Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B): (i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification; (ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; and (iii) Excluded Taxes; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect of any representations or warranties made under or in connection with this Agreement by any Seller Party. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from: (iv) any representation or warranty made by any Seller Party, Performance Guarantor, or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made; (v) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract; (vi) any failure of Seller, the Servicer, Performance Guarantor, or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality); (vii) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable; (viii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parenthetical, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services; (ix) the commingling of Collections of Receivables at any time with other funds; (x) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby; (xi) 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; (xii) any Amortization Event described in Section 9.1(d); (xiii) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documents); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action; (xiv) any failure to vest and maintain vested in the Agent, for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any Purchaser); (xv) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time; (xvi) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents or the Purchasers with respect to any Receivable or the value of any such Receivable; (xvii) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action; (xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included; (xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and (xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Timken Co), Receivables Purchase Agreement (Timken Co)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Pool Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Asset Interest; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Asset Interest Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of all or any Receivable and portion of the Related Security and Collections with respect thereto Asset Interest from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Receivable Interest Sale Agreement in consideration of the transfer by such Originator of any Receivableportion of the Asset Interest, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the CollectionsAsset Interest, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect theretoAsset Interest, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Pool Receivable included in the calculation of the Net Receivables Asset Interest Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Ferrellgas Partners Finance Corp), Receivables Purchase Agreement (Ferrellgas Partners L P)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each the Managing Agent Agents and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxes; providedtaxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, however, on or measured by the overall net income of such Indemnified Party to the extent that nothing contained in this sentence shall limit the liability computation of any Seller Party or limit such taxes is consistent with the recourse characterization for income tax purposes of the Agent, acquisition by the Managing Agents Purchasers of Purchaser Interests as a loan or loans by the Purchasers to any Seller Party in respect of any representations or warranties made under or in connection with this Agreement secured by any Seller Partythe Receivables, the Related Security, the Collection Accounts and the Collections. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent, the Managing Agents and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the ServicerSeller) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any OriginatorAnixter, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to Anixter under the Receivables Sale Agreement in consideration of the transfer by Anixter of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xi) any failure of Anixter to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from the applicable Originator free and clear of any Adverse Claim (other than as created hereunder); or any failure of Anixter to give reasonably equivalent value to the applicable Originator under the applicable Receivables Sale Transfer Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxii) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxiii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiv) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixv) any attempt by any Person Person, other than a Purchaser, to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixvi) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Anixter International Inc), Receivables Purchase Agreement (Anixter International Inc)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent Funding Agent, each Funding Source and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent Funding Agent, such Funding Source or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance GuarantorProvider, Originator, or any Originator Original Seller (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer Servicer, Provider, Originator, or any Originator Original Seller to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of Originator or any Originator Original Seller to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance GuarantorProvider, Originator or any Originator Original Seller to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance GuarantorProvider, Originator or any Originator Original Seller in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) any failure of Originator to acquire from any Original Seller and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto, free and clear of any Adverse Claim (other than as created by the Transaction Documents); or any failure of Originator to give reasonably equivalent value to any Original Seller under the Transfer Agreement in consideration of the transfer by such Original Seller of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xiii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiv) any action or omission by any Seller Party or Provider which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixvi) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Energizer Holdings Inc), Receivables Purchase Agreement (Energizer Holdings Inc)
Indemnities by the Seller Parties. Without limiting any other --------------------------------- rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”"INDEMNIFIED PARTY") from and against any and all damages (excluding consequential and special damages), losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”"INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Master Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or reasonably incurred by any of them arising out of the Master Servicer’s 's activities as Master Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; providedPROVIDED, howeverHOWEVER, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Master Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Master Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Master Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Master Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of of, any Receivable and the Related Security and Collections with respect thereto from any the applicable Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Ralcorp Holdings Inc /Mo)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (Ax) the Seller hereby agrees to indemnify (and pay upon demand to) the Agent, the Conduit, each Managing Agent of the Committed Purchasers and each Purchaser and their of the respective assigns, officers, directors, agents and employees of the foregoing (each each, an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements pursuant to an invoice in reasonable detail (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a the Conduit or any Committed Purchaser of an interest in the Receivables, and (By) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them solely arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (Ax) and (By):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) with respect to the Servicer, Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; and;
(iiic) Excluded Taxestaxes imposed by any jurisdiction in which such Indemnified Party is organized, its principal executive office is located or it does business, on or measured by the net income of such Indemnified Party, other than any taxes on or measured by net income as a result of such Indemnified Party's having executed, delivered or performed its obligations, or received payment under or enforced, this Agreement or any of the other Transaction Documents, or
(d) taxes imposed on any Committed Purchaser (and any Eligible Assignee thereof) that is not incorporated under the laws of the United States of America, any state thereof or the District of Columbia, only if and to the extent that such Committed Purchaser or Eligible Assignee shall not have furnished to the Seller, at the time or times prescribed by applicable law, such properly completed and executed documentation reasonably requested by the Seller as will permit payments under this Agreement to be made without deduction or withholding, including, without limitation, United States Internal Revenue Service Form W-9, W-8BEN or W-8ECI, as applicable, certifying that such Committed Purchaser or Eligible Assignee is entitled to receive payments under this Agreement without deduction or withholding of any United States federal income tax; provided, however, that nothing contained in this sentence shall limit the liability of any the Seller Party or limit the recourse of the Agent, Agent or any Purchaser to the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by the Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, the Seller shall indemnify the Agent and each Indemnified Party Purchaser for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the ServicerSeller) relating to or resulting from:
(ivi) any representation or warranty made by any the Seller Party, Performance Guarantor, or any Originator (or any officers of any such Personthe Seller) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator Seller to comply with in any material respect any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, or any Originator Seller to perform in any material respect its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any failure of a Collection Bank to comply with the terms of the applicable Collection Account Agreement;
(viii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use by the Seller of the proceeds of an Incremental Purchase or a Reinvestmentany Purchase, the ownership of the Purchaser Interests Purchased Assets or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, or any Originator such Person in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xi) 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;
(xiiix) any Amortization Event described in Section 9.1(d)other than a Voluntary Termination;
(xiiix) any failure of the Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and of the Related Security and Collections with respect thereto Purchased Assets from any the Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of the Seller to give reasonably equivalent value to such the Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership ofSecured Parties, a valid first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest interests in the Receivables, the Related Security and the CollectionsPurchased Assets, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure by the Seller to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect theretoPurchased Assets, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xvixiii) any action or omission by any the Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers any Purchaser with respect to any Receivable Purchased Assets or the value of any such Receivable;Purchased Assets; and
(xviixiv) any attempt by any Person to void any Purchase hereunder or the Agent's security interest in the Purchased Assets under statutory provisions or common law or equitable action;
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller Finance Subsidiary hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxes; providedtaxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, however, on or measured by the overall net income of such Indemnified Party to the extent that nothing contained in this sentence shall limit the liability computation of any Seller Party or limit such taxes is consistent with the recourse characterization for income tax purposes of the Agent, acquisition by the Managing Agents Purchasers of Purchaser Interests as a loan or loans by the Purchasers to any Seller Party in respect of any representations or warranties made under or in connection with this Agreement Finance Subsidiary secured by any Seller Partythe Receivables, the Related Security, Lockboxes, the Collection Accounts and the Collections. Without limiting the generality of the foregoing indemnification, Seller Finance Subsidiary shall indemnify each Indemnified Party the Agent and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller Finance Subsidiary or the Servicer) relating to or resulting from:
(iv) any representation or warranty made by any Seller Party, Performance Guarantor, or any Originator Party (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(v) the failure by SellerFinance Subsidiary, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contractregulation;
(vi) any failure of Seller, Finance Subsidiary or the Servicer, Performance Guarantor, or any Originator Servicer to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(vii) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ix) the commingling of Collections of Receivables at any time with other funds;
(x) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, Finance Subsidiary or the Servicer, Performance Guarantor, or any Originator Servicer in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xi) 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;
(xii) any Amortization Event described in Section 9.1(d);
(xiii) any failure of Seller Finance Subsidiary to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any OriginatorSeller, free and clear of any Adverse Claim Liens (other than as created under the Transaction Documentshereunder); or any failure of Seller Finance Subsidiary to give reasonably equivalent value to such Originator Seller under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator Seller of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxiii) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership security interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim Liens (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxiv) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixv) any action or omission breach by any Seller Party which reduces or impairs the rights Servicer of the Agent, the Managing Agents or the Purchasers with respect to any Receivable or the value of any such Receivableits obligations under this Agreement;
(xviixvi) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixvii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Wix Filtration Media Specialists, Inc.)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the United States, the Indemnified Party's jurisdiction of organization (or, in the case of an individual, primary residence) or any other jurisdiction in which such Indemnified Party has established a taxable nexus other than in connection with the transactions contemplated hereby and by this Agreement, in any case on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, any Seller Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract contract related thereto, or the nonconformity of any Receivable or Contract contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contractsuch contract;
(viiii) any failure of Performance Guarantor, Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)which they are parties;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract contract related to any Receivable or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security (whether or not such Related Security is covered by Article 9 of the UCC), Shared Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security (whether or not such Related Security is covered by Article 9 of the UCC), Shared Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security (whether or not such Related Security is covered by Article 9 of the UCC), Shared Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Ceridian Corp /De/)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent Administrator or any Purchaser TPF may have hereunder or under applicable law, (Aa) the Seller hereby agrees to indemnify (and pay upon demand to) the AgentAdministrator, TPF, each Managing Agent of the Liquidity Banks and each Purchaser and their of the respective assigns, officers, directors, agents and employees of the foregoing (each each, an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser TPF or any of its Liquidity Banks of an interest in the Receivables, and (Bb) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (Aa) and (Bb):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes imposed by the United States, the Indemnified Party’s jurisdiction of organization (or in the case of an individual, his or her jurisdiction of primary residence) or any other jurisdiction in which such Indemnified Party has established a taxable nexus other than in connection with the transactions contemplated hereby, 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 TPF of Receivables as a loan or loans by TPF to the Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any the Seller Party Parties or limit the recourse of TPF to the Agent, Seller Parties for amounts otherwise specifically provided to be paid by the Managing Agents or Seller Parties under the Purchasers to any Seller Party in respect terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, the Seller shall indemnify each Indemnified Party the Administrator and TPF for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to the Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any a Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by the Seller, the Servicer or any Originator to comply in any material respect with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of the Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform in any material respect its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestmentany Purchase, the ownership of the Purchaser Interests Purchased Assets or any other investigation, litigation or proceeding relating to the Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event of the type described in Section 9.1(d9.1(g);
(xiiix) any failure of the Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and of the Related Security and Collections with respect thereto Purchased Assets from any the applicable Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of the Seller to give reasonably equivalent value to such any Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable actionaction (except as created by the Transaction Documents);
(xivxi) any failure to vest and maintain vested in the Agent, Administrator for the benefit of the Managing Agents and the PurchasersTPF, or to transfer to the Agent, Administrator for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership ofSecured Parties, a valid first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest interests in the Receivables, the Related Security and the CollectionsPurchased Assets, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect theretoPurchased Assets, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xvixiii) any action or omission by any a Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Administrator or the Purchasers TPF with respect to any Receivable Purchased Assets or the value of any such ReceivablePurchased Assets;
(xviixiv) any attempt by any Person to void any Purchase hereunder or the Administrator’s security interest in the Purchased Assets under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Arch Chemicals Inc)
Indemnities by the Seller Parties. Without limiting any other rights that any of the Agent, any Managing Agent Agents or any Purchaser Purchasers may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the AgentAgents, each Managing Agent the Purchasers, and each Purchaser and their of the respective assigns, officers, directors, agents and employees of the foregoing (each each, an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser any of the Purchasers of an interest in the ReceivablesPurchased Assets, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):instances:
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted resulting from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts Excluded Taxes to the extent that the same includes losses or other Indemnified Amounts in respect computation of Receivables that are uncollectible on account such taxes is consistent with the characterization for income tax purposes of the insolvencyacquisition by the Purchasers of Receivable Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, bankruptcy or lack of creditworthiness of the related Obligor; and
(iii) Excluded TaxesRelated Security, the Collections and the Proceeds; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of any Agent or Purchaser to Seller for amounts otherwise specifically provided to be paid by Seller under the Agent, the Managing Agents or the Purchasers to any Seller Party in respect terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each the Indemnified Party Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect in any material respect when made or deemed made; provided, that the materiality qualifier contained in this clause shall not apply to any representation or warranty which itself contains a materiality qualifier;
(vii) the failure by Seller, the any Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, any Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or property damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestmentany Purchase, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, any Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) any inability to litigate obtain judgment in or utilize the court or other adjudication system of, any claim against any jurisdiction in which an Obligor in respect of any Receivable may be located as a result of such Obligor being immune from civil and commercial law and suit on the grounds failure to qualify to do business or file any notice of sovereignty business activity report or otherwise from any legal action, suit or proceedingsimilar report;
(xii) any Amortization Event described in Section 9.1(d);
(xiii) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documents); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivix) any failure to vest and maintain vested in the Agent, Administrative Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Administrative Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership ofSecured Parties, a valid first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest interests in the Receivables, the Related Security and the CollectionsPurchased Assets, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);; and
(xvx) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the Relevant UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect theretoPurchased Assets, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xvi) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xvii) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action;
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or 's failure to comply with any of the obligations imposed on it under any the Transaction Documents) , excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, but subject to the exclusions in clauses (a), (b) and (c) above, Seller shall indemnify each Indemnified Party the Agent and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator P&L (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator P&L to comply with any applicable law, rule or regulation with respect to any Receivable Receivable, Contract or Contract related theretoInvoice, or the nonconformity of any Receivable Receivable, Contract or Contract included therein Invoice with any such applicable law, rule or regulation or any failure of any Originator P&L to keep or perform any of its obligations, express or implied, with respect to any ContractContract or Invoice;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator P&L to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services goods that are the subject of any Contract or Invoice or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, 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 the merchandise or service goods related to such Receivable or the furnishing or failure to furnish such merchandise or servicesgoods;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator P&L in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any OriginatorP&L, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller P&L to give reasonably equivalent value to such any applicable Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such any transfer to P&L under the Receivables Sale Agreement or to Seller under the Receivables Contribution Agreement under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such ReceivableReceivable (other than such an action taken or omission made at the request of the Agent or any Purchaser or any action taken by the Servicer in accordance with the Credit and Collection Policy);
(xviixiv) avoidance of any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under any statutory provisions or provision, the common law or any equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
. Notwithstanding the foregoing, to the extent that any Indemnified Amounts arising under clauses (xixi) through (xv) above result from a misrepresentation, breach, action or omission by any disputePerson other than Seller, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure Seller shall be obligated to pay when due any taxes, including without limitation, sales, excise such Indemnified Amounts only to the extent it receives a payment in respect of such amounts pursuant to the Receivables Contribution Agreement or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded TaxesReceivables Sale Agreement.
Appears in 1 contract
Samples: Receivables Purchase Agreement (P&l Coal Holdings Corp)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent Purchaser, any Funding Source or any Purchaser of their respective Affiliates may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and Funding Source, each Purchaser and their respective Affiliates, assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement Agreement, or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out use of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):proceeds
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by Seller under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(iv) : any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(viv) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viv) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viivi) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiivii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixviii) the commingling of Collections of Receivables at any time with other funds;
(xix) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xix) 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;
(xiixi) any Amortization Event described in Section 9.1(d);
(xiiixii) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void any such transfer under statutory provisions or common law or equitable action;
(xivxiii) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxiv) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC (or any comparable law) of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixv) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixvi) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixvii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other --------------------------------- rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) each of the AgentAgents, each Managing Agent and each Purchaser the Purchasers and their respective assigns, members, direct or indirect owners, officers, directors, agents and employees (each each, an “"Indemnified Party”) "), from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party Party, for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;; or
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) any Excluded TaxesTaxes except to the extent the Indemnified Party is entitled to receive an amount equal to the sum it would have received had no deductions for Taxes and Other Taxes been made as set forth in Section 10.1(d)(i); provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or and the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller (and to the extent any of the following arise from actions or inactions of the Servicer, the Servicer) shall indemnify each the Indemnified Party Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer any Seller Party or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, any Seller Party or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds[reserved];
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Receivable Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, any Seller Party or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such the applicable Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Collateral Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Collateral Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Receivable Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Owens & Minor Inc/Va/)
Indemnities by the Seller Parties. (a) Without limiting any other rights that the Agent, any Managing Agent Purchaser, any Funding Source or any Purchaser of their respective Affiliates may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and Funding Source, each Purchaser and their respective Affiliates, assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement Agreement, or the use of the proceeds of any purchase hereunder, or the acquisition, funding or ownership, either directly or indirectly, by a Purchaser or a Funding Source of a Purchaser Interest or of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified or any Receivable or any Contract or any Related Security, or any action of any Seller Party for Indemnified Amounts awarded against or incurred by any Affiliate of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) Seller Party, excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B)::
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by Seller under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC (or any comparable law) of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included.
(b) Without limiting any other rights that the Agent, any Purchaser, any Funding Source or any of their respective Affiliates may have hereunder or under applicable law, the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder excluding, however:
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(xixii) any dispute, suit or claim arising out Indemnified Amounts to the extent the same includes losses in respect of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment Receivables that are uncollectible on account of the rights to payment insolvency, bankruptcy or lack of any Originator or any creditworthiness of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contractrelated Obligor; andor
(xxiii) taxes imposed by the failure 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 pay when due any taxes, including without limitation, sales, excise the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or personal property taxes, payable loans by Seller, Servicer or any Originator in connection with the Purchasers to Seller secured by the Receivables, other than Excluded Taxesthe Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of Servicer or limit the recourse of the Purchasers to Servicer for amounts otherwise specifically provided to be paid by Servicer under the terms of this Agreement.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that any of the Agent, any Managing AgentsAdministrative Agent or any Purchaser of the Purchasers may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Administrative Agent and each Purchaser of the Agents and Purchasers and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing suchthe Administrative Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (hereunderbreach of any representation, warranty or under covenant made by it hereunder, its commingling of any Transaction Documents) Collections or its violation of Law, excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables and Related Security; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the AgentsAdministrative Agent and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of all or any Receivable and portion of the Related Security and Collections with respect thereto Receivables from any the applicable Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Receivable Sale Agreement in consideration of the transfer by such Originator of any Receivableportion of the Receivables, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Administrative Agent for the benefit of the Managing Agents and the PurchasersPurchasersInvestor Parties, or to transfer to the Agent, Administrative Agent for the benefit of the Managing Agents and the PurchasersPurchasersInvestor Parties, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Aggregate Purchaser Interests InterestsInterest contemplated hereunder) or security interest in the Receivables, the Receivables and Related Security and the CollectionsSecurity, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect theretoReceivables, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents AgentsAdministrative Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Ferrellgas Partners Finance Corp)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser Blue Ridge may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, Blue Ridge, each Managing Agent of the Liquidity Banks and each Purchaser and their of the respective assigns, officers, directors, agents and employees of the foregoing (each each, an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaseranother Indemnified Party) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser Blue Ridge or any of its Liquidity Banks of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes 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 Blue Ridge of Receivables as a loan or loans by Blue Ridge to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers Blue Ridge to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent and Blue Ridge for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any the Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any the Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any the Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any the Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the ObligorObligor or financial inability of Obligor to pay) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestmentany Purchase, the ownership of the Purchaser Interests Purchased Assets or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated herebyhereby except to the extent any such investigation, litigation or proceeding relates to a matter involving an Indemnified Party for which neither Originator nor any of its Affiliates is at fault, as finally determined by a court of competent jurisdiction;
(xiviii) 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;
(xiiix) any Amortization Event of the type described in Section 9.1(d9.1(g);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and of the Related Security and Collections with respect thereto Purchased Assets from any the Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such the Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such the Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the PurchasersBlue Ridge, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership ofSecured Parties, a valid first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest interests in the Receivables, the Related Security and the CollectionsPurchased Assets, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect theretoPurchased Assets, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers Blue Ridge with respect to any Receivable Purchased Assets or the value of any such ReceivablePurchased Assets to the extent Agent or Blue Ridge has not previously been compensated therefor by a Deemed Collection;
(xviixiv) any attempt by any Person to void claiming through Buyer voids any Purchase hereunder or the Agent's security interest in the Purchased Assets under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Edwards Lifesciences Corp)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) each of the Servicer and the Sub-Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s its activities as Servicer or Sub-Servicer (as applicable) hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxes; providedtaxes imposed by the United States, howeverby the jurisdiction in which such Indemnified Party's principal executive office is located, or by any other jurisdiction in the United States where such Indemnified Party has established a taxable nexus other than in connection with the transactions contemplated by this Agreement, on or measured by the overall net income of such Indemnified Party to the extent that nothing contained in this sentence shall limit the liability computation of any Seller Party or limit such taxes is consistent with the recourse characterization for income tax purposes of the Agent, acquisition by the Managing Agents Purchasers of Purchaser Interests as a loan or loans by the Purchasers to any Seller Party in respect of any representations or warranties made under or in connection with this Agreement secured by any Seller Party. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(iv) any representation or warranty made by any Seller Party, Performance Guarantor, or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(v) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(vi) any failure of Seller, the Servicer, Performance Guarantor, or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality);
(vii) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parenthetical, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ix) the commingling of Collections of Receivables at any time with other funds;
(x) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xi) 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;
(xii) any Amortization Event described in Section 9.1(d);
(xiii) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documents); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xiv) any failure to vest and maintain vested in the Agent, for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any Purchaser);
(xv) 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 ReceivableSecurity, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xvi) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xvii) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action;
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; Collection Accounts and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. (a) Without limiting any other rights that the Agent, any Managing Agent Purchaser, any Funding Source or any Purchaser of their respective Affiliates may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and Funding Source, each Purchaser and their respective Affiliates, assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement Agreement, or the use of the proceeds of any purchase hereunder, or the acquisition, funding or ownership, either directly or indirectly, by a Purchaser or a Funding Source of a Purchaser Interest or of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified or any Receivable or any Contract or any Related Security, or any action of any Seller Party for Indemnified Amounts awarded against or incurred by any Affiliate of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) Seller Party, excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B)::
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by Seller under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(iv) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(v) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(vi) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(vii) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ix) the commingling of Collections of Receivables at any time with other funds;
(x) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xi) 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;
(xii) any Amortization Event described in Section 9.1(d);
(xiii) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xiv) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xv) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC (or any comparable law) of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvi) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xvii) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included.
(b) Without limiting any other rights that the Agent, any Purchaser, any Funding Source or any of their respective Affiliates may have hereunder or under applicable law, the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer's activities as Servicer hereunder excluding, however:
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(xixii) any dispute, suit or claim arising out Indemnified Amounts to the extent the same includes losses in respect of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment Receivables that are uncollectible on account of the rights to payment insolvency, bankruptcy or lack of any Originator or any creditworthiness of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contractrelated Obligor; andor
(xxiii) taxes imposed by the failure 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 pay when due any taxes, including without limitation, sales, excise the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or personal property taxes, payable loans by Seller, Servicer or any Originator in connection with the Purchasers to Seller secured by the Receivables, other than Excluded Taxesthe Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of Servicer or limit the recourse of the Purchasers to Servicer for amounts otherwise specifically provided to be paid by Servicer under the terms of this Agreement.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded TaxesFranchise taxes or taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts, the Post Office Boxes and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such any Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such any Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser Investor may have hereunder or under applicable law, (A) the Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser Investor and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such PurchaserInvestor) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser an Investor of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent arising from the acts or omissions of a successor Servicer;
(iii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account uncollectible;
(iv) taxes imposed by any jurisdiction in which such Indemnified Party is or would be subject to tax (unless such tax arises solely as a result of the insolvency, bankruptcy transactions contemplated by this Agreement) on or lack measured by the overall net income of creditworthiness such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the related Obligoracquisition by the Investors of interests in the Purchased Notes as a loan or loans by the Investors to Seller secured by the Receivables; andor
(iiiv) Excluded Taxes; arising from a breach of any representation or warranty with respect to any Receivable, to the extent such Receivable is repurchased in accordance with the terms of the Pooling Agreement and the Purchase Agreement. provided, however, that nothing contained in this sentence shall limit the liability of any the Seller Party or NFC or limit the recourse of the Agent, Investors to the Managing Agents or the Purchasers to any Seller Party in respect of any representations or warranties made under or in connection with this Agreement by any Seller Party. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or NFC for amounts otherwise specifically provided to be paid by the Servicer) relating to Seller or resulting from:
(iv) any representation or warranty made by any Seller Party, Performance Guarantor, or any Originator (or any officers of any such Person) NFC under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(v) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(vi) any failure of Seller, the Servicer, Performance Guarantor, or any Originator to perform its duties, covenants or other obligations in accordance with the provisions terms of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality);
(vii) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parenthetical, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ix) the commingling of Collections of Receivables at any time with other funds;
(x) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xi) 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;
(xii) any Amortization Event described in Section 9.1(d);
(xiii) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documents); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xiv) any failure to vest and maintain vested in the Agent, for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any Purchaser);
(xv) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xvi) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xvii) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action;
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each each, an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the United States, the Indemnified Party's jurisdiction of organization (or, in the case of an individual, primary residence) or any other jurisdiction in which such Indemnified Party has established a taxable nexus other than in connection with the transactions contemplated hereby and by the other Transaction Documents, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, but subject to the exclusions in clauses (a), (b) and (c) above, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer (at any time the Servicer is Mxxxxxxx or one of its Affiliates) or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Termination Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any the applicable Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such the applicable Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such ReceivableReceivable (other than such an action taken or omission made at the request of the Agent or any Purchaser or any action taken by the Servicer in accordance with the Credit and Collection Policy);
(xviixiv) any attempt avoidance by any Person to void of any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) . Notwithstanding the foregoing, if any dispute, suit or claim arising Indemnified Amount arises out of any provision a lawsuit or other adversarial proceeding, unless an Indemnified Party's business reputation is at issue, Seller shall be entitled to assume and control the defense thereof in any Contract which its sole discretion using counsel approved by the applicable Indemnified Party (A) restricts such approval not to be unreasonably withheld or prohibits, delayed). If Seller does assume the defense of a lawsuit or requires other adversarial proceeding pursuant to the Obligor’s consent topreceding sentence, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under applicable Indemnified Party may engage additional counsel only at such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded TaxesIndemnified Party's sole expense.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Administrator, any Purchaser Agent, any Managing Agent Purchaser or any Purchaser Funding Source may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Administrator, each Purchaser Agent, each Managing Agent Purchaser, each Funding Source and each Purchaser and their of the respective assigns, officers, directors, agents members, partners, certificateholders, Administrators and employees of the foregoing (each each, an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaserany Indemnified Party) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser any Indemnified Party of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) hereunder; excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes results from losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes 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 any Purchaser of Receivables as a loan or loans by any Purchaser to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, provided that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers any Indemnified Party to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each the Indemnified Party Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestmentany Purchase, the ownership of the Purchaser Interests Purchased Assets or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event of the type described in Section 9.1(d9.1(k);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and of the Related Security and Collections with respect thereto Purchased Assets from any the Applicable Originator, free and clear of any Adverse Claim Lien (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such any Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Administrator for the benefit of the Managing Agents and the PurchasersSecured Parties, or to transfer to the Agent, Administrator for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership ofSecured Parties, a valid first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest interests in the Receivables, the Related Security and the CollectionsPurchased Assets, free and clear of any Adverse Claim Lien (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect theretoPurchased Assets, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents or the Purchasers any Indemnified Party Portion with respect to any Receivable Purchased Assets or the value of any such ReceivablePurchased Assets;
(xviixiv) any attempt by any Person to void any Purchase hereunder or the Administrator’s security interest in the Purchased Assets under statutory provisions or common law or equitable action;
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;; and
(xixxvi) any disputecivil penalty or fine assessed by the Office of Foreign Assets Control of the U.S. Department of the Treasury or any other Governmental AuthorityOFAC or any other Official Body administering any Anti-Corruption Law or Sanctions, suit or claim arising out and all reasonable costs and expenses (including reasonable documented legal fees and disbursements) incurred in connection with defense thereof by, any Indemnified Party in connection with the Transaction Documents as a result of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment action of the rights to payment of any Originator Seller or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxesrespective Affiliates.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Amerisourcebergen Corp)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person Person, other than a Purchaser, to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Pool Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Asset Interest; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Asset Interest Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of all or any Receivable and portion of the Related Security and Collections with respect thereto Asset Interest from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Interest Sale Agreement in consideration of the transfer by such Originator of any Receivableportion of the Asset Interest, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the CollectionsAsset Interest, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect theretoAsset Interest, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Pool Receivable included in the calculation of the Net Receivables Asset Interest Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Ferrellgas Partners Finance Corp)
Indemnities by the Seller Parties. Without limiting any other rights that the Administrative Agent, any Managing Agent Agent, any L/C Issuer, any Funding Source or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Administrative Agent, each Managing Agent Agent, each Funding Source, each L/C Issuer and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costscosts or expenses, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser or an L/C Issuer of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnificationindemnification or material breach by such Indemnified Party of the express terms of the Transaction Documents;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes 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 Purchases by the Administrative Agent, for the benefit of the Purchasers and L/C Issuers as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents Purchasers or the Purchasers L/C Issuers to any Seller Party in respect Party, any Originator or Marathon for amounts otherwise specifically provided to be paid by such Seller Party, any Originator or Marathon, as applicable, under the terms of any representations or warranties made under or in connection with this Agreement by or any Seller Partyother Transaction Document. Without limiting the generality of the foregoing indemnification, but subject to the exclusions set forth in clauses (i) through (iii) above, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, or any Originator or Marathon (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other written information or report delivered by any such Person pursuant hereto or thereto, including, without limitation, the representations and warranties under Section 5.1(cc) hereof, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or Servicer, any Originator or Marathon to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, or any Originator or Marathon to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase a Credit Event or a Reinvestmentdraw under any Letter of Credit, the ownership of the Purchaser Interests Interest or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, or any Originator or Marathon in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any OriginatorMPC LP, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); , or any failure of Seller to give reasonably equivalent value to such Originator MPC LP under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator MPC LP of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Administrative Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Administrative Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests Interest contemplated hereunder) or security interest in the Receivables, the Related Security and the CollectionsCollections and the Collection Accounts and Lock-Boxes, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Purchase Credit Event or at any subsequent time;
(xvixiii) any action or omission (other than as expressly contemplated by this Agreement or any other Principal Transaction Document) by any Seller Party Party, any Originator or Marathon which reduces or impairs the rights of the Administrative Agent, the Managing Agents Agents, the L/C Issuers or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Purchase Credit Event hereunder under statutory provisions or common law or equitable action;
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;; or
(xixxvi) any dispute, suit Letter of Credit issued in connection herewith or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment use of the rights to payment of any Originator proceeds thereof by the applicable beneficiary or any of its assignees under such Contract affiliate, agent, employee or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreementassignee thereof. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT, includingIN WHOLE OR IN PART, without limitationCAUSED BY ANY NEGLIGENT ACT OR OMISSION OF ANY L/C ISSUER, the right to review such Contract; and
(xx) the failure to pay when due any taxesANY PURCHASER, including without limitationTHE ADMINISTRATIVE AGENT, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded TaxesANY MANAGING AGENT OR THEIR RESPECTIVE AFFILIATES.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Marathon Petroleum Corp)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each each, an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the United States, the Indemnified Party's jurisdiction of organization (or, in the case of an individual, primary residence) or any other jurisdiction in which such Indemnified Party has established a taxable nexus other than in connection with the transactions contemplated hereby and by the other Transaction Documents, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, but subject to the exclusions in clauses (a), (b) and (c) above, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer (at any time the Servicer is Meredith or one of its Affiliates) or any Originator in which any Indemnified xxx Xxxemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any the applicable Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such the applicable Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such ReceivableReceivable (other than such an action taken or omission made at the request of the Agent or any Purchaser or any action taken by the Servicer in accordance with the Credit and Collection Policy);
(xviixiv) any attempt avoidance by any Person to void of any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;.
(xix1) to the extent that any disputeIndemnified Amounts arising under clauses (i), suit (ii), (iii), (vii) and (x) above result from a misrepresentation, breach, action or claim arising omission by any Originator, Seller shall be obligated to pay such Indemnified Amounts only to the extent it receives a payment in respect of such amounts pursuant to the Receivables Sale Agreement, and (2) if any Indemnified Amount arises out of any provision a lawsuit or other adversarial proceeding, unless an Indemnified Party's business reputation is at issue, Seller shall be entitled to assume and control the defense thereof in any Contract which its sole discretion using counsel approved by the applicable Indemnified Party (A) restricts such approval not to be unreasonably withheld or prohibits, delayed). If Seller does assume the defense of a lawsuit or requires other adversarial proceeding pursuant to the Obligor’s consent topreceding sentence, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under applicable Indemnified Party may engage additional counsel only at such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded TaxesIndemnified Party's sole expense.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each each, an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i1) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii2) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii3) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Receivable Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(iv) any representation or warranty made by any Seller Party, Performance Guarantor, or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(v) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(vi) any failure of Seller, the Servicer, Performance Guarantor, or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality);
(vii) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parenthetical, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it exclusions in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ix) the commingling of Collections of Receivables at any time with other funds;
(x) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xi) 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;
(xii) any Amortization Event described in Section 9.1(d);
(xiii) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documents); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xiv) any failure to vest and maintain vested in the Agent, for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except clauses (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any Purchaser);
(xv) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xvi) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xvii) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action;
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.,
Appears in 1 contract
Samples: Annual Report
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located and any jurisdiction in which such Indemnified Party is doing business (except to the extent that any such tax is imposed by such jurisdiction based upon this Agreement or any other Transaction Document), on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Originator or any Originator Original Seller (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) Docu ment or any other information or report delivered by any such Person pursuant hereto or thereto, which that shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer Servicer, Originator or any Originator Original Seller to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity noncon formity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of Originator or any Originator Original Seller to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Originator or any Originator Original Seller to perform its duties, covenants or other obligations obliga tions in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandisemerchan dise, insurance or services that are servicex xxxx axx the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding pro ceeding related to or arising from this Agreement or any other Transaction DocumentDocu ment, the transactions contemplated hereby, the use of the proceeds of an Incremental Incremen tal Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Origina tor or any Originator Original Seller in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from Originator or any Originatorfailure of Originator to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from the Original Seller thereof, in each case free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of such Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action; or any failure of Originator to give reasonably equivalent value to the Original Seller of any Receivable under the Transfer Agreement in consideration of the transfer by such Original Seller of such Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which that reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent Funding Source and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent Funding Source or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, subject to the limitations set forth in clauses (i) and (iii) above, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;
(xviiixv) [Reserved]; and
(xvi) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Graybar Electric Co Inc)
Indemnities by the Seller Parties. Without limiting any other rights that any of the Agent, any Managing Agent Agents or any Purchaser Purchasers may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) each of the Agent, each Managing Agent Agents and each Purchaser Purchasers and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables and Related Security; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agents and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of all or any Receivable and portion of the Related Security and Collections with respect thereto Receivables from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Receivable Sale Agreement in consideration of the transfer by such Originator of any Receivableportion of the Receivables, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Administrative Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Administrative Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Receivables and Related Security and the CollectionsSecurity, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect theretoReceivables, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Ferrellgas Partners Finance Corp)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Funding Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages (excluding consequential and special damages), losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Funding Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Master Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or reasonably incurred by any of them arising out of the Master Servicer’s activities as Master Servicer hereunder (or under any Transaction Documents) hereunder, excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent, the Funding Agents and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Master Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Master Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Master Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Master Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of of, any Receivable and the Related Security and Collections with respect thereto from any the applicable Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Funding Agents or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Ralcorp Holdings Inc /Mo)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser Blue Ridge may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, Blue Ridge, each Managing Agent of the Liquidity Banks and each Purchaser and their of the respective assigns, officers, directors, agents and employees of the foregoing (each each, an “Indemnified Party”"INDEMNIFIED PARTY") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) actually incurred and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”"INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser Blue Ridge or any of its Liquidity Banks of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excludingEXCLUDING, howeverHOWEVER, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes on or measured by the overall net income of such Indemnified Party imposed by the jurisdiction in which such Indemnified Party's principal executive office is located and any jurisdiction in which such Indemnified Party (i) is doing business (except to the extent it is deemed to be doing business in such jurisdiction based on the Agreement or any other Transaction Document) and (ii) is paying such taxes, and, in any event, to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by Blue Ridge of Receivables as a loan or loans by Blue Ridge to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; providedPROVIDED, howeverHOWEVER, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers Blue Ridge to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent and Blue Ridge for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestmentany Purchase, the ownership of the Purchaser Interests Purchased Assets or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event of the type described in Section 9.1(d9.1(g);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and of the Related Security and Collections with respect thereto Purchased Assets from any the applicable Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such any Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the PurchasersBlue Ridge, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership ofSecured Parties, a valid first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest interests in the Receivables, the Related Security and the CollectionsPurchased Assets, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect theretoPurchased Assets, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers Blue Ridge with respect to any Receivable Purchased Assets or the value of any such ReceivablePurchased Assets;
(xviixiv) any attempt by any Person to void any Purchase hereunder or the Agent's security interest in the Purchased Assets under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent Purchaser and each Purchaser and their of the respective assigns, officers, directors, agents and employees of the foregoing (each each, an “Indemnified Party”) from and against any and all damages, losses, claims, taxesOther Taxes, Indemnified Taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaseranother Indemnified Party) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxes; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers Purchaser to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent and Purchaser for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestmentany Purchase, the ownership of the Purchaser Interests Purchased Assets or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event of the type described in Section 9.1(d9.1(g);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and of the Related Security and Collections with respect thereto Purchased Assets from any the applicable Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such any Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the PurchasersPurchaser, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership ofSecured Parties, a valid first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest interests in the Receivables, the Related Security and the CollectionsPurchased Assets, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect theretoPurchased Assets, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers Purchaser with respect to any Receivable Purchased Assets or the value of any such ReceivablePurchased Assets;
(xviixiv) any attempt by any Person to void any Purchase hereunder or the Agent’s security interest in the Purchased Assets under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor �herefore would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract Invoice related thereto, or the nonconformity of any Receivable or Contract Invoice included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any ContractInvoice;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract Invoice or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract 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 the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d9.1(e);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any the applicable Originator, free and clear of any PACA Lien or other Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such the applicable Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such the applicable Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any Purchaserexcept for PACA Liens);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Performance Food Group Co)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and Purchaser, each Purchaser Funding Source and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, or any Originator Party (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator Seller Party to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator such Seller Party to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, or any Originator Seller Party to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, or any Originator a Seller Party in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”"INDEMNIFIED PARTY") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”"INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxes; providedtaxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, however, on or measured by the overall net income of such Indemnified Party to the extent that nothing contained in this sentence shall limit the liability computation of any Seller Party or limit such taxes is consistent with the recourse characterization for income tax purposes of the Agent, acquisition by the Managing Agents Purchasers of Purchaser Interests as a loan or loans by the Purchasers to any Seller Party in respect of any representations or warranties made under or in connection with this Agreement secured by any Seller Party. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(iv) any representation or warranty made by any Seller Party, Performance Guarantor, or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(v) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(vi) any failure of Seller, the Servicer, Performance Guarantor, or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality);
(vii) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parenthetical, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ix) the commingling of Collections of Receivables at any time with other funds;
(x) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xi) 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;
(xii) any Amortization Event described in Section 9.1(d);
(xiii) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documents); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xiv) any failure to vest and maintain vested in the Agent, for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security Security, the Collection Accounts and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any Purchaser);
(xv) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xvi) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xvii) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action;
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: u.s. Receivables Purchase Agreement (Weatherford International Inc /New/)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Lock-Boxes and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or either any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originatorthe Originator of such Receivable, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such the Originator of any Receivable under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any such Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which that reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting --------------------------------- any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, ----------------- losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred ------------------- by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security and the Collections; provided, however, that nothing contained in this sentence shall limit the --------- -------- liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivablesreceivables for matters specifically described below, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, or any Originator Torchmark Entity (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator Torchmark Entity to comply with any applicable law, rule rule, regulation, agreement (including any confidentiality agreement), order, writ, judgment, injunction, decree or regulation award, including with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator Torchmark Entity to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, or any Originator Torchmark Entity to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury liability or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any ReceivableContract;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestmentpurchase, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, or any Originator Torchmark Entity in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);; ---------------
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originatorthereto, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator AIL under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator AIL of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, for the benefit of the Managing Agents Agent and the Purchasers, or to transfer to the Agent, for the benefit of the Managing Agents Agent and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any Purchaser)Claim;
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party Torchmark Entity which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any action or omission by any Insurance Agent or any member of an Agent-Hierarchy which (A) reduces or impairs the rights of the Agent or the Purchasers with respect to any Receivable or the value of any such Receivable and (B) does not entail the commencement by such Insurance Agent or member of any bankruptcy or insolvency proceeding or any other action or omission (including any failure to pay) by reason of the lack of creditworthiness or ability to pay on the part of such Insurance Agent or Agent-Hierarchy;
(xv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xxxvi) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded TaxesYear 2000 Problem.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, each Seller Party shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer but limited, in the case of the Servicer, to Indemnified Amounts arising out of the Servicer's activities as Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any such Seller Party, Performance Guarantor, or any Originator Party (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator such Seller Party to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator such Seller Party to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, or any Originator such Seller Party to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any each Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documents); or any failure of Seller to give reasonably equivalent value to such each Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any Purchaser)Claim;
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any such Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;; and
(xviixiv) any attempt by any Person (other than a Purchaser) to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (American Commercial Lines LLC)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser Blue Ridge may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, Blue Ridge, each Managing Agent of the Liquidity Banks and each Purchaser and their of the respective assigns, officers, directors, agents and employees of the foregoing (each each, an “" Indemnified Party”Party ") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaseranother Indemnified Party) and disbursements (all of the foregoing being collectively referred to as “" Indemnified Amounts”Amounts ") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser Blue Ridge or any of its Liquidity Banks of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxesfranchise taxes not paid or 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 Blue Ridge of Receivables as a loan or loans by Blue Ridge to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers Blue Ridge to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent and Blue Ridge for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestmentany Purchase, the ownership of the Purchaser Interests Purchased Assets or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event of the type described in Section 9.1(d9.1(g);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and of the Related Security and Collections with respect thereto Purchased Assets from any the applicable Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such any Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the PurchasersBlue Ridge, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership ofSecured Parties, a valid first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest interests in the Receivables, the Related Security and the CollectionsPurchased Assets, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect theretoPurchased Assets, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers Blue Ridge with respect to any Receivable Purchased Assets or the value of any such ReceivablePurchased Assets;
(xviixiv) any attempt by any Person to void any Purchase hereunder or the Agent's security interest in the Purchased Assets under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Adc Telecommunications Inc)
Indemnities by the Seller Parties. (a) Without limiting any other rights that the Collateral Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Collateral Agent, each the Managing Agent Agents and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Collateral Agent, such the Managing Agent Agents or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of any breach by the Servicer’s activities Servicer (whether in its capacity as Servicer or in its capacity as Originator) of a representation, warranty, covenant or obligation made by the Servicer hereunder (or under any other Transaction Documents) Document excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness financial inability to pay of the related Obligor; andor
(iii) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Collateral Agent, the Managing Agent and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, subject to clause (ii) in the preceding paragraph, but otherwise regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, CGSF or any the Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by any Seller, the Servicer Servicer, CGSF or any the Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any the Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, CGSF or any the Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury injury, damage or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any ReceivableContract;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestmentpurchase, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, CGSF or any the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d8.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any CGSF and the Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such CGSF under the Tier Two Receivables Sale Agreement or any failure of CGSF to give reasonably equivalent value to the Originator under the applicable Tier One Receivables Sale Agreement in consideration of the transfer by such Originator CGSF or the Originator, respectively, of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, for the benefit of the Managing Agents Collateral Agent and the Purchasers, or to transfer to the Agent, for the benefit of the Managing Agents Collateral Agent and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any Purchaser)Claim;
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Collateral Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;; and
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;.
(xviiib) Notwithstanding anything to the failure of any Receivable included contrary in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, includingsolely for the purposes of determining Indemnified Amounts owing under this Section 9.1, without limitationany representation, warranty or covenant qualified by materiality or the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxesoccurrence of a Material Adverse Effect shall not be so qualified.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each each, an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) hereunder, excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the Intended Characterization; provided, however, that nothing contained in this sentence shall will limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall will indemnify each Indemnified Party the Agents and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Convergys or any Originator either of the Originators (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall will have been false or incorrect when made or deemed made;
(vii) the failure by any Seller, the Servicer Servicer, Convergys or any Originator either of the Originators to comply with any applicable law, rule or regulation with respect to any Receivable or any Contract or Invoice related thereto, or the nonconformity of any Receivable or Contract included therein Invoice with any such applicable law, rule or regulation or any failure of any the applicable Originator to keep or perform any of its obligations, express or implied, with respect to any ContractContract or Invoice, including, without limitation, any anti-assignment or confidentiality clause contained therein;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Convergys or any Originator of the Originators to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other the Transaction Document (in any case, without regard Documents to any qualifications concerning the occurrence or non-occurrence of which it is a Material Adverse Effect or similar concepts of materiality)party;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with any merchandise, insurance or services that are the subject of any Contract Contract, Invoice or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, 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 the merchandise or service services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an any Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Convergys or any Originator either of the Originators in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiiA) any failure of Seller Convergys to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any the applicable Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); , or any failure of Seller Convergys to give reasonably equivalent value to such Originator under the applicable First-Step Receivables Sale Purchase Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action, or (B) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from Convergys, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Seller to give reasonably equivalent value to Convergys under the Receivables Sale Agreement in consideration of the transfer by Convergys of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, for the benefit of the Managing Agents Fifth Third and the PurchasersFalcon Agent (or the Administrative Agent on their behalf), or to transfer to the Agent, for the benefit of the Managing Agents Fifth Third and the PurchasersFalcon Agent (or the Administrative Agent on their behalf), legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any Purchaser)Claim;
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any the Managing Agent Agents or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and Agent, each Purchaser and theany Related CP Issuer and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent Agent, such Purchaser or such Purchaserthesuch Related CP Issuer) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the United States or the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller or Servicer, as applicable, shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the an Obligor) of the an Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any OriginatorInsight, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such an Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Eligible Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Insight Enterprises Inc)
Indemnities by the Seller Parties. (a) Without limiting any other rights that the Agent, any Managing Agent Purchaser, any Funding Source or any Purchaser of their respective Affiliates may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and Funding Source, each Purchaser and their respective Affiliates, assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement Agreement, or the use of the proceeds of any purchase hereunder, or the acquisition, funding or ownership, either directly or indirectly, by a Purchaser or a Funding Source of a Purchaser Interest or of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified or any Receivable or any Contract or any Related Security, or any action of any Seller Party for Indemnified Amounts awarded against or incurred by any Affiliate of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) Seller Party, excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B)::
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by Seller under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void any such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC (or any comparable law) of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included.
(b) Without limiting any other rights that the Agent, any Purchaser, any Funding Source or any of their respective Affiliates may have hereunder or under applicable law, the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder, excluding, however:
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(xixii) any dispute, suit or claim arising out Indemnified Amounts to the extent the same includes losses in respect of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment Receivables that are uncollectible on account of the rights to payment insolvency, bankruptcy or lack of any Originator or any creditworthiness of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contractrelated Obligor; andor
(xxiii) taxes imposed by the failure 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 pay when due any taxes, including without limitation, sales, excise the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or personal property taxes, payable loans by Seller, Servicer or any Originator in connection with the Purchasers to Seller secured by the Receivables, other than Excluded Taxesthe Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of Servicer or limit the recourse of the Purchasers to Servicer for amounts otherwise specifically provided to be paid by Servicer under the terms of this Agreement.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that any of the Agent, any Managing Agent Agents or any Purchaser Purchasers may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) each of the Agent, each Managing Agent Agents and each Purchaser Purchasers and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables and Related Security; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agents and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of all or any Receivable and portion of the Related Security and Collections with respect thereto Receivables from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Receivable Sale Agreement in consideration of the transfer by such Originator of any Receivableportion of the Receivables, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Receivables and Related Security and the CollectionsSecurity, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect theretoReceivables, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Ferrellgas Partners Finance Corp)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser the Purchasers may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent the Purchasers and each Purchaser and their of the respective assigns, officers, directors, agents and employees of the foregoing (each each, an “Indemnified Party”"INDEMNIFIED PARTY") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaseranother Indemnified Party) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”"INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a any Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excludingEXCLUDING, howeverHOWEVER, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded TaxesTaxes to the extent that the computation of such Excluded Taxes is consistent with the characterization for income tax purposes of the acquisition by the Agent for the benefit of the Purchasers of Receivables as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; providedPROVIDED, howeverHOWEVER, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents Agent or the Purchasers any Purchaser to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of which such Person is a Material Adverse Effect or similar concepts of materiality)party;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating Document to which Seller, the Servicer, Performance Guarantor, or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xi) 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;
(xii) any Amortization Event described in Section 9.1(d);
(xiii) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documents); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xiv) any failure to vest and maintain vested in the Agent, for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any Purchaser);
(xv) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xvi) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xvii) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action;
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Deal Agent, any Managing Agent or any Purchaser Investor may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Deal Agent, each Managing Agent and each Purchaser Investor and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Deal Agent, such Managing Agent or such PurchaserInvestor) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser an Investor of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any other Transaction Documents) Documents excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes 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 Investors of Investor Interests as a loan or loans by the Investors to Seller secured by the Receivables, the Related Security, the Blocked Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers Investors to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each the Indemnified Party Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any the Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made, provided that for the purposes of this paragraph (i), the representations and warranties made in Section 6.1(t) and (u) shall be evaluated without giving effect to any knowledge qualifiers contained therein;
(vii) the failure by Seller, the Servicer or any the Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any the Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any the Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Investor Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xi) 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;
(xii) any Amortization Event described in Section 9.1(d);
(xiiiviii) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any the Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such the Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such the Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivix) any failure to vest and maintain vested in the Agent, Deal Agent for the benefit of the Managing Agents and the PurchasersInvestors, or to transfer to the Agent, Deal Agent for the benefit of the Managing Agents and the PurchasersInvestors, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Investor Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvx) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvi) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixi) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixii) the failure of any Receivable included in the calculation of the Net Receivables Receivable Pool Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Administrative Agent, any Managing Agent the Purchaser or any Purchaser Committed Investor may have hereunder or under applicable law, (Aa) Seller hereby agrees to indemnify (and pay upon demand to) the Administrative Agent, the Purchaser, each Managing Agent Committed Investor, each of the Liquidity Banks and each Purchaser and their of the respective assigns, officers, directors, agents and employees of the foregoing (each each, an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Administrative Agent or such Purchaseranother Indemnified Party) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser the Purchaser, any Committed Investor or any Liquidity Bank of an interest in the Receivables, and (Bb) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (Aa) and (Bb):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes 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 Purchaser or any Committed Investor of Receivables as a loan or loans by the Purchaser or such Committed Investor to Seller secured by the Receivables, the Related Security, the Blocked Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents Purchaser or the Purchasers any Committed Investor to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Administrative Agent, the Purchaser and the Committed Investors for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any the Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any the Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any the Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any the Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestmentany Purchase, the ownership of the Purchaser Interests Purchased Assets or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event of the type described in Section 9.1(d9.1(g);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and of the Related Security and Collections with respect thereto Purchased Assets from any the Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such the Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such the Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Administrative Agent for the benefit of the Managing Agents and the PurchasersSecured Parties, or to transfer to the Agent, Administrative Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership ofSecured Parties, a valid first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the CollectionsPurchased Assets, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect theretoPurchased Assets, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Administrative Agent, the Managing Agents Purchaser or the Purchasers Committed Investors with respect to any Receivable Purchased Assets or the value of any such ReceivablePurchased Assets;
(xviixiv) any attempt by any Person to void any Purchase hereunder or the Administrative Agent's security interest, for the benefit of the Secured Parties, in the Purchased Assets under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand pay, within five (5) Business Days of written notice, to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and itemized out-of-pocket disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxes; provided, however, taxes imposed that nothing contained in this sentence shall limit are measured by the liability overall net income of any Seller such Indemnified Party or limit to the recourse extent that the computation of such taxes is consistent with the characterization for income tax purposes of the Agent, acquisition by the Managing Agents Purchasers of Purchaser Interests as a loan or loans by the Purchasers to any Seller Party in respect of any representations or warranties made under or in connection with this Agreement secured by any Seller Party. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(iv) any representation or warranty made by any Seller Party, Performance Guarantor, or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(v) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(vi) any failure of Seller, the Servicer, Performance Guarantor, or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality);
(vii) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parenthetical, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ix) the commingling of Collections of Receivables at any time with other funds;
(x) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xi) 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;
(xii) any Amortization Event described in Section 9.1(d);
(xiii) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documents); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xiv) any failure to vest and maintain vested in the Agent, for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security Security, the Securitization Accounts and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any Purchaser);
(xv) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xvi) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xvii) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action;
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. (a) Without limiting any other rights that the Collateral Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Collateral Agent, each the Managing Agent Agents and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Collateral Agent, such the Managing Agent Agents or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of any breach by the Servicer’s activities Servicer (whether in its capacity as Servicer or in its capacity as Originator) of a representation, warranty, covenant or obligation made by the Servicer hereunder (or under any other Transaction Documents) Document excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(iw) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iix) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness financial inability to pay of the related Obligor; and;
(iiiy) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; or
(z) any claim by any Indemnified Party against another Indemnified Party; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Collateral Agent, the Managing Agent and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, subject to clause (x) in the preceding paragraph, but otherwise regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any the Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by any Seller, the Servicer or any the Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any the Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any the Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury injury, damage or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any ReceivableContract;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestmentpurchase, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d8.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any the Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, for the benefit of the Managing Agents Collateral Agent and the Purchasers, or to transfer to the Agent, for the benefit of the Managing Agents Collateral Agent and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any Purchaser)Claim;
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Collateral Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;; and
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) each of Seller and Servicer hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing foregoing, together with the exclusions set forth below, being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxes; taxes imposed by any jurisdiction in which such Indemnified Party is subject to taxation, on or measured by the overall net income of such Indemnified Party (a) to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent and the Purchasers for Indemnified Amounts (including, without limitation, including losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any the Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by any Seller, the Servicer or any the Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any the Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any the Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parenthetical, including a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any the Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such the Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such the Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections (except as relates to the Excepted Contracts) with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvi) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xvii) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action;
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(iv) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(v) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(vi) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(vii) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viii) any dispute, claim, offset or defense (other than discharge in bankruptcy bankruptcy, or suspension of payments due to the bankruptcy, of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ix) the commingling of Collections of Receivables at any time with other funds;
(x) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xi) 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;
(xii) any Amortization Event described in Section 9.1(d);
(xiii) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xiv) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xv) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvi) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xvii) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (School Specialty Inc)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) the Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iii) Indemnified Amounts to the extent arising from the same includes losses acts or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; and
(iii) Excluded Taxes; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect of any representations or warranties made under or in connection with this Agreement by any Seller Party. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(iv) any representation or warranty made by any Seller Party, Performance Guarantor, or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence omissions of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed madesuccessor Servicer;
(v) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(vi) any failure of Seller, the Servicer, Performance Guarantor, or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality);
(vii) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parenthetical, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ix) the commingling of Collections of Receivables at any time with other funds;
(x) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xi) 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;
(xii) any Amortization Event described in Section 9.1(d);
(xiii) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documents); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xiv) any failure to vest and maintain vested in the Agent, for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any Purchaser);
(xv) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xvi) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xvii) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action;
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Navistar Financial Retail Receivables Corporation)
Indemnities by the Seller Parties. Without limiting any other rights that the Administrative Agent, any Managing Agent Agent, any L/C Issuer, any Funding Source or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Administrative Agent, each Managing Agent Agent, each Funding Source, each L/C Issuer and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costscosts or expenses, expenses for any increased capital charges due to a breach of any representation or warranty under Section 5.1(cc) hereof and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser or an L/C Issuer of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnificationindemnification or material breach by such Indemnified Party of the express terms of the Transaction Documents;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes 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 Purchases by the Administrative Agent, for the benefit of the Purchasers and L/C Issuers as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents Purchasers or the Purchasers L/C Issuers to any Seller Party in respect Party, any Originator or Marathon for amounts otherwise specifically provided to be paid by such Seller Party, any Originator or Marathon, as applicable, under the terms of any representations or warranties made under or in connection with this Agreement by or any Seller Partyother Transaction Document. Without limiting the generality of the foregoing indemnification, but subject to the exclusions set forth in clauses (i) through (iii) above, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, or any Originator or Marathon (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other written information or report delivered by any such Person pursuant hereto or thereto, including, without limitation, the representations and warranties under Section 5.1(cc) hereof, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or Servicer, any Originator or Marathon to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, or any Originator or Marathon to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase a Credit Event or a Reinvestmentdraw under any Letter of Credit, the ownership of the Purchaser Interests Interest or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, or any Originator or Marathon in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any OriginatorMPC LP, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); , or any failure of Seller to give reasonably equivalent value to such Originator MPC LP under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator MPC LP of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Administrative Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Administrative Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests Interest contemplated hereunder) or security interest in the Receivables, the Related Security and the CollectionsCollections and the Collection Accounts and Lock-Boxes, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Purchase Credit Event or at any subsequent time;
(xvixiii) any action or omission (other than as expressly contemplated by this Agreement or any other Principal Transaction Document) by any Seller Party Party, any Originator or Marathon which reduces or impairs the rights of the Administrative Agent, the Managing Agents Agents, the L/C Issuers or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Purchase Credit Event hereunder under statutory provisions or common law or equitable action;
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;; or
(xixxvi) any dispute, suit Letter of Credit issued in connection herewith or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment use of the rights to payment of any Originator proceeds thereof by the applicable beneficiary or any of its assignees under such Contract affiliate, agent, employee or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreementassignee thereof. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT, includingIN WHOLE OR IN PART, without limitationCAUSED BY ANY NEGLIGENT ACT OR OMISSION OF ANY L/C ISSUER, the right to review such Contract; and
(xx) the failure to pay when due any taxesANY PURCHASER, including without limitationTHE ADMINISTRATIVE AGENT, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded TaxesANY MANAGING AGENT OR THEIR RESPECTIVE AFFILIATES.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Marathon Petroleum Corp)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) each of the Agent, each Managing Agent Agents and each Purchaser Purchasers and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) hereunder, excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agents and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect in any respect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any the applicable Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Administrative Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Administrative Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any --------------------------------- other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) the Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against ----------------- any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded ------------------- against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):): -------------------
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent arising from the acts or omissions of a successor Servicer;
(iii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account uncollectible; or
(iv) taxes imposed by any jurisdiction in which such Indemnified Party is or would be subject to tax (unless such tax arises solely as a result of the insolvency, bankruptcy transactions contemplated by this Agreement) on or lack measured by the overall net income of creditworthiness such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the related Obligor; and
(iii) Excluded Taxesacquisition by the Purchasers of interests in the Purchaser Interest as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, and the Designated Accounts; provided, however, that nothing contained in this sentence shall limit the -------- ------- liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(iva) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any the Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vb) the failure by Seller, the Servicer or any the Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any the Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(vic) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any the Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viid) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiie) any dispute, claim, counterclaim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixf) the commingling of Collections of Receivables at any time with other funds;
(xg) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestmentpurchase, the ownership of the Purchaser Interests Interest or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xih) 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;
(xii) any Amortization Event described in Section 9.1(d);
(xiiii) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any the Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such the Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such the Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivj) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests Interest contemplated hereunder) or security interest in the Receivables, Receivables and the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvk) 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, Receivable and the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent timeSecurity;
(xvil) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviim) any attempt by any Person to void any Purchase the purchase of the Purchaser Interest hereunder under statutory provisions or common law or equitable action;
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xxn) any claim by any party arising from the failure to pay when due activities of the Seller or Servicer in administering, servicing or collecting any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded TaxesReceivable.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Navistar Financial Retail Receivables Corporation)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) the Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent arising from the acts or omissions of a successor Servicer;
(iii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account uncollectible; or
(iv) taxes imposed by any jurisdiction in which such Indemnified Party is or would be subject to tax (unless such tax arises solely as a result of the insolvency, bankruptcy transactions contemplated by this Agreement) on or lack measured by the overall net income of creditworthiness such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the related Obligor; and
(iii) Excluded Taxesacquisition by the Purchasers of interests in the Purchaser Interest as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, and the Designated Accounts; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(iva) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any the Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vb) the failure by Seller, the Servicer or any the Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any the Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(vic) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any the Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viid) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiie) any dispute, claim, counterclaim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixf) the commingling of Collections of Receivables at any time with other funds;
(xg) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestmentpurchase, the ownership of the Purchaser Interests Interest or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xih) 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;
(xii) any Amortization Event described in Section 9.1(d);
(xiiii) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any the Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such the Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such the Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivj) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests Interest contemplated hereunder) or security interest in the Receivables, Receivables and the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvk) 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, Receivable and the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent timeSecurity;
(xvil) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviim) any attempt by any Person to void any Purchase the purchase of the Purchaser Interest hereunder under statutory provisions or common law or equitable action;
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xxn) any claim by any party arising from the failure to pay when due activities of the Seller or Servicer in administering, servicing or collecting any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded TaxesReceivable.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Navistar Financial Retail Receivables Corp)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each the Managing Agent Agents and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent, the Managing Agents and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;; 31
(xviixiv) any attempt by any Person Person, other than a Purchaser, to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Anixter International Inc)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any the Managing Agent Agents or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and Agent, each Purchaser and any Related CP Issuer and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent Agent, such Purchaser or such PurchaserRelated CP Issuer) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the United States or the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller or Servicer, as applicable, shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the an Obligor) of the an Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any OriginatorInsight, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such an Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Eligible Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Insight Enterprises Inc)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective its assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) this Agreement excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes 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 Purchaser of Purchaser Interests as a loan or loans by the Purchaser to Seller secured by the Receivables, the Related Security and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers Purchaser to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Purchaser for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivablesreceivables for matters specifically described below, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, or any Originator Torchmark Entity (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator Torchmark Entity to comply with any applicable law, rule rule, regulation, agreement (including any confidentiality agreement), order, writ, judgment, injunction, decree or regulation award, including with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator Torchmark Entity to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, or any Originator Torchmark Entity to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury liability or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any ReceivableContract;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestmentpurchase, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, or any Originator Torchmark Entity in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d7.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originatorthereto, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator AIL under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator AIL of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, for the benefit of the Managing Agents and the PurchasersPurchaser, or to transfer to the Agent, for the benefit of the Managing Agents and the PurchasersPurchaser, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any Purchaser)Claim;
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party Torchmark Entity which reduces or impairs the rights of the Agent, the Managing Agents or the Purchasers Purchaser with respect to any Receivable or the value of any such Receivable;
(xviixiv) any action or omission by any Insurance Agent or any member of an Agent-Hierarchy which (A) reduces or impairs the rights of the Purchaser with respect to any Receivable or the value of any such Receivable and (B) does not entail the commencement by such Insurance Agent or member of any bankruptcy or insolvency proceeding or any other action or omission (including any failure to pay) by reason of the lack of creditworthiness or ability to pay on the part of such Insurance Agent or Agent-Hierarchy; and
(xv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser Blue Ridge may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, Blue Ridge, each Managing Agent of the Liquidity Banks and each Purchaser and their of the respective assigns, officers, directors, agents and employees of the foregoing (each each, an “Indemnified Party”"INDEMNIFIED PARTY") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaseranother Indemnified Party) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”"INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser Blue Ridge or any of its Liquidity Banks of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excludingEXCLUDING, howeverHOWEVER, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxesall income taxes except in jurisdictions where Indemnified Parties would not otherwise be subject to taxation but for the transactions contemplated by the Transaction Documents; providedPROVIDED, howeverHOWEVER, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers Blue Ridge to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent and Blue Ridge for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestmentany Purchase, the ownership of the Purchaser Interests Purchased Assets or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event of the type described in Section 9.1(d9.1(g);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and of the Related Security and Collections with respect thereto Purchased Assets from any the applicable Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such any Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the PurchasersBlue Ridge, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership ofSecured Parties, a valid first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest interests in the Receivables, the Related Security and the CollectionsPurchased Assets, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any material delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect theretoPurchased Assets, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers Blue Ridge with respect to any Receivable Purchased Assets or the value of any such ReceivablePurchased Assets;
(xviixiv) any attempt by any Person to void any Purchase hereunder or the Agent's security interest in the Purchased Assets under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Tower Automotive Inc)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) each of the Agent, each Managing Agent Agents and each Purchaser Purchasers and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) hereunder, excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agents and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, or any Originator (or any officers of any such Person) or the Performance Guarantor under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect in any respect when made or deemed made;
(vii) the failure by Seller, the Servicer or Servicer, any Originator or the Performance Guarantor to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, or any Originator or the Performance Guarantor to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other the Transaction DocumentDocuments, the transactions contemplated herebythereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any the applicable Originator, free and clear of any Adverse Claim (other than as Adverse Claims created under the Transaction DocumentsDocuments and the Second Lien Adverse Claims); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Administrative Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Administrative Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as for Adverse Claims created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserSecond Lien Adverse Claims);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any the Managing Agent Agents or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent and, each Managing Agent, each Managing Agent Purchaser and each Purchaser any Related CP Issuer and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent or, such Managing Agent, such Managing Agent Purchaser or such PurchaserRelated CP Issuer) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the United States or the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller or Servicer, as applicable, shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the an Obligor) of the an Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any OriginatorInsight, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such an Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Eligible Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Amendment (Insight Enterprises Inc)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Administrative Agent or any Purchaser Blue Ridge may have hereunder or under applicable law, (Aa) Seller hereby agrees to indemnify (and pay upon demand to) the Administrative Agent, Blue Ridge, each Managing Agent of the Liquidity Banks and each Purchaser and their of the respective assigns, officers, directors, agents and employees of the foregoing (each each, an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Administrative Agent or such Purchaseranother Indemnified Party) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser Blue Ridge or any of its Liquidity Banks of an interest in the Receivables, and (Bb) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (Aa) and (Bb):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes 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 Blue Ridge of Receivables as a loan or loans by Blue Ridge to Seller secured by the Receivables, the Related Security, the Blocked Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers Blue Ridge to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Administrative Agent and Blue Ridge for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any the Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any the Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any the Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any the Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestmentany Purchase, the ownership of the Purchaser Interests Purchased Assets or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event of the type described in Section 9.1(d9.1(g);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and of the Related Security and Collections with respect thereto Purchased Assets from any the Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such the Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such the Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Administrative Agent for the benefit of the Managing Agents and the PurchasersBlue Ridge, or to transfer to the Agent, Administrative Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership ofSecured Parties, a valid first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the CollectionsPurchased Assets, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect theretoPurchased Assets, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Administrative Agent or the Purchasers Blue Ridge with respect to any Receivable Purchased Assets or the value of any such ReceivablePurchased Assets;
(xviixiv) any attempt by any Person to void any Purchase hereunder or the Administrative Agent's security interest, for the benefit of the Secured Parties, in the Purchased Assets under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”"INDEMNIFIED PARTY") from and against any and all damages, losses, claims, taxes, liabilities, reasonable costs, reasonable expenses and for all other reasonable amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”"INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand within fifteen days to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or negligence, willful misconduct or breach of contract on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; and;
(iii) Excluded Taxes; provided, however, that nothing contained in this sentence shall limit taxes imposed by the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect of any representations or warranties made under or in connection with this Agreement by any Seller Party. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(iv) any representation or warranty made by any Seller Party, Performance Guarantor, or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(v) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(vi) any failure of Seller, the Servicer, Performance Guarantor, or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality);
(vii) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parenthetical, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ix) the commingling of Collections of Receivables at any time with other funds;
(x) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, or any Originator jurisdiction in which any such Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xi) 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 Party's principal executive office is located, on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(xii) any Amortization Event described in Section 9.1(d);
(xiii) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documents); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xiv) any failure to vest and maintain vested in the Agent, for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created measured by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any Purchaser);
(xv) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xvi) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xvii) any attempt by any Person to void any Purchase hereunder under statutory provisions or common law or equitable action;
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.overall net
Appears in 1 contract
Samples: Receivables Purchase Agreement (Omnova Solutions Inc)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):specified in this Section 10.1:
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(iv) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(v) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(vi) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(vii) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ix) the commingling of Collections of Receivables at any time with other funds;
(x) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xi) 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;
(xii) any Amortization Event described in Section 9.1(d);
(xiii) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any OriginatorSelling Subsidiary, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator Selling Subsidiary under the applicable Receivables SMC Sale Agreement in consideration of the transfer by such Originator Selling Subsidiary of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xiv) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xv) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvi) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xvii) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Financing Agreement (Syncor International Corp /De/)
Indemnities by the Seller Parties. Without limiting any --------------------------------- other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, ----------------- losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred ------------------- by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) this Agreement excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security and the Collections; provided, however, that nothing contained in this sentence shall limit the -------- ------- liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivablesreceivables for matters specifically described below, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, or any Originator Torchmark Entity (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator Torchmark Entity to comply with any applicable law, rule rule, regulation, agreement (including any confidentiality agreement), order, writ, judgment, injunction, decree or regulation award, including with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator Torchmark Entity to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, or any Originator Torchmark Entity to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury liability or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any ReceivableContract;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestmentpurchase, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, or any Originator Torchmark Entity in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);; --------------
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originatorthereto, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator AIL under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator AIL of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, for the benefit of the Managing Agents Agent and the Purchasers, or to transfer to the Agent, for the benefit of the Managing Agents Agent and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any Purchaser)Claim;
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party Torchmark Entity which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any action or omission by any Insurance Agent or any member of an Agent-Hierarchy which (A) reduces or impairs the rights of the Agent or the Purchasers with respect to any Receivable or the value of any such Receivable and (B) does not entail the commencement by such Insurance Agent or member of any bankruptcy or insolvency proceeding or any other action or omission (including any failure to pay) by reason of the lack of creditworthiness or ability to pay on the part of such Insurance Agent or Agent-Hierarchy; and
(xv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any ---------------------------------- other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all ----------------- damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded ------------------- against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the --------- -------- liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any ----- Seller Party in respect for amounts otherwise specifically provided to be paid by such --- Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality --- of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Provider or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer Servicer, Provider or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Provider or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Provider or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);; ---------------
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party or Provider which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Energizer Holdings Inc)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent Funding Agent, each Funding Source and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent Funding Agent, such Funding Source or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the ofthe Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Provider or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer Servicer, Provider or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, ,the Servicer, Performance Guarantor, Provider or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Provider or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party or Provider which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Energizer Holdings Inc)
Indemnities by the Seller Parties. Without limiting any other rights that the Administrative Agent, any Managing Agent Agent, any L/C Issuer, any Funding Source or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Administrative Agent, each Managing Agent Agent, each Funding Source, each L/C Issuer and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costscosts or expenses, expenses for any increased capital charges due to a breach of any representation or warranty under Section 5.1(cc) hereof and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser or an L/C Issuer of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnificationindemnification or material breach by such Indemnified Party of the express terms of the Transaction Documents;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes 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 Purchases by the Administrative Agent, for the benefit of the Purchasers and L/C Issuers as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents Purchasers or the Purchasers L/C Issuers to any Seller Party in respect Party, Originator or Marathon for amounts otherwise specifically provided to be paid by such Seller Party, Originator or Marathon, as applicable, under the terms of any representations or warranties made under or in connection with this Agreement by or any Seller Partyother Transaction Document. Without limiting the generality of the foregoing indemnification, but subject to the exclusions set forth in clauses (i) through (iii) above, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Originator or any Originator Marathon (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other written information or report delivered by any such Person pursuant hereto or thereto, including, without limitation, the representations and warranties under Section 5.1(cc) hereof, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer Servicer, Originator or any Originator Marathon to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Originator or any Originator Marathon to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase a Credit Event or a Reinvestmentdraw under any Letter of Credit, the ownership of the Purchaser Interests Interest or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Originator or any Originator Marathon in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Administrative Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Administrative Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests Interest contemplated hereunder) or security interest in the Receivables, the Related Security and the CollectionsCollections and the Collection Accounts and Lock-Boxes, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Purchase Credit Event or at any subsequent time;
(xvixiii) any action or omission (other than as expressly contemplated by this Agreement or any other Principal Transaction Document) by any Seller Party Party, Originator or Marathon which reduces or impairs the rights of the Administrative Agent, the Managing Agents Agents, the L/C Issuers or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Purchase Credit Event hereunder under statutory provisions or common law or equitable action;
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;; or
(xixxvi) any dispute, suit Letter of Credit issued in connection herewith or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment use of the rights to payment of any Originator proceeds thereof by the applicable beneficiary or any of its assignees under such Contract affiliate, agent, employee or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreementassignee thereof. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT, includingIN WHOLE OR IN PART, without limitationCAUSED BY ANY NEGLIGENT ACT OR OMISSION OF ANY L/C ISSUER, the right to review such Contract; and
(xx) the failure to pay when due any taxesANY PURCHASER, including without limitationTHE ADMINISTRATIVE AGENT, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded TaxesANY MANAGING AGENT OR THEIR RESPECTIVE AFFILIATES.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Marathon Petroleum Corp)
Indemnities by the Seller Parties. Without limiting any other rights that the Administrative Agent, any Managing Agent the Agents or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Administrative Agent, each Managing Agent Agent, each Funding Source and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Administrative Agent, such Managing Agent Agent, such Funding Source or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance GuarantorProvider, Originator, or any Originator Original Seller (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer Servicer, Provider, Originator, or any Originator Original Seller to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of Originator or any Originator Original Seller to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance GuarantorProvider, Originator or any Originator Original Seller to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance GuarantorProvider, Originator or any Originator Original Seller in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Administrative Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Administrative Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) any failure of Originator to acquire from any Original Seller and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto, free and clear of any Adverse Claim (other than as created by the Transaction Documents); or any failure of Originator to give reasonably equivalent value to any Original Seller under the Transfer Agreement in consideration of the transfer by such Original Seller of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xiii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiv) any action or omission by any Seller Party or Provider which reduces or impairs the rights of the Administrative Agent, the Managing Agents or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixvi) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Energizer Holdings Inc)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective Affiliates, successors, assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement Agreement, any other Transaction Document or the transactions contemplated by any Transaction Document, or any Receivable, Contract or Related Security, or the use of the proceeds of any purchase or advance hereunder, or the acquisition, funding or ownership, either directly or indirectly, by a Purchaser of a Purchaser Interest or an interest in the Receivables, the Contract or any Related Security and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any other Transaction Documents) Document excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes imposed by the United States federal government or the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net or gross income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by or any Seller Partyother Transaction Document. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated herebyhereby or thereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated herebyhereby or by any other Transaction Document;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable actionaction and;
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Puget Sound Energy Inc)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s its activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes imposed by the United States, by the jurisdiction in which such Indemnified Party's principal executive office is located, or by any other jurisdiction in the United States where such Indemnified Party has established a taxable nexus other than in connection with the transactions contemplated by this Agreement, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections, but not including any such taxes resulting from the adoption after the date hereof of any law or any amendment or change in the interpretation of any existing or future law that subjects such Indemnified Party to taxes that would not be imposed by any law or the interpretation thereof existing on the date hereof (except for changes in the rate of such taxes); provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller and Servicer shall indemnify each the Indemnified Party Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator Transferor (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator Transferor to comply with any applicable law, rule or regulation with respect to any Receivable Receivable, Contract or Contract Invoice related thereto, or the nonconformity of any Receivable Receivable, Contract or Contract Invoice included therein with any such applicable law, rule or regulation or any failure of any Originator Transferor to keep or perform any of its obligations, express or implied, with respect to any ContractContract or Invoice;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator Transferor to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract Contract, Invoice or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Invoice or Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator Transferor in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originatorthe applicable Transferor, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator a Transferor under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator Transferor of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent timelaws;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;
(xviiixv) the operations of Jabil Mexico, Jabil Chihuahua or Jabil Reynosa and the enforcement of the Agent's and the Purchaser's rights under either Estoppel Letter; and
(xvi) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing SLOT Agent or any the SLOT Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and subject to the Intercreditor Agreement, pay upon demand to) each of the Agent, each Managing SLOT Agent and each the SLOT Purchaser and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing SLOT Agent or such the SLOT Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a the SLOT Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) hereunder, excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes 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 SLOT Purchaser of SLOT Interests as a loan or loans by the SLOT Purchaser to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers SLOT Purchaser to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the SLOT Agent and the SLOT Purchaser for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, or any Originator (or any officers of any such Person) or the Performance Guarantor under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect in any respect when made or deemed made;
(vii) the failure by Seller, the Servicer or Servicer, any Originator or the Performance Guarantor to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, or any Originator or the Performance Guarantor to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other the Transaction DocumentDocuments, the transactions contemplated herebythereby, the use of the proceeds of an Incremental SLOT Purchase or a Reinvestment, the ownership of the Purchaser SLOT Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any the applicable Originator, free and clear of any Adverse Claim (other than as Adverse Claims created under the Transaction DocumentsDocuments and the First Lien Adverse Claims); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, SLOT Agent for the benefit of the Managing Agents and the PurchasersSLOT Purchaser, or to transfer to the Agent, SLOT Agent for the benefit of the Managing Agents and the PurchasersSLOT Purchaser, legal and equitable title to, and ownership of, a first second priority perfected undivided percentage ownership interest (to the extent of the Purchaser SLOT Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as for Adverse Claims created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserFirst Lien Adverse Claims);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental SLOT Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents SLOT Agent or the Purchasers SLOT Purchaser with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental SLOT Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent the L/C Issuer and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser or the L/C Issuer of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxes; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents Purchasers or the Purchasers L/C Issuer to any Seller Party in respect of any representations or warranties made under or in connection with this Agreement by any Seller Party. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documents); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents Purchasers and the PurchasersL/C Issuer, or to transfer to the Agent, Agent for the benefit of the Managing Agents Purchasers and the PurchasersL/C Issuer, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Purchase Credit Event or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents L/C Issuer or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Purchase Credit Event hereunder under statutory provisions or common law or equitable action;
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) the Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent arising from the acts or omissions of a successor Servicer;
(iii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account uncollectible; or
(iv) taxes imposed by any jurisdiction in which such Indemnified Party is or would be subject to tax (unless such tax arises solely as a result of the insolvency, bankruptcy transactions contemplated by this Agreement) on or lack measured by the overall net income of creditworthiness such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the related Obligor; and
(iii) Excluded Taxesacquisition by the Purchasers of interests in the Purchaser Interest as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, and the Designated Accounts; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agent and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(iva) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any the Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vb) the failure by Seller, the Servicer or any the Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any the Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(vic) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any the Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viid) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiie) any dispute, claim, counterclaim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixf) the commingling of Collections of Receivables at any time with other funds;
(xg) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestmentpurchase, the ownership of the Purchaser Interests Interest or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xih) 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;
(xii) any Amortization Event described in Section 9.1(d);
(xiiii) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any the Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such the Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such the Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivj) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests Interest contemplated hereunder) or security interest in the Receivables, Receivables and the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvk) 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, Receivable and the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent timeSecurity;
(xvil) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviim) any attempt by any Person to void any Purchase the purchase of the Purchaser Interest hereunder under statutory provisions or common law or equitable action;
(xviii) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xxn) any claim by any party arising from the failure to pay when due activities of the Seller or Servicer in administering, servicing or collecting any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded TaxesReceivable.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Navistar Financial Corp)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the United States or the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller or Servicer, as applicable, shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the an Obligor) of the an Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any OriginatorInsight, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such an Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Eligible Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Insight Enterprises Inc)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Administrative Agent or any Purchaser Blue Ridge may have hereunder or under applicable law, (Aa) the Seller hereby agrees to indemnify (and pay upon demand to) the Administrative Agent, Blue Ridge, each Managing Agent of the Liquidity Banks and each Purchaser and their of the respective assigns, officers, directors, agents and employees of the foregoing (each each, an “Indemnified Party”"INDEMNIFIED PARTY") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Administrative Agent or such Purchaseranother Indemnified Party) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”"INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser Blue Ridge or any of its Liquidity Banks of an interest in the Receivables, and (Bb) the Master Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Master Servicer’s 's activities as Master Servicer hereunder (or under any Transaction Documents) excludingEXCLUDING, howeverHOWEVER, in all of the foregoing instances under the preceding clauses CLAUSES (Aa) and (Bb):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes 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 Blue Ridge of Receivables as a loan or loans by Blue Ridge to the Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; providedPROVIDED, howeverHOWEVER, that nothing contained in this sentence shall limit the liability of any the Seller Party or limit the recourse of Blue Ridge to the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by the Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, the Seller shall indemnify each Indemnified Party the Administrative Agent and Blue Ridge for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to the Seller or the Master Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any the Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by the Seller, the Master Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of the Seller, the Servicer, Performance Guarantor, Master Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestmentany Purchase, the ownership of the Purchaser Interests Purchased Assets or any other investigation, litigation or proceeding relating to the Seller, the Servicer, Performance Guarantor, Master Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Liquidation Event of the type described in Section 9.1(dSECTION 9.1(g);
(xiiix) any failure of the Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and of the Related Security and Collections with respect thereto Purchased Assets from any Originatorthe T&B Corp., free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of the Seller to give reasonably equivalent value to such Originator T&B Corp. under the applicable Receivables Sale Contribution Agreement in consideration of the transfer by such Originator T&B Corp. of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Administrative Agent for the benefit of the Managing Agents and the PurchasersBlue Ridge, or to transfer to the Agent, Administrative Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership ofSecured Parties, a valid first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest interests in the Receivables, the Related Security and the CollectionsPurchased Assets, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect theretoPurchased Assets, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xvixiii) any action or omission by any the Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Administrative Agent or the Purchasers Blue Ridge with respect to any Receivable Purchased Assets or the value of any such ReceivablePurchased Assets;
(xviixiv) any attempt by any Person to void any Purchase hereunder or the Administrative Agent's security interest in the Purchased Assets under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Thomas & Betts Corp)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser Blue Ridge may have hereunder or under applicable law, (Aa) the Seller hereby agrees to indemnify (and pay upon demand to) the Agent, Blue Ridge, each Managing Agent of the Liquidity Banks and each Purchaser and their of the respective assigns, officers, directors, agents and employees of the foregoing (each each, an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser Blue Ridge or any of its Liquidity Banks of an interest in the Receivables, and (Bb) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (Aa) and (Bb):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iii) Excluded Taxestaxes imposed by the United States, the Indemnified Party's jurisdiction of organization (or in the case of an individual, primary resident) or any other jurisdiction in which such Indemnified Party has established a taxable nexus other than in connection with the transactions contemplated hereby, 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 Blue Ridge of Receivables as a loan or loans by Blue Ridge to the Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any the Seller Party Parties or limit the recourse of Blue Ridge to the Agent, Seller Parties for amounts otherwise specifically provided to be paid by the Managing Agents or Seller Parties under the Purchasers to any Seller Party in respect terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, the Seller shall indemnify each Indemnified Party the Agent and Blue Ridge for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to the Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any a Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by the Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any the Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of the Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestmentany Purchase, the ownership of the Purchaser Interests Purchased Assets or any other investigation, litigation or proceeding relating to the Seller, the Servicer, Performance Guarantor, Servicer or any the Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event of the type described in Section 9.1(d9.1(g);
(xiiix) any failure of the Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and of the Related Security and Collections with respect thereto Purchased Assets from any the applicable Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of the Seller to give reasonably equivalent value to such any Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable actionaction (except as created by the Transaction Documents);
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the PurchasersBlue Ridge, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership ofSecured Parties, a valid first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest interests in the Receivables, the Related Security and the CollectionsPurchased Assets, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect theretoPurchased Assets, and the proceeds of any thereof, whether at the time of any Purchase or at any subsequent time;
(xvixiii) any action or omission by any a Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers Blue Ridge with respect to any Receivable Purchased Assets or the value of any such ReceivablePurchased Assets;
(xviixiv) any attempt by any Person to void any Purchase hereunder or the Agent's security interest in the Purchased Assets under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Arch Chemicals Inc)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “"Indemnified Party”") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ ' fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s 's activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller Seller, the Servicer or the ServicerPerformance Guarantor) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any an Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any the applicable Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such each Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Lennox International Inc)
Indemnities by the Seller Parties. Without limiting any other rights that any of the Agent, any Managing Agent Agents or any Purchaser Purchasers may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) each of the Agent, each Managing Agent Agents and each Purchaser Purchasers and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables and Related Security; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party the Agents and the Purchasers for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of all or any Receivable and portion of the Related Security and Collections with respect thereto Receivables from any the applicable Originator, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such Originator under the applicable Receivables Receivable Sale Agreement in consideration of the transfer by such Originator of any Receivableportion of the Receivables, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Administrative Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Administrative Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Receivables and Related Security and the CollectionsSecurity, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect theretoReceivables, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
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Samples: Receivables Purchase Agreement (Ferrellgas Partners Finance Corp)
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any Managing Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Managing Agent and each Purchaser and their respective assigns, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of the Agent, such Managing Agent or such Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of the Servicer’s activities as Servicer hereunder (or under any Transaction Documents) excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(ia) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from bad faith, gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(iib) Indemnified Amounts to the extent the same includes losses or other Indemnified Amounts in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; andor
(iiic) Excluded Taxestaxes imposed by the United States or the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections; provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Agent, the Managing Agents or the Purchasers to any Seller Party in respect for amounts otherwise specifically provided to be paid by such Seller Party under the terms of any representations or warranties made under or in connection with this Agreement by any Seller PartyAgreement. Without limiting the generality of the foregoing indemnification, Seller or Servicer, as applicable, shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(ivi) any representation or warranty made by any Seller Party, Performance Guarantor, Party or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(vii) the failure by Seller, the Servicer or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(viiii) any failure of Seller, the Servicer, Performance Guarantor, Servicer or any Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document (in any case, without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality)Document;
(viiiv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(viiiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the an Obligor) of the an Obligor to the payment of any Receivable (including, without limitation but subject to the foregoing parentheticallimitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(ixvi) the commingling of Collections of Receivables at any time with other funds;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Performance Guarantor, Servicer or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xiviii) 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;
(xiiix) any Amortization Event described in Section 9.1(d);
(xiiix) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any OriginatorInsight, free and clear of any Adverse Claim (other than as created under the Transaction Documentshereunder); or any failure of Seller to give reasonably equivalent value to such an Originator under the applicable Receivables Sale Agreement in consideration of the transfer by such Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xivxi) any failure to vest and maintain vested in the Agent, Agent for the benefit of the Managing Agents and the Purchasers, or to transfer to the Agent, Agent for the benefit of the Managing Agents and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except (1) as created by the Transaction Documents and (2) as created by or as a result of laws applicable to the Agent, any Managing Agent or any PurchaserDocuments);
(xvxii) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xvixiii) any action or omission by any Seller Party which reduces or impairs the rights of the Agent, the Managing Agents Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xviixiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action;; and
(xviiixv) the failure of any Receivable included in the calculation of the Net Eligible Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included;
(xix) any dispute, suit or claim arising out of any provision in any Contract which (A) restricts or prohibits, or requires the Obligor’s consent to, the transfer, sale or assignment of the rights to payment of any Originator or any of its assignees under such Contract or (B) contains a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, the right to review such Contract; and
(xx) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes, payable by Seller, Servicer or any Originator in connection with the Receivables, other than Excluded Taxes.
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