Sale Indemnified Party harmless, then each Originator, severally and for itself alone, and VWR, jointly and severally with each 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
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, alone hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys' fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “"Purchase and Sale Relevant Indemnified Amounts”") awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Companyproceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Relevant Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (bii) due to any indemnification which has the credit risk effect of an Obligor and recourse for which reimbursement would constitute recourse collectibility or performance of the Receivables to any Originator for uncollectible Receivables or indemnitor (cexcept as otherwise specifically provided under this Section 9.1), (iii) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party Amounts to such Originator for the extent resulting from any amounts otherwise specifically provided act or failure to be paid act by such Originator hereunderan Obligor in violation of the applicable Contract and (iv) any tax based upon or measured by net income property, or gross receipts. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentenceforegoing, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure transfer by such 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 such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, or any information or report delivered by Originator pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect in any material respect when made or deemed made;
(b) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originator;
(d) any commingling of Collections with other funds;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligor) of an Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Kulicke & Soffa Industries Inc)
Indemnities by the Originators. Without limiting any other rights which the Company Buyer may have hereunder or under applicable lawApplicable Law, each Originator, severally and for itself alone, Originator hereby agrees to indemnify and hold harmless harmless, on an after-tax basis, the Company Buyer (and its assigns, including the Borrower and the Administrative Agent) and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, expenses, costs, losses and liabilities, penalties, Taxes, reasonable costs and expenses (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Companyproceeds thereof or therefrom, excluding, only Purchase and Sale Relevant Indemnified Amounts to the extent, (ai) such Purchase and Sale Relevant Amounts are determined by a final non-appealable judgment of a court of competent jurisdiction by final holds that such Purchase and nonappealable judgment to have Sale Indemnified Amounts resulted from the fraud, gross negligence or willful misconduct by the Purchase and Sale Indemnified Party seeking indemnification, (ii) resulting from a claim brought by any Originator or the Servicer against a Purchase and Sale Indemnified Party for breach in bad faith of such Purchase and Sale Indemnified Party’s obligations hereunder or under any other Transaction Document, if such party has obtained a final and nonappealable judgment in its favor on such claim against the Purchase and Sale Indemnified Party as determined by a court of competent jurisdiction, (biii) due to Pool Receivables that are uncollectible or delayed in collection solely on account of the insolvency, bankruptcy, lack of creditworthiness or other financial inability to pay of the related Obligor or otherwise due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables the Obligor, or (civ) such Purchase and Sale Relevant Indemnified Amounts are in respect include Taxes imposed or based on, or measured by, the gross or net income or receipts of Taxes other than such Purchase and Sale Indemnified Party by the jurisdiction under the laws of which such Purchase and Sale Indemnified Party is organized (or any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claimpolitical subdivision thereof); provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (ai), (bii) and (ciii) of the previous sentence, each Originator, severally for itself alone, Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure of any representation representation, warranty or warranty statement made or deemed made by such Originator (or any officer of its officers, employees or agentssuch Originator) under or in connection with this Agreement Agreement, any of the other Transaction Documents or any other Transaction Document to information or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed made;
(b) the failure by such Originator to comply with 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 Sold Pool Receivable generated by such Originator or the related Contract Contract; or the failure of any Sold Pool Receivable or the related Contract to conform to any such applicable law, rule or regulationApplicable Law;
(c) the failure of any Receivable sold by such Originator to vest and included in the Company a First Priority Interest in calculation of Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable as of the Sold Receivables generated by date of such Originatorsale;
(d) the transfer by such Originator of any commingling interest in any Pool Receivable or Related Right other than the transfer of Collections with other fundsany Pool Receivable and Related Rights to the Buyer pursuant to this Agreement and the grant of a security interest to the Buyer 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 Rights) originated by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(f) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable or the Related Rights;
(g) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable originated by such Originator);
(h) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an the Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, 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 services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Pool Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor resulting from the sale of goods or other third party arising out the rendering of services related to such Pool Receivable or the furnishing or failure to furnish any such goods or services which are or other similar claim or defense not arising from the subject financial inability of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid Obligor to such Originatorpay undisputed indebtedness;
(i) the failure commingling of such Originator to pay when due Collections of Pool Receivables at any Taxes, energy surcharges or time with other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreementfunds;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing to provide any Obligor with an invoice or other evidence of indebtedness;
(k) any failure of such Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables, or of such Originator to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(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 claim brought by any Person other than a Purchase and Sale Indemnified Party arising from any activity by such Originator or any Affiliate of such Originator in servicing, administering or collecting any Pool Receivable; or
(mn) the failure of by an Originator to pay when due any taxes, including, without limitation, material sales, excise or personal property taxes. If for any reason the sale indemnification provided above in this Section 9.1 is unavailable to a Purchase and pledge of any Pool Receivable Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then each Originator shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsapplicable law.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Exact Sciences Corp)
Indemnities by the Originators. Without limiting any other rights which that Buyer or any of its Stockholders, any of its assignees (including the Company Secured Parties and the Administrative Agent), or any of their respective officers, directors, employees, attorneys, agents or representatives and transferees, successors and assigns (each, a “Buyer Indemnified Person”) 745039911 21696099 25 may have hereunder or under applicable law, each Originator, severally and for itself alone, Originator hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, and directors (each of the foregoing Persons being individually called a “Purchase and Sale Buyer Indemnified Party”), forthwith on demand, Person from and against any and all claims, damages, expenses, costs, losses and liabilities, including Attorney Costs (all of the foregoing being collectively called “Purchase and Sale Relevant Amounts”) arising out of Indemnified Amounts that may be claimed or resulting from the failure of asserted against or incurred by any such Originator to perform its obligations under this Agreement, Buyer Indemnified Person in connection with or arising out of the claims asserted against transactions contemplated under this Agreement or under any other Related Document and any actions or failures to act in connection therewith, including any and all associated reasonable legal costs and expenses, or in respect of any Transferred Receivable or any Contract therefor or the use by such Originator of the Sale Price therefor; provided that no Originator shall be liable for any indemnification to a Purchase and Sale Buyer Indemnified Party relating Person to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant extent that any such Indemnified Amounts to the extent, (a) result from such Purchase and Sale Relevant Amounts are Buyer Indemnified Person’s gross negligence or willful misconduct, as finally determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraudjurisdiction, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) constitute recourse for uncollectible or uncollected Transferred Receivables due to the credit risk failure (without cause or justification) or inability on the part of an the related Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables perform its obligations thereunder or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse occurrence of any Purchase and Sale Indemnified Party event of bankruptcy with respect to such Originator for any amounts otherwise specifically provided Obligor. Subject to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), ) and (b) and (c) of the previous proviso in the immediately preceding sentence, but otherwise without limiting the generality of the foregoing, each Originator, severally for itself alone, Originator shall indemnify pay on demand to each Purchase Buyer Indemnified Person any and Sale all Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:
(ai) the failure of reliance on any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Related Document (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or on any other information delivered by such Originator pursuant hereto or thereto that shall have been true and correct as of the date incorrect when made or deemed mademade or delivered;
(bii) the failure by such Originator to comply with any term, provision or covenant contained in this Agreement, any other Related Document or any agreement executed in connection herewith or therewith (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality), any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Transferred Receivable or the related Contract to conform to therefor, or the nonconformity of any Transferred Receivable or the Contract therefor with any such applicable law, rule or regulation;
(ciii) (x) the failure by such Originator to vest and maintain vested in Buyer, or to Transfer to Buyer, valid and properly perfected title to and sole record and beneficial ownership of the Company a First Priority Interest Receivables that constitute Transferred Receivables, together with all Collections in the Sold Receivables generated by such Originatorrespect thereof, free and clear of any Adverse Claim or (y) any Specified Filing;
(d) any commingling of Collections with other funds;
(eiv) any dispute, claim, offset or defense of any Obligor (other than its discharge in bankruptcy of an Obligorbankruptcy) of an Obligor to the payment of any Sold Receivable generated by such Originator that is the subject of a Transfer hereunder (including, without limitation, including (x) a defense based on such Receivable or the related Contract therefor not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its termsterms (other than as a result of a discharge in bankruptcy), or any other claim resulting from the sale of goods the merchandise or services related giving rise to any such Sold Receivable or the furnishing of or failure to furnish such goods merchandise or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by any Originator or any Affiliate thereof acting as 745039911 21696099 26 the Servicer or a Sub-Servicer) and (y) resulting from or in connection with any Dilution Factors);
(v) any products liability claim or other claim arising out of or in connection with merchandise, insurance or services that is the subject of any Contract;
(vi) the commingling of Collections with respect to Transferred Receivables by any Originator at any time with its other funds or the funds of any other Person;
(vii) any failure by such Originator to cause the filing of, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or any other applicable laws with respect to any Transferred Receivable that is the subject of a Transfer hereunder to the extent that such filing is necessary to maintain the perfection and priority of Buyer in such Receivable, whether at the time of any such Transfer or at any subsequent time;
(viii) any investigation, Litigation or proceeding related to this Agreement or the use of the Sale Price obtained in connection with any Sale or the ownership of Transferred Receivables or Collections with respect thereto or in respect of any Transferred Receivable or Contract therefor;
(ix) any claim brought by any Person other than a Buyer Indemnified Person arising from any activity by such Originator or any of its Affiliates in servicing, administering or by collecting any agent or independent contractor retained by such Originator or its Affiliates)Transferred Receivables;
(fx) any (I) failure of such Originator (x) any Collection Account Bank to perform its duties and obligations in accordance comply with the provisions terms of this the applicable Collection Account Agreement, (y) any Contract Concentration Account Bank to comply with the terms of the applicable Concentration Account Agreement or (z) the Borrower Account Bank to comply with the terms of the Borrower Account Agreement or (II) dispute, claim, offset or defense of (x) any other Transaction Document to which it is a party or Collection Account Bank arising under the Contracts;
terms of the applicable Collection Account Agreement, (gy) any products liability, environmental or other claim by an Obligor or other third party Concentration Account Bank arising out under the terms of the goods applicable Concentration Account or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(hz) the use of any Purchase Price paid to such Originator;
(i) Borrower Account Bank arising under the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any terms of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtednessBorrower Account Agreement; or
(mxi) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents withholding, deduction or Charge imposed upon any payments with respect to comply with the notice requirements of FACA any Transferred Receivable, any Borrower Assigned Agreement or any analogous State or local Lawsother Borrower Collateral.
Appears in 1 contract
Samples: Receivables Sale and Servicing Agreement (Td Synnex Corp)
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, and directors (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, expenses, costs, losses and liabilities, including Attorney Costs (all of the foregoing being collectively called “Purchase and Sale Relevant Amounts”) arising out of or resulting from the failure of such Originator to perform its obligations under this Agreement, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:
(a) the failure of any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to have been true and correct as of the date made or deemed made;
(b) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract or the failure of any Sold Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originator;
(d) any commingling of Collections with other funds;
(e) ; any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligor) of an Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Laws.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which the Company Buyer may have hereunder or under applicable law, each Originator, severally and for itself alone, and Meritor, jointly and severally with each Originator, hereby agrees to indemnify and hold harmless the Company Buyer and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys’ fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Company, proceeds thereof or therefrom; excluding, however, (i) Purchase and Sale Relevant Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (bii) 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 credit risk of an relevant Obligor and for which reimbursement would constitute recourse to (iii) any Originator for uncollectible Receivables overall income or (c) such Purchase and Sale Relevant Amounts are franchise taxes, in respect of Taxes other than any Taxes that represent losseseither case, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit imposed on the liability of such Originator or limit the recourse of any applicable Purchase and Sale Indemnified Party to by the jurisdiction under whose laws such Originator for Purchase and Sale Indemnified Party is organized, operates or where its principal executive office is located or any amounts otherwise specifically provided to be paid by such Originator hereunderpolitical subdivision thereof. Without limiting the foregoing indemnificationforegoing, but and subject to the limitations exclusions set forth in clauses (a), (b) and (c) of the previous preceding sentence, each Originator, severally for itself alone, and Meritor, jointly and severally with each Originator, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure transfer by such Originator of an interest in any Receivable to any Person other than the Buyer;
(b) the breach of any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, or any information or report delivered by Originator pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect when made or deemed made;
(bc) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator sold or otherwise transferred or purported to be transferred hereunder or the related Contract, or the nonconformity of any Receivable generated by such Originator sold or otherwise transferred or purported to be transferred hereunder or the related Contract or the failure of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;
(cd) the failure by such Originator to vest and maintain vested in the Company a First Priority Interest Buyer an ownership interest in the Sold Receivables generated by such Originator;
Originator sold or otherwise transferred or purported to be transferred hereunder (dand not reconveyed hereunder) free and clear of any commingling of Collections with other fundsAdverse Claim;
(e) the failure to file, or any delay in filing, by such 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 by such Originator sold or otherwise transferred or purported to be transferred hereunder, whether at the time of any purchase or at any subsequent time to the extent required hereunder; 701741768 12403015
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy or similar insolvency proceeding of an ObligorObligor or other credit related reasons) of an the Obligor to the payment of any Sold Receivable or purported Receivable generated by such Originator sold or otherwise transferred or purported to be transferred hereunder (including, without limitation, a defense based on such Receivable Receivable’s or the related Contract 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 goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractsservices;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the goods or in connection with services which that are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(lh) any Taxes which are required to be paid by reason of the failure purchase or delay ownership of the Receivables generated by such Originator in providing or any Obligor Related Security connected with an invoice or other evidence of indebtednessany such Receivables; orand
(mi) the failure any indemnification claim made pursuant to Section 1.19 of the sale and pledge Receivables Purchase Agreement to the extent such claim arises (directly or indirectly) from the issuance of any Pool Receivable under Letter of Credit at the Transaction Documents request of such Originator (or, in the case of Meritor, at the request of any Originator) pursuant to comply with Section 3.3; provided, however, that the notice requirements Originators and Meritor shall not have any obligation to reimburse any drawing on any such Letter of FACA Credit or to indemnify any analogous State or local LawsPurchase and Sale Indemnified Party for any such reimbursement.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawApplicable Law, each Originator, severally and for itself alone, hereby agrees to indemnify and hold harmless the Company and Buyer, each of its Affiliatesofficers, directors, employees, agents, employees, officers, employees and directors respective assigns (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, expenses, costsdamages, losses and liabilities, liabilities suffered or sustained (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) arising out of, relating to or in connection with the sale or absolute assignment and contribution of the Receivables to the Buyer under this Agreement, the ownership of the Receivables on or resulting from before the sale or absolute assignment and contribution of the Receivables to the Buyer under this Agreement, the failure to comply with any of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document to which it is a party, any of its acts or failure to act, or arising out the use of the claims asserted against a Purchase proceeds from the Receivables generated by any Originator and Sale Indemnified Party relating to Related Security or the acquisition security interest in respect thereof and without limiting or being limited by the foregoing, any of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromfollowing:
(a) the failure breach of any representation representation, warranty or warranty statement made or deemed made by such Originator (or any employee, officer or agent of its officers, employees or agentssuch Originator) under or in connection with this Agreement or any of the other Transaction Document to Documents, or any information or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure by such Originator to comply with any applicable law, rule or regulation Applicable Law with respect to any Sold Pool Receivable generated by such Originator or the related Contract Contract; or the failure of any Sold Pool Receivable or the related Contract to conform to any such applicable law, rule or regulationApplicable Law;
(c) the failure lack of an enforceable first priority perfected security interest (within the meaning of the applicable UCC), in the Pool Receivables (and all Related Security) originated by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such Originatoragainst all Persons (including any bankruptcy trustee or similar Person), free and clear of any Adverse Claim;
(d) the failure to have filed, or any commingling delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of Collections any applicable jurisdiction or other Applicable Laws with other fundsrespect to the sale, transfer, absolute assignment or contribution to the Buyer of any Pool Receivable or the Related Rights at any time;
(e) the transfer by such Originator of any interest in any Pool Receivable or Related Right other than the transfer of any Pool Receivable and Related Security to the Buyer pursuant to this Agreement and the grant of a security interest (within the meaning of the applicable UCC) to the Buyer pursuant to this Agreement;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy of an Obligorbankruptcy) of an Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from or relating to collection activities with respect to such Pool Receivable;
(g) any failure of such Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Procedures in regard to each Pool Receivable;
(h) the commingling of Collections of Pool Receivables at any time with other funds;
(i) any investigation, litigation or proceeding (actual or threatened) related to its obligations under this Agreement or any other Transaction Document or in respect of any Pool Receivable or any Related Rights arising out of the Originator’s origination, ownership, sale, transfer, assignment or servicing of such Pool Receivable;
(j) any failure of any Originator to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(k) any offset, setoff, adjustment or other non-cash reduction of any Pool Receivable (including Deemed Collections) not arising from the bankruptcy or insolvency, lack of creditworthiness or other financial default or inability to pay of the related Obligor any undisputed indebtedness;
(l) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim) arising out of or in connection with any Pool Receivable or other merchandise, goods or services that are the subject of or related to any Pool Receivable;
(m) any claim brought by any Person other than a Purchase and Sale Indemnified Party arising from any activity by such Originator or any Affiliate of such Originator in servicing, administering or collecting any Pool Receivable;
(n) the failure by such Originator to pay when due any taxes, including, without limitation, sales, excise or personal property taxes;
(o) any dispute, claim, offset or defense (other than discharge in bankruptcy) of an Obligor to the payment of any Pool Receivable (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to any such Sold Pool Receivable or the furnishing of or failure to furnish any such goods or services or relating other similar claim or defense not arising from the bankruptcy or insolvency, lack of creditworthiness or other financial default or inability to collection activities with respect to such Sold Receivable or pay of the related Obligor any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)undisputed indebtedness;
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(kp) any action taken by the Administrative Agent as attorney-in-fact for such Originator (pursuant to this Agreement or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originatorother Transaction Document;
(lq) the failure or delay by such Originator in providing to provide any Obligor with an invoice or other evidence of indebtednessindebtedness related to a Pool Receivable; or
(mr) any tax or governmental fee or charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including without limitation Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or ownership of the Receivables generated by such Originator or any Related Rights connected with any such Receivables; provided that such indemnity shall not be available to any Purchase and Sale Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (i) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted solely from the gross negligence or willful misconduct of a Purchase and Sale Indemnified Party or (ii) constitute recourse with respect to a Pool Receivable by reason of the bankruptcy or insolvency, lack of creditworthiness or other financial default or inability to pay of the related Obligor. If for any reason (other than the gross negligence or willful misconduct of any Purchase and Sale Indemnified Party) the failure 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 each of the sale Originators, severally and pledge for itself alone, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under Applicable Law. The reimbursement, indemnity and contribution obligations of such Originator under this Section 9.1 shall be in addition to any liability which such 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 benefit of any Pool Receivable under successors, assigns, heirs and personal representatives of such Originator and the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local LawsPurchase and Sale Indemnified Parties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Integra Lifesciences Holdings Corp)
Indemnities by the Originators. Without limiting any other rights which the Company that P&L or its assigns may have hereunder or under applicable law, each Originator, severally and for itself alone, Originator hereby agrees to indemnify (and hold harmless the Company pay upon demand to) P&L and each of its Affiliates, agents, employeesassigns, officers, managers, directors, agents and directors employees (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, damagestaxes, expensesliabilities, costs, losses expenses and liabilitiesfor all other amounts payable, including Attorney Costs reasonable attorneys' fees (which attorneys may be employees of any Indemnified Party) and disbursements (all of the foregoing being collectively called “Purchase and Sale Relevant referred to as "Indemnified Amounts”") awarded against or incurred by any of them arising out of or resulting from as a result of this Agreement or the failure acquisition, either directly or indirectly, by P&L of any Receivable originated by such Originator to perform its obligations under this Agreement, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the CompanyOriginator, excluding, Purchase and Sale Relevant however, in all of the foregoing instances:
(a) Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by extent a final judgment of a court of competent jurisdiction by final and nonappealable judgment to have holds that such Indemnified Amounts resulted from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale the Indemnified Party, Party seeking indemnification;
(b) due Indemnified Amounts to the credit risk extent the same includes losses in respect of an Obligor and for which reimbursement would constitute recourse to any Originator for Receivables that are uncollectible Receivables on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(c) taxes imposed by the jurisdiction in which such Purchase Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by P&L of Receivables as a true sale by such Originator to P&L of such Receivables and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claimthe associated Related Security; provided, however, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase P&L and Sale Indemnified Party to such Originator its assigns for any amounts otherwise specifically provided to be paid by such Originator hereunderunder the terms of this Agreement. Without limiting the generality of the foregoing indemnification, but subject to the limitations set forth exclusions in clauses (a), (b) and (c) of the previous sentenceabove, each Originator, severally for itself alone, Originator shall indemnify each Purchase the Indemnified Parties and Sale its assigns for Indemnified Party for Purchase and Sale Relevant Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Originator) relating to or resulting from:
(ai) the failure of any representation or warranty made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or Agreement, any other Transaction Document to which such Originator is a party or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect when made or deemed made;
(bii) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated originated by such Originator it, or any Contract or Invoice related thereto, or the related nonconformity of any such Receivable, Contract or the failure of any Sold Receivable or the related Contract to conform to Invoice with any such applicable law, rule or regulationregulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any such Contract or Invoice;
(ciii) the any failure by of such Originator to vest perform its duties, covenants or other obligations in accordance with the Company provisions of this Agreement or any other Transaction Document to which it is a First Priority Interest party;
(iv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with goods that are the Sold Receivables generated subject of any Contract or Invoice or any Receivable originated by such Originator;
(d) any commingling of Collections with other funds;
(ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Receivable generated originated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract or Invoice 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 Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)goods;
(fvi) the commingling of Collections of such Receivables at any time with other funds;
(vii) any failure of such Originator investigation, litigation or proceeding related to perform its duties and obligations in accordance with the provisions of or arising from this Agreement, any Contract Agreement or any other Transaction Document to which it such Originator is a party or under party, the Contracts;
(g) any products liabilitytransactions contemplated hereby, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated use by such Originator or of the related Contract;
(h) the use proceeds of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due purchase from it hereunder or any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, such Originator in which any Indemnified Party becomes involved as a result of any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originatortransactions contemplated hereby;
(kviii) any action taken by such Originator (or inability to litigate any of its Affiliates) claim against any Obligor in the enforcement or collection respect of any Sold such Receivable generated by as a result of such OriginatorObligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(lix) the (A) failure of such Originator generally to pay its debts as such debts become due or delay admission by such Originator in providing writing of its inability to pay its debts generally or any Obligor with making by such Originator of a general assignment for the benefit of creditors; or (B) the institution of any proceeding by or against such Originator seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an invoice order for relief or the appointment of a receiver, trustee or other evidence similar official for it or any substantial part of indebtedness; orits property, or (C) the taking by such Originator of any corporate action to authorize any of the actions set forth in clauses (A) or (B) above in this clause (ix);
(mx) any failure to vest and maintain vested in P&L or its assigns (subject to the Transaction Documents), or to transfer to P&L, legal and equitable title to, and ownership of, a first priority perfected ownership interest in the Receivables originated by such Originator and the associated Related Security and Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents); and
(xi) the failure of to have filed, or any delay in filing, financing statements or other similar instruments or documents under the sale and pledge UCC of any Pool Receivable under applicable jurisdiction or other applicable laws with respect to any such Receivable, the Transaction Documents Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of sale to comply with the notice requirements of FACA P&L or at any analogous State or local Lawssubsequent time.
Appears in 1 contract
Samples: Receivables Sale Agreement (P&l Coal Holdings Corp)
Indemnities by the Originators. Without limiting any other rights which the Company may have hereunder or under applicable law, each Originator, severally and for itself alone, hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses and liabilities, including Attorney Costs (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of proceeds thereof or therefrom; excluding, however, (i) any indemnification which has the effect of recourse for non-payment of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts due to a discharge in bankruptcy or similar insolvency proceeding or other credit related reasons with respect to the extent, relevant Obligor and (aii) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence any net income or willful misconduct of franchise tax imposed on such Purchase and Sale Indemnified Party, (b) due to Party by the credit risk jurisdiction under the laws of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for is organized or any amounts otherwise specifically provided to be paid by such Originator hereunderpolitical subdivision thereof. Without limiting the foregoing indemnificationforegoing, but and subject to the limitations exclusions set forth in clauses (a), (b) and (c) of the previous preceding sentence, each Originator, severally and for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure transfer by such 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 such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, or any information or report delivered by such Originator pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect when made or deemed made;
(bc) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated or acquired by such 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 such Originator sold or otherwise transferred or purported to be transferred hereunder or the related Contract or the failure of any Sold Receivable or the related Contract to conform to with any such applicable law, rule or regulation;
(cd) the failure by such Originator to vest and maintain vested in the Company a First Priority Interest an ownership interest in the Sold Receivables generated or acquired by such Originator;
(d) Originator sold or otherwise transferred or purported to be transferred hereunder free and clear of any commingling of Collections with other fundsAdverse Claim;
(e) the failure to file, or any delay in filing, by such Originator of any 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 such Originator sold or otherwise transferred or purported to be transferred hereunder, whether at the time of any purchase or contribution or at any subsequent time to the extent required hereunder;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy or similar insolvency proceeding of an ObligorObligor or other credit related reasons) of an the Obligor to the payment of any Sold Receivable or purported Receivable generated or acquired by such Originator sold or otherwise transferred or purported to be transferred hereunder (including, without limitation, a defense based on such Receivable Receivable’s or the related Contract 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 goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractsservices;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the or in connection with goods or services which that are the subject of any Sold Receivable generated or acquired by such Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (ii) 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 are required to be paid by reason of the purchase or ownership of the Receivables generated or acquired by such Originator or the related Contract;
(h) the use of any Purchase Price paid to Related Security connected with any such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local LawsReceivables.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which the Company that Buyer may have hereunder or under applicable law, each Originator, severally and for itself alone, Originator hereby agrees to indemnify (and hold harmless the Company pay upon demand to) Buyer and each of its Affiliates, agents, employeesassigns, officers, directors, agents and directors employees (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, damagestaxes, expensesliabilities, costs, losses expenses and liabilitiesfor all other amounts payable, including Attorney Costs reasonable attorneys’ fees (which attorneys may be employees of Buyer or any such assign) and disbursements (all of the foregoing being collectively called referred to as “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of this Agreement or the failure acquisition, either directly or indirectly, by Buyer of an interest in the Receivables originated by such Originator to perform its obligations under this Agreement, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the CompanyOriginator, excluding, Purchase and Sale Relevant however:
(a) Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by extent a final judgment of a court of competent jurisdiction by final and nonappealable judgment to have holds that such Indemnified Amounts resulted from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale the Indemnified Party, Party seeking indemnification;
(b) due Indemnified Amounts to the credit risk extent the same includes losses in respect of an Obligor and for which reimbursement would constitute recourse to any Receivables originated by such Originator for that are uncollectible Receivables on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(c) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Receivable Interests under the Purchase Agreement as a loan or loans by the Purchasers to Buyer secured by, among other things, the Receivables originated by such Originator, the Related Security and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claimthe Collections; provided, however, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party Buyer to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunderunder the terms of this Agreement. Without limiting the generality of the foregoing indemnification, but subject in each case to the limitations set forth in clauses (a), (b) and (c) of the previous sentenceabove, each Originator, severally for itself alone, Originator shall indemnify each Purchase and Sale Buyer for Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:
(ai) the failure of any representation or warranty made or deemed made by such Originator (or any officers of its officers, employees or agentssuch Originator) under or in connection with any Purchase Report, this Agreement or Agreement, any other Transaction Document to or any other information or report delivered by such Originator pursuant hereto or thereto for which Buyer has not received a Purchase Price Credit that shall have been true and correct as of the date false or incorrect when made or deemed made;
(bii) the failure by such Originator Originator, to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or Contract related thereto, or the related Contract or the failure nonconformity of any Sold Receivable or the related Contract to conform to included therein with any such applicable law, rule or regulationregulation or any failure of such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(ciii) the any failure by of such Originator to vest perform its duties, covenants or other obligations in accordance with the Company a First Priority Interest in the Sold Receivables generated by such Originatorprovisions of this Agreement or any other Transaction Document;
(div) any commingling products liability, personal injury or damage, suit or other similar claim arising out of Collections or in connection with other fundsmerchandise, insurance or services that are the subject of any Contract or any Receivable;
(ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Receivable generated by such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods the merchandise or services service related to any such Sold Receivable or the furnishing of or failure to furnish such goods merchandise or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)services;
(fvi) the commingling of Collections of Receivables at any failure of such Originator to perform its duties and obligations in accordance time with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractsfunds;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(jvii) any investigation, litigation or proceeding relating related to or arising from this AgreementAgreement or any other Transaction Document, any the transactions contemplated hereby, such Originator’s use of the other Transaction Documents or proceeds of the Purchase from it hereunder, the ownership of the Sold Receivables generated originated by such Originator or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Termination Event described in Section 5.1(b);
(x) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables originated by such Originator and the associated Collections, and all of such Originator’s right, title and interest in the Related Security associated with such Receivables, in each case, free and clear of any Adverse Claim;
(xi) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable originated by such Originator, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of the Purchase from such Originator hereunder or at any subsequent time;
(kxii) any action taken or omission by such Originator (which reduces or impairs the rights of Buyer with respect to any of its Affiliates) in Receivable or the enforcement or collection value of any Sold Receivable generated by such OriginatorReceivable;
(lxiii) any attempt by any Person to void the failure or delay by Purchase from such Originator in providing any Obligor with an invoice hereunder under statutory provisions or other evidence of indebtednesscommon law or equitable action; orand
(mxiv) the failure of any Receivable reflected as an Eligible Receivable on any Purchase Report prepared by such Originator to be an Eligible Receivable at the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawstime acquired by Buyer.
Appears in 1 contract
Samples: Receivables Sale Agreement (Amerisourcebergen Corp)
Indemnities by the Originators. Without limiting any other rights which the Company Buyer may have hereunder or under applicable law, rules and regulations, each Originator, severally jointly and for itself aloneseverally, hereby agrees to indemnify and hold harmless the Company Buyer and each of its Affiliates, agents, employees, officers, directors, employees and directors 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, damagesjudgments, liabilities and related costs and expenses, costs, losses including reasonable attorneys’ fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “Purchase and Sale Relevant Indemnified Amounts”) awarded against or incurred by any of them arising out of or resulting from as a result of the failure of such any Originator to perform its obligations under this AgreementAgreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition transactions contemplated herein or therein or the use of the Sold Receivables by the Companyproceeds thereof or therefrom, excluding, however, (i) Purchase and Sale Relevant Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted extent resulting from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (bii) due to any indemnification which has the credit risk effect of an Obligor and recourse for which reimbursement would constitute recourse non-payment of the Receivables to any Originator for uncollectible Receivables or indemnitor (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts except as otherwise specifically provided to be paid under this Section 9.1) and (iii) any tax based upon or measured by such Originator hereundernet income or gross receipts. Without limiting the foregoing indemnificationforegoing, but subject to the limitations set forth in foregoing clauses (ai), (bii) and (ciii) of the previous sentenceabove, each Originator, jointly and severally for itself alone, agrees that it shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Indemnified Amounts relating to or resulting from:
(a) the failure transfer by any Originator of an interest in any Receivable to any Person other than the Buyer;
(b) the breach of any representation or warranty made or deemed made by such any Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, or any written information or report delivered by any Originator pursuant hereto or thereto, which shall have been true and correct as of the date false or incorrect in any material respect when made or deemed made;
(bc) the failure by such any Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or the related Contract Contract, or the failure nonconformity of any Sold Receivable generated by any Originator or the related Contract to conform to with any such applicable law, rule or regulation;
(cd) the failure by such Originator to vest and maintain vested in the Company a First Priority Interest Buyer an ownership interest in the Sold Receivables generated by any Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of the Buyer, whether existing at the time of the purchase of such Originator;
(d) Receivables or at any commingling of Collections with other fundstime 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 any 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 an Obligorbankruptcy) of an the Obligor to the payment of any Sold Receivable or purported Receivable generated by such any Originator (including, without limitation, a defense based on such Receivable Receivable’s or the related Contract 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 goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates);
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contractsservices;
(g) any products liability, environmental or other product liability claim by an Obligor or other third party arising out of the goods or in connection with services which that are the subject of any Sold Receivable generated by such Originator or the related Contract;any Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the use 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 any Purchase Price paid to such Originator;
(i) counsel in defending against the failure same, which may arise by reason of such Originator to pay when due any Taxes, energy surcharges the purchase or other governmental charges payable by it in connection with ownership of the Sold Receivables generated by any Originator or any Related Rights 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 each Originator jointly and severally agrees that it shall contribute to the amount paid or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any of the other Transaction Documents or the ownership of the Sold Receivables generated payable by such Originator;
(k) any action taken by such Originator (Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law, rules or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsregulations.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Kansas City Power & Light Co)
Indemnities by the Originators. Without limiting any other rights which that the Company Buyer may have hereunder or under applicable lawLaw, each Originatorthe Originators, severally jointly and for itself aloneseverally, hereby agrees agree to indemnify and hold harmless the Company and Buyer, each of its Affiliatesofficers, directors, employees, agents, employees, officersemployees and respective assigns, and directors (solely by virtue of the collateral assignment of this Agreement by the Buyer pursuant to Section 2.08(i)(i)(D) of the Receivables Purchase Agreement) the Administrative Agent and each Purchaser (each of the foregoing Persons being individually called a “Purchase Sale and Sale Contribution Indemnified Party”), forthwith on demand, from and against any and all damages, claims, damageslosses, expensesjudgments, costs, losses and liabilities, penalties and related costs and expenses (including Attorney Costs Costs) (all of the foregoing being collectively called “Purchase Sale and Sale Relevant Contribution Indemnified Amounts”) awarded against or incurred by any of them directly arising out of or resulting from the failure of such Originator to perform its obligations under this Agreementof, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting fromin connection with:
(a) the failure breach of any representation or warranty made or deemed made by such any Originator (or any of its officersemployee, employees officer or agentsagent thereof) under or in connection with this Agreement or any of the other Transaction Document to Documents, or any information or report delivered by or on behalf of any Originator pursuant hereto or thereto which shall have been true and correct as of the date untrue or incorrect when made or deemed mademade or delivered;
(b) the failure by such any Originator to transfer good and marketable title in and to any Pool Receivable or Related Right to the Buyer, free and clear of any Adverse Claims, and that is freely assignable, pursuant to this Agreement;
(c) the failure by any Originator to comply with the terms of any applicable law, rule Transaction Document or regulation with any Law in any material respect with respect to any Sold Pool Receivable generated by such Originator or the related Contract Contract; or the failure of any Sold Pool Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(c) the failure by such Originator to vest in the Company a First Priority Interest in the Sold Receivables generated by such OriginatorLaw;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables (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);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable in the Receivables Pool (including a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the property, products or services giving rise to such Receivable or the furnishing or failure to furnish such property, products or services;
(h) any failure of any Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables in any material respect, or to timely and fully comply in all material respects with the Credit and Collection Policy in regard to each Pool Receivable;
(i) any products liability or environmental arising out of or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Receivable;
(j) the misdirection of Collections or the commingling of Collections of Pool Receivables at any time with other funds;
(ek) 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;
(l) any claim brought by any Person other than a Sale and Contribution Indemnified Party arising from any activity by any Originator or any Affiliate thereof in servicing, administering or collecting any Pool Receivable;
(m) the failure by any Originator to pay when due any Taxes with respect to the Pool Receivables, including sales, excise or personal property Taxes, but excluding any taxes calculated or based upon the income of any Contribution Indemnified Party;
(n) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, 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 Sold Pool Receivable or the furnishing of or failure to furnish any such goods or services or relating other similar claim or defense not arising from the financial inability or refusal of any Obligor to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)pay undisputed indebtedness;
(fo) any failure governmental fee or charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including Attorney Costs in defending against the same, which are required to be paid by reason of such Originator to perform its duties and obligations in accordance with the provisions purchase or ownership of this Agreement, any Contract the Receivables or any other Transaction Document to which it is a party or under the ContractsRelated Rights;
(gp) any products liability, environmental or other claim by an Obligor or other third party arising out liability under Section 4.03 of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related ContractReceivables Purchase Agreement;
(hq) any breach of Sections 6.01(w), 7.01(y) or 7.02(q) of the use of any Receivable Purchase Price paid to such Originator;Agreement; or
(ir) the failure of any Receivable sold, transferred, contributed or assigned hereunder as an Eligible Receivable to actually constitute an Eligible Receivable on the date of sale, transfer, contribution or assignment. provided that such Originator indemnity shall not be available to pay when due any TaxesSale and Contribution Indemnified Party to the extent that such losses, energy surcharges claims, damages, liabilities or related expenses (x) are determined to have resulted from the gross negligence or willful misconduct of a Sale and Contribution Indemnified Party or (y) to the extent the same includes damages, claims, losses, judgments, liabilities, penalties and related costs and expenses (including Attorney Costs) in respect of Receivables that are uncollectable or for which collection is delayed by reason of the bankruptcy, insolvency, lack of creditworthiness or other governmental charges payable by it financial inability or refusal to pay, of the related Obligor. Notwithstanding anything to the contrary in connection with the Sold Receivables generated by it or this Agreement;
(j) any investigation, litigation or proceeding relating to this Agreement, any solely for purposes of the other Transaction Documents or the ownership of the Sold Receivables generated by such Originator;
(k) ’s indemnification obligations in this Article IX, any action taken representation, warranty or covenant qualified by such Originator (the occurrence or any non-occurrence of its Affiliates) in a material adverse effect or similar concepts of materiality shall be deemed to be not so qualified. Any indemnification or contribution under this Section 9.1 shall survive the enforcement or collection termination of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsthis Agreement.
Appears in 1 contract
Samples: Sale and Contribution Agreement (Kinetik Holdings Inc.)
Indemnities by the Originators. Without limiting any other rights which that the Company or any of its employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable lawLaw, each OriginatorOriginator hereby, severally jointly and for itself aloneseverally, hereby agrees to indemnify and hold harmless the Company and each of its Affiliates, agents, employees, officers, and directors (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, expenseslosses, costs, losses and liabilities, penalties, reasonable and documented costs and expenses (including Attorney Costs Costs) (all of the foregoing being collectively called referred to as “Purchase and Sale Relevant Indemnified Amounts”) arising out of or resulting from this Agreement or any other Transaction Document (whether directly or indirectly), the failure transactions contemplated thereby or the use of proceeds of Purchases or the ownership of any Pool Receivable or any related Contract or any action taken or omitted by any of the Indemnified Parties in connection therewith (including any action taken by the Administrative Agent as attorney-in-fact for any Originator under any Transaction Document), whether arising by reason of the acts to be performed by such Originator to perform its obligations under this Agreementhereunder or otherwise, or arising out in respect of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Companyany Pool Receivable or any Contract, excluding, Purchase and Sale Relevant Amounts to the extenthowever, (a) such Purchase and Sale Relevant Indemnified Amounts are to the extent finally determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator (except as otherwise specifically provided in this Agreement) for uncollectible Receivables or Pool Receivables, (c) such Purchase and Sale Relevant Indemnified Amounts are in respect of Taxes other than any Taxes that represent lossestaxes, claims, damages, etc. arising from any non-Tax claimwhich shall be governed exclusively by Section 1.9 of the Receivables Purchase Agreement; provided, however, that nothing contained in this sentence shall limit the liability of such any Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Any Indemnified Amounts shall be paid by the Originators to the applicable Indemnified Party within five (5) Business Days following such Indemnified Party’s written demand therefor, setting forth, in reasonable detail, the calculation of such amount and the basis of such demand. Without limiting the foregoing indemnificationforegoing, but and subject to the limitations exclusions and timing set forth in clauses (a)the preceding sentences, (b) and (c) of the previous sentence, Originators shall pay each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase any and Sale Relevant 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:
(ai) the failure of (A) any Pool Receivable included by any Originator or the Servicer (so long as the Servicer is Ingram or an Affiliate of Ingram) in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable as of the date of such calculation or (B) any other information provided by any Originator to the Company with respect to the Pool Receivables or this Agreement to be true and correct;
(ii) the failure of any representation or warranty or statement (i) made or in writing by any Originator, (ii) deemed made by such any Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to have been true and correct as of the date made or deemed in all respects when made;
(biii) the failure by such any Originator to comply with any covenant set forth in Section 5.1;
(iv) the failure by any Originator to comply with any applicable law, rule or regulation Law with respect to any Sold Pool Receivable generated by such Originator or the related Contract Contract; or the failure of any Sold Pool Receivable or the related Contract to conform to any such applicable law, rule or regulationLaw;
(cv) the failure by such Originator to vest in the Company a First Priority Interest valid and enforceable (A) perfected 100% ownership interest in the Sold Pool Receivables generated and the Related Assets with respect thereto and (B) first priority perfected security interest in the Pool Receivables and Related Assets as and when required by such OriginatorSection 2.6, in each case, free and clear of any Adverse Claim;
(dvi) the failure to have filed, or any commingling delay in filing, financing statements or other similar instruments or documents under the UCC of Collections any applicable jurisdiction or other applicable Laws with other fundsrespect to any Pool Receivables and the Related Assets in respect thereof, whether at the time of any Purchase or at any subsequent time;
(evii) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Pool Receivable generated by such Originator (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale or lease of the goods or the rendering of services related to any such Sold Pool Receivable or the furnishing of or failure to furnish any such goods or services or relating to collection activities with respect to such Sold Pool Receivable or any Contract related thereto (if such collection activities were performed by such any Originator or any of its Affiliates acting as Servicer or by any agent or independent contractor retained by such any Originator or any of its Affiliates);
(fviii) any failure of such any Originator to perform its duties and or obligations in accordance with the provisions of this Agreement, any Contract hereof or any other Transaction Document to which it is a party or to perform its duties or obligations under the Contracts;
(gix) any products liabilityliability claim, environmental liability claim, personal injury claim, property damage suit or other claim by an Obligor claim, investigation, litigation or other third party proceeding arising out of the goods or in connection with (a) merchandise, insurance or services which are the subject of any Sold Contract (b) any Transaction Document or (c) a Pool Receivable generated by such Originator or the related Contract;
(hx) the use commingling of Collections of Pool Receivables at any time with other funds of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(jxi) any investigation, litigation or proceeding relating related to this Agreement, Agreement or any of the other Transaction Documents Document or the use of proceeds of Purchases or the ownership of the Sold Receivables generated by such Originatorany Pool Receivable or Related Assets;
(kxii) any action taken by such Originator (distribution of Collections all or a portion of which shall thereafter be rescinded or otherwise must be returned for any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originatorreason;
(lxiii) any Originator’s failure to pay when due any taxes (including sales, excise or personal property taxes) payable in connection with the Pool Receivables;
(xiv) any attempt by any Person to void any transfer by any Originator to the Company of Pool Receivables hereunder under statutory provisions or common law or equitable action, including, any provision of the Bankruptcy Code;
(xv) any failure of a Blocked Account Bank to comply with the terms of the applicable Blocked Account Agreement which results from any act or delay by such Originator in providing failure to act on the part of any Obligor with an invoice or other evidence of indebtednessOriginator; or
(mxvi) any rebate or discount granted to the failure of the sale and pledge Obligor of any Pool Receivable under to the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsextent a Purchase Price Credit was not timely received as otherwise required hereunder.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights which the Company that Buyer may have hereunder or under applicable law, each Originator, severally and for itself alone, Originator hereby agrees to indemnify (and hold harmless the Company pay upon demand to) Buyer and each of its assigns (and their respective Affiliates, agents, employees), officers, directors and directors employees (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, damagestaxes, expensesliabilities, costs, losses expenses and liabilitiesfor all other amounts payable, including Attorney Costs reasonable attorneys' fees (which attorneys may be employees of Buyer or any such assign) and disbursements (all of the foregoing being collectively called “Purchase and Sale Relevant referred to as "Indemnified Amounts”") awarded against or incurred by any of them arising out of or resulting from as a result of this Agreement or the failure acquisition, either directly or indirectly, by Buyer of an interest in the Receivables of such Originator to perform its obligations under this AgreementOriginator, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Companyany Contract or any Writing, excluding, Purchase and Sale Relevant however:
(i) Indemnified Amounts to the extent, (a) such Purchase and Sale Relevant Amounts are determined by extent a final judgment of a court of competent jurisdiction by final and nonappealable judgment to have holds that such Indemnified Amounts resulted from the fraud, gross negligence or willful misconduct on the part of such Purchase and Sale the Indemnified Party, Party seeking indemnification;
(bii) due Indemnified Amounts to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are extent the same includes losses in respect of Taxes Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) franchise taxes and taxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the character ization for income tax purposes of the acquisition by the Purchasers of Pur chaser Interests under the Purchase Agreement as a loan or loans AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT by the Purchasers to Buyer secured by, among other than any Taxes that represent lossesthings, claimsthe Receivables, damages, etc. arising from any non-Tax claimthe Related Security and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of such any Originator or limit the recourse of Buyer to any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunderunder the terms of this Agreement. Without limiting the generality of the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, Originator shall indemnify each Purchase and Sale Indemnified Party Buyer for Purchase and Sale Relevant Indemni fied Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Originator) relating to or resulting from:
(ai) the failure of any representation or warranty made or deemed made by such Originator (or any officers of its officers, employees or agentssuch Originator) under or in connection with this Agreement or Agreement, any other Transaction Document to or any other informa tion or report delivered by such Originator pursuant hereto or thereto that shall have been true and correct as of the date false or incorrect when made or deemed made;
(bii) the failure by such Originator Originator, to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator or Writing or Contract related thereto, or the related Contract or the failure nonconformity of any Sold Receivable or the related Writing or Contract to conform to included therein with any such applicable law, rule or regulationregulation or any failure of such Originator to keep or perform any of its obligations, express or implied, with respect to any Writing or Contract;
(ciii) the any failure by of such Originator to vest perform its duties, covenants or other obligations in accordance with the Company a First Priority Interest in the Sold Receivables generated by such Originatorprovisions of this Agreement or any other Transaction Document;
(div) any commingling products liability, personal injury or damage, suit or other similar claim arising out of Collections or in connection with other fundsmer chandise, insurance or services that are the subject of any Writing or Contract or any Receivable;
(ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Receivable generated by of such Originator (including, without limitation, a defense based on such Receivable or the related Writing or Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance accor dance with its terms), or any other claim resulting from the sale of goods the mer chandise or services service related to any such Sold Receivable or the furnishing of or failure to furnish such goods merchandise or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto services; AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT
(if such collection activities were performed by vi) the commingling of Collections of Receiv ables of such Originator or at any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliates)time with other funds;
(f) any failure of such Originator to perform its duties and obligations in accordance with the provisions of this Agreement, any Contract or any other Transaction Document to which it is a party or under the Contracts;
(g) any products liability, environmental or other claim by an Obligor or other third party arising out of the goods or services which are the subject of any Sold Receivable generated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(i) the failure of such Originator to pay when due any Taxes, energy surcharges or other governmental charges payable by it in connection with the Sold Receivables generated by it or this Agreement;
(jvii) any investigation, litigation or proceeding relating related to or arising from this AgreementAgreement or any other Transaction Document, any the transactions contemplated hereby, the use of the other Transaction Documents or proceeds of any Purchase Price payment, the ownership of the Sold Receivables generated by of such OriginatorOriginator or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(kviii) any inability to litigate any claim against any Obligor in respect of any Receivable of such Originator as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Termination Event described in Section 5.1(d);
(x) any failure to vest and maintain vested in Buyer, or to transfer to Buyer, legal and equitable title to, and ownership of, the Receivables of such Originator and the Collections, and all of such Originator's right, title and interest in the Related Security associated with the Receivables of such Originator, in each case, free and clear of any Adverse Claim;
(xi) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable of such Originator and the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of the Purchase or at any subsequent time;
(xii) any action taken or omission by such Originator (which reduces or impairs the rights of Buyer with respect to any Receivable of its Affiliates) in such Originator or the enforcement or collection value of any Sold Receivable generated such Receivable; AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT
(xiii) any attempt by such Originatorany Person to void the Purchase hereunder under statutory provisions or common law or equitable action;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(mxiv) the failure of any Receivable of such Originator included in the sale calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included; and
(xv) any failure of MRC to acquire and pledge maintain legal and equitable title to, and ownership of any Pool Receivable and the Related Security and Collections with respect thereto from Morningstar, free and clear of any Adverse Claim (other than as created hereunder); or any failure of MRC to give reasonably equivalent value to Morningstar under the Transaction Documents to comply with Transfer Agree ment in consideration of the notice requirements transfer by Morningstar of FACA any Receivable, or any analogous State attempt by any Person to void such transfer under statutory provisions or local Lawscommon law or equitable action.
Appears in 1 contract
Indemnities by the Originators. (a) Without limiting any other rights which the Company Purchaser may have hereunder or under applicable law, each Originator, severally and for itself alone, Originator hereby agrees to indemnify the Purchaser and hold harmless the Company its assigns and each of its Affiliatestransferees (each, agents, employees, officers, and directors (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, claims, damageslosses, liabilities and related costs and expenses, costs, losses including reasonable attorneys' fees and liabilities, including Attorney Costs disbursements (all of the foregoing being collectively called “Purchase and Sale Relevant referred to as "Indemnified Amounts”) "), awarded against or incurred by any Indemnified Party arising out of or resulting from as a result of any of the failure following:
(i) the characterization (A) in any Borrower Report, Weekly Report, Daily Report or (B) for the purpose of inclusion of a Transferred Receivable in the Net Receivables Pool Balance in any other written statement made by such Originator to perform its obligations under this Agreementthe Program Agent, or arising out of any Transferred Receivable as an Eligible Receivable which is not an Eligible Receivable as of the claims asserted against a Purchase and Sale Indemnified Party relating to the acquisition of the Sold Receivables by the Company, excluding, Purchase and Sale Relevant Amounts to the extent, (a) date on which such Purchase and Sale Relevant Amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the fraud, gross negligence or willful misconduct of such Purchase and Sale Indemnified Party, (b) due to the credit risk of an Obligor and for which reimbursement would constitute recourse to any Originator for uncollectible Receivables or (c) such Purchase and Sale Relevant Amounts are in respect of Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim; provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, each Originator, severally for itself alone, shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Relevant Amounts relating to or resulting from:information was certified;
(aii) the failure of any representation or warranty or statement made or deemed made by such Originator (or any of its officers, employees or agents) under or in connection with this Agreement or any other Transaction Document to Document, which shall have been true and correct as of the date incorrect in any respect when made or deemed made;
(biii) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Sold Receivable generated by such Originator Transferred Asset or the related Contract Contract; or the failure of any Sold Receivable Transferred Asset or the related Contract to conform to any such applicable law, rule or regulation;
(civ) the failure by such Originator to vest and maintain vested in the Company Purchaser absolute ownership of the Transferred Assets that are, or that purport to be, the subject of a First Priority Interest in the Sold Receivables generated by such OriginatorPurchase under this Agreement, free and clear of any Adverse Claim;
(d) any commingling of Collections with other funds;
(ev) any dispute, claim, offset or defense (other than discharge in bankruptcy of an the Obligor) of an the Obligor to the payment of any Sold Receivable generated by that is, or that purports to be, the subject of a Purchase under this Agreement from such Originator (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the goods or services related to any such Sold Receivable or the furnishing of or failure to furnish such goods or services or relating to collection activities with respect to such Sold Receivable or any Contract related thereto (if such collection activities were performed by such Originator or any of its Affiliates or by any agent or independent contractor retained by such Originator or its Affiliatesacting as Servicer);
(fvi) any failure of such Originator to perform its duties and obligations comply with any term, provision or covenant contained in accordance with the provisions of this Agreement, any Contract Agreement or any other Transaction Document to which it ORIGINATOR PURCHASE AGREEMENT is a party or to perform its duties or obligations under the Contractsany Contract related to a Transferred Receivable;
(gvii) any products liability, environmental liability or other claim by an Obligor or other third party arising out of the or in connection with goods or services which are the subject of any Sold Contract related to a Transferred Receivable generated originated by such Originator or the related Contract;
(h) the use of any Purchase Price paid to such Originator;
(iviii) the commingling of Collections of Transferred Assets by such Originator (or a designee of such Originator), as Servicer or otherwise, at any time with other funds;
(ix) any investigation, litigation or proceeding related to this Agreement or any other Transaction Document to which such Originator is a party or the use of proceeds of Purchases by such Originator or in respect of any Transferred Asset with respect thereto;
(x) any claim brought by any Person other than an Indemnified Party arising from any activity such Originator or any designee of such Originator in servicing, administering or collecting any Transferred Asset;
(xi) the sale by any Originator of any Receivable Asset in violation of any applicable law, rule or regulation;
(xii) any Adverse Claim attaching to any Transferred Asset or any Originator Collateral with respect thereto, except a Lien created under the Transaction Documents;
(xiii) the failure to pay when due any and all Other Taxes and the payment by such Indemnified Party of Taxes;
(xiv) any failure by the Purchaser to give reasonably equivalent value to such Originator in consideration for the transfer by such Originator to the Purchaser of any Transferred Assets, or any attempt by any Person to void any Purchases under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code;
(xv) the failure of any Lockbox processor or Deposit Bank to remit any amounts or items of payment held in a Lockbox or Deposit Account pursuant to the instructions of the Program Agent given in accordance with the Financing Agreement, the applicable Deposit Account Agreement or the other Transaction Documents, whether by reason of the exercise of setoff rights or otherwise;
(xvi) the failure of such Originator to furnish accurate and complete documentation (including, without limitation, a Contract or invoice) to any Obligor; and
(xvii) any Transferred Receivable becoming (in whole or in part) a Diluted Receivable. ORIGINATOR PURCHASE AGREEMENT
(b) It is expressly agreed and understood by the parties hereto (i) that the foregoing indemnification is not intended to, and shall not, constitute a guarantee of the collectibility or payment of the Transferred Assets and (ii) that nothing in this Section 6.01 shall require any Originator to indemnify any Person (A) for Transferred Receivables which are not collected, not paid or uncollectible on account of the insolvency, bankruptcy, or financial inability to pay when due of the applicable Obligor or (B) for damages, losses, claims or liabilities or related costs or expenses to the extent found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from such Person's gross negligence or willful misconduct. In no event, however, shall Originators be liable for punitive damages other than arising from a third party claim.
(c) Any amounts subject to the indemnification provisions of this Section 6.01 shall be paid by the Originators to the related Indemnified Party within five (5) Business Days 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 Taxesrepresentation, energy surcharges warranty or other governmental charges payable covenant qualified by it 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 any Originator or any of their security holders or creditors for or in connection with the Sold Receivables generated transactions contemplated hereby, except to the extent such liability is determined in a final non-appealable judgment by it a court of competent jurisdiction to have resulted primarily from such Indemnified Party's gross negligence or this willful misconduct or breach of its obligations under the Financing Agreement;
. In no event, however, shall any Indemnified Party be liable on any theory of liability for any special, indirect, consequential or punitive damages (j) any investigationincluding, litigation or proceeding relating to this Agreementwithout limitation, any loss of the other Transaction Documents profits, business or the ownership of the Sold Receivables generated by such Originator;
(k) any action taken by such Originator (or any of its Affiliates) in the enforcement or collection of any Sold Receivable generated by such Originator;
(l) the failure or delay by such Originator in providing any Obligor with an invoice or other evidence of indebtedness; or
(m) the failure of the sale and pledge of any Pool Receivable under the Transaction Documents to comply with the notice requirements of FACA or any analogous State or local Lawsanticipated savings).
Appears in 1 contract
Samples: Originator Purchase Agreement (Hayes Lemmerz International Inc)
