Indemnities by the Seller. Without limiting any other rights which the Agent, the Owner, Citibank or CNAI or any Affiliate thereof may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), awarded against or incurred by any of them arising out of or as a result of this Agreement or the ownership of Eligible Assets or in respect of any Receivable or any Contract, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting from: (i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable; (ii) reliance on any representation or warranty made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report or any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which shall have been false or incorrect in any material respect when made or deemed made; (iii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule or regulation; (iv) the failure to vest in the Owner of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables in, or purporting to be in, the Receivables Pool, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h); (v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent time; (vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables; (vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services; (viii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI; (ix) any products liability claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract; (x) the commingling of Collections of Pool Receivables at any time with other funds; (xi) the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or (xii) any breakage and other expenses, if any, of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; or
Appears in 2 contracts
Samples: Trade Receivables Purchase and Sale Agreement (Detroit Edison Co), Trade Receivables Purchase and Sale Agreement (Detroit Edison Securitization Funding LLC)
Indemnities by the Seller. (a) Without limiting any other rights which that the AgentPurchaser, the Owner, Citibank or CNAI Administrative Agent or any Affiliate thereof of their respective officers, directors, employees, attorneys, agents or representatives (each, an "Indemnified Person") may have hereunder or under applicable law, the Seller hereby agrees to indemnify and hold harmless each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Person from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), awarded Amounts that may be claimed or asserted against or incurred by any such Indemnified Person in connection with or arising out of them the transactions contemplated under this Agreement or under any other Related Document or any actions or failures to act in connection therewith, including any and all legal costs and expenses arising out of or as a result incurred in connection with disputes between or among any parties to any of this Agreement or the ownership of Eligible Assets or in respect of Related Documents; provided that the Seller shall not be liable for any Receivable or indemnification to an Indemnified Person to the extent that any Contract, excluding, however, such Indemnified Amount (x) results from (i) such Indemnified Amounts to the extent resulting from Person's gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) such Indemnified Person's willful misconduct, in each case as finally determined by a court of competent jurisdiction or (y) constitutes recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivablesor uncollected Transferred Receivables and the Related Security. Without limiting the generality of the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof each Indemnified Person any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report Agreement or any other Related Document or on any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which thereto that shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iiiii) the failure by the Seller to comply with any term, provision or covenant contained in this Agreement, any other Related Document or any agreement executed in connection herewith or therewith, any applicable law, rule or regulation with respect to any Pool Transferred Receivable or the related ContractRelated Security, or the nonconformity of any Pool Transferred Receivable or the related Contract Related Security with any such applicable law, rule or regulation;; or
(iv1) the failure to vest and maintain vested in the Owner Seller or the Administrative Agent valid and properly perfected title to and sole record and beneficial ownership of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables inand the Related Security that constitute Transferred Receivables and the Related Security, or purporting to be intogether with all Collections in respect thereof, the free
A. M. Castle & Co. et al. and Castle SPFD, LLC, Receivables Pool, free Purchase and Servicing Agreement and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h);
and (v2) the failure to filemaintain or transfer to the Administrative Agent for the benefit of the Purchaser a first, or any delay priority, perfected Lien in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent timeSeller Collateral;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(viiiv) any dispute, claim, offset or defense of any Obligor (other than its discharge in bankruptcy of the Obligorbankruptcy) of the Obligor to the payment of any Transferred Receivable in, or purporting to be in, the Receivables Pool Related Security that is the subject of a Purchase hereunder (including, without limitation, including a defense based on such Receivable or the related Contract Related Security not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related giving rise to such Receivable or the furnishing of or failure to furnish such merchandise or servicesservices or relating to collection activities with respect to such Receivable or the Related Security (if such collection activities were performed by any of its Affiliates acting as Servicer), except to the extent that such dispute, claim, offset or defense results solely from any action or inaction on the part of any Indemnified Person or is otherwise based on the inability of the Obligor to pay;
(viii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ixv) any products liability claim or other claim arising out of or in connection with merchandise, insurance or services which are that is the subject of any ContractContract with respect to any Transferred Receivable;
(xvi) the commingling of Collections of Pool with respect to Transferred Receivables by the Seller at any time with its other fundsfunds or the funds of any other Person;
(xivii) any failure by the enforcement Seller to cause the filing of, or legal recognition any delay in filing, financing statements or other similar instruments or documents under the UCC of any prior interest under the Mortgage in applicable jurisdiction or any other applicable laws with respect to any Receivables Transferred Receivable or the proceeds thereofRelated Security that is the subject of a Purchase hereunder, whether at the time of any such Purchase or at any subsequent time; or
(xiiviii) any breakage and other expenses, if any, failure of a Lockbox Account Bank or a Concentration Account Bank to comply with the terms of the Investor or applicable Lockbox Agreement.
(b) Any Indemnified Amounts subject to the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) indemnification provisions of interest rate swaps, collars, forward agreements and future contracts this Section 12.01 not paid in connection accordance with Article VI shall be paid by the funding or maintenance of any Eligible Asset and Seller to the costs and expenses specifically set forth in the definition of Fixed Rate; orIndemnified Person entitled thereto within five Business Days following demand therefor.
Appears in 1 contract
Samples: Receivables Purchase and Servicing Agreement (Castle a M & Co)
Indemnities by the Seller. 21.2.1 Without limiting any other rights which the Agent, Transaction Administrator or the Owner, Citibank or CNAI or any Affiliate thereof Purchaser may have hereunder or under applicable law, the Seller hereby agrees to indemnify the Transaction Administrator, the Purchaser and their assigns, and each of their respective directors, officers, employees, agents and attorneys (all of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof foregoing being collectively referred to as “Indemnified Parties”) from and against any and all damages, losses, claims,, taxes, liabilities and related costs and expenses, including reasonable attorneys' ’ fees (which attorneys may be employees of the Transaction Administrator or the 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 resulting from this Agreement or Agreement.
a) the ownership of Eligible Assets or in respect sale of any Receivable or any Contractunder this Agreement or, excludingin relation to French Receivables, howeverunder a French Transfer Document, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest purchase an Eligible Receivable or which thereafter ceases to be an Eligible Receivablefor Purchase;
(iib) reliance on any representation or warranty made or deemed made by the Seller (Seller, the Servicer or any of its officers) their respective officers under or in connection with this Agreement, the Original Agreement, any Investor Report or any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, Agreement which shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iiic) the failure by the Seller or the Servicer to comply with any term, provision or covenant contained with this Agreement, or with any applicable law, rule or regulation with respect to any Pool Receivable or Receivable, the related Contract, commercial contract or the nonconformity of any Pool Receivable or the related Contract commercial contract with any such applicable law, rule or regulationregulation and irrespective whether or not such failure was caused by the non-compliance of any Originator with any term, provision or covenant contained in the Discounted Receivables Purchase Agreement, in the contracts of sale entered into by any Originator with any Obligor or with any applicable law or regulation with respect to any Receivable;
(ivd) the failure to vest and maintain vested in the Owner of an Eligible Asset an undivided percentage ownership interest, Purchaser or to transfer to the extent Purchaser ownership of such Eligible Asset, in the Receivables inand the ancillary assets which are, or purporting are purported to be inbe, sold by the Receivables Pool, Seller hereunder in each case free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h);
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether existing at the time of the purchase of any Purchase or reinvestment such Receivable or at any subsequent timetime thereafter;
(vie) any the failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises make any payment required on its part to be observed by it under any Contract related to the Pool Receivablesmade hereunder;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(viii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ix) any products liability claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
(x) the commingling of Collections of Pool Receivables at any time with other funds;
(xi) the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; or
Appears in 1 contract
Indemnities by the Seller. (a) Without limiting any other rights which that the Purchasers, the Administrative Agent, the OwnerLiquidity Agent, Citibank or CNAI any Liquidity Lender, the Letter of Credit Agent or any Affiliate thereof Letter of Credit Provider or any of their respective officers, directors, employees, attorneys, agents or representatives (each, a “Purchaser Indemnified Person”) may have hereunder or under applicable law, the Seller hereby agrees to indemnify and hold harmless each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Purchaser Indemnified Person from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), awarded Amounts that may be claimed or asserted against or incurred by any such Purchaser Indemnified Person in connection with or arising out of them the transactions contemplated under this Agreement or under any other Related Document or any actions or failures to act in connection therewith, including any and all legal costs and expenses arising out of or as incurred in connection with disputes between or among any parties to any of the Related Documents; provided, that the Seller shall not be liable for any indemnification to a result of this Agreement or Purchaser Indemnified Person to the ownership of Eligible Assets or in respect of extent that any Receivable or any Contract, excluding, however, such Indemnified Amount (x) results from (i) with respect to any Purchaser Indemnified Amounts to Person other than the extent resulting from Conduit Purchaser, such Purchaser Indemnified Person’s gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) with respect to any Purchaser Indemnified Person, such Purchaser Indemnified Person’s willful misconduct, in each case as finally determined by a court of competent jurisdiction, or (y) constitutes recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivablesor uncollected transferred receivables. Without limiting the generality of the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof each Purchaser Indemnified Person any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(iiA) reliance on any representation or warranty made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report Agreement or any other Related Document or on any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which thereto that shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iiiB) the failure by the Seller to comply with any term, provision or covenant contained in this Agreement, any other Related Document or any agreement executed in connection herewith or therewith, any applicable law, rule or regulation with respect to any Pool Transferred Receivable or the related ContractContract therefor, or the nonconformity of any Pool Transferred Receivable or the related Contract therefor with any such applicable law, rule or regulation;; or
(iv1) the failure to vest and maintain vested in the Owner Seller or the Purchasers valid and properly perfected title to and sole record and beneficial ownership of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables inthat constitute Transferred Receivables, or purporting to be in, the Receivables Pooltogether with all Collections in respect thereof, free and clear of any Adverse Claim except for the lienClaim, if applicable, referred to in Section 4.01(h);
(v2) the failure to filemaintain or transfer to the Administrative Agent a first, priority, perfected Lien in the Seller Collateral and (3) the failure to maintain or any delay in filingtransfer to the Administrative Agent a first priority, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent timeperfected Lien therein;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(viiD) any dispute, claim, offset or defense of any Obligor (other than its discharge in bankruptcy of the Obligorbankruptcy) of the Obligor to the payment of any Transferred Receivable in, or purporting to be in, that is the Receivables Pool subject of a Purchase hereunder (including, without limitation, including a defense based on such Receivable or the related Contract therefor not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related giving rise to such Receivable or the furnishing of or failure to furnish such merchandise or servicesservices or relating to collection activities with respect to such Receivable (if such collection activities were performed by any Originator or any of its Affiliates acting as the Servicer), except to the extent that such dispute, claim, offset or defense results solely from any action or inaction on the part of any Purchaser Indemnified Person;
(viii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ixE) any products liability claim or other claim arising out of or in connection with merchandise, insurance or services which are that is the subject of any ContractContract with respect to any Transferred Receivable;
(xF) the commingling of Collections of Pool with respect to Transferred Receivables by the Seller at any time with its other funds;
(xi) funds or the enforcement or legal recognition funds of any prior interest under the Mortgage in or to any Receivables or the proceeds thereofother Person; or
(xiiG) any breakage and failure by the Seller to cause the filing of, or any delay in filing, financing statements or other expenses, if any, of similar instruments or documents under the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance UCC of any Eligible Asset and applicable jurisdiction or any other applicable laws with respect to any Transferred Receivable that is the costs and expenses specifically set forth subject of a Purchase hereunder, whether at the time of any such Purchase or at any subsequent time.
(b) Any Indemnified Amounts subject to the indemnification provisions of this Section 12.01 not paid in accordance with Article VI shall be paid by the definition of Fixed Rate; orSeller to the Purchaser Indemnified Person entitled thereto within five Business Days following demand therefor.
Appears in 1 contract
Samples: Receivables Purchase and Servicing Agreement (Synnex Information Technologies Inc)
Indemnities by the Seller. (a) Without limiting any other rights which that the Purchasers, the Purchaser Agents, the Administrative Agent, the OwnerLiquidity Agent, Citibank or CNAI any Liquidity Lender, the Letter of Credit Agent or any Affiliate thereof Letter of CreditProgram Support Provider, or any of their respective officers, directors, employees, attorneys, agents or representatives (each, a “Purchaser Indemnified Person”) may have hereunder or under applicable law, the Seller hereby agrees to indemnify and hold harmless each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Purchaser Indemnified Person from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), awarded Amounts that may be claimed or asserted against or incurred by any such Purchaser Indemnified Person in connection with or arising out of them the transactions contemplated under this Agreement or under any other Related Document or any actions or failures to act in connection therewith, including any and all legal costs and expenses arising out of or as incurred in connection with disputes between or among any parties to any of the Related Documents; provided, that the Seller shall not be liable for any indemnification to a result of this Agreement or Purchaser Indemnified Person to the ownership of Eligible Assets or in respect of extent that any Receivable or any Contract, excluding, however, such Indemnified Amount (x) results from (i) with respect to any Purchaser Indemnified Amounts to Person other than the extent resulting from Conduit PurchaserPurchasers, such Purchaser Indemnified Person’s gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) with respect to any Purchaser Indemnified Person, such Purchaser Indemnified Person’s willful misconduct, in each case as finally determined by a court of competent jurisdiction, or (y) constitutes recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivablesor uncollected transferred receivables. Without limiting the generality of the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof each Purchaser Indemnified Person any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(iiA) reliance on any representation or warranty made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report Agreement or any other Related Document or on any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which thereto that shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iiiB) the failure by the Seller to comply with any term, provision or covenant contained in this Agreement, any other Related Document or any agreement executed in connection herewith or therewith, any applicable law, rule or regulation with respect to any Pool Transferred Receivable or the related ContractContract therefor, or the nonconformity of any Pool Transferred Receivable or the related Contract therefor with any such applicable law, rule or regulation;; or
(iv1) the failure to vest and maintain vested in the Owner Seller or the Purchasers valid and properly perfected title to and sole record and beneficial ownership of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables inthat constitute Transferred Receivables, or purporting to be in, the Receivables Pooltogether with all Collections in respect thereof, free and clear of any Adverse Claim except for the lienClaim, if applicable, referred to in Section 4.01(h);
(v2) the failure to filemaintain or transfer to the Administrative Agent a first, priority, perfected Lien in the Seller Collateral and (3) the failure to maintain or any delay in filingtransfer to the Administrative Agent a first priority, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent timeperfected Lien therein;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(viiD) any dispute, claim, offset or defense of any Obligor (other than its discharge in bankruptcy of the Obligorbankruptcy) of the Obligor to the payment of any Transferred Receivable in, or purporting to be in, that is the Receivables Pool subject of a Purchase hereunder (including, without limitation, including a defense based on such Receivable or the related Contract therefor not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related giving rise to such Receivable or the furnishing of or failure to furnish such merchandise or servicesservices or relating to collection activities with respect to such Receivable (if such collection activities were performed by any Originator or any of its Affiliates acting as the Servicer), except to the extent that such dispute, claim, offset or defense results solely from any action or inaction on the part of any Purchaser Indemnified Person;
(viii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ixE) any products liability claim or other claim arising out of or in connection with merchandise, insurance or services which are that is the subject of any ContractContract with respect to any Transferred Receivable;
(xF) the commingling of Collections of Pool with respect to Transferred Receivables by the Seller at any time with its other funds;
(xi) funds or the enforcement or legal recognition funds of any prior interest under the Mortgage in or to any Receivables or the proceeds thereofother Person; or
(xiiG) any breakage and failure by the Seller to cause the filing of, or any delay in filing, financing statements or other expenses, if any, of similar instruments or documents under the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance UCC of any Eligible Asset and applicable jurisdiction or any other applicable laws with respect to any Transferred Receivable that is the costs and expenses specifically set forth subject of a Purchase hereunder, whether at the time of any such Purchase or at any subsequent time.
(b) Any Indemnified Amounts subject to the indemnification provisions of this Section 12.01 not paid in accordance with Article VI shall be paid by the definition of Fixed Rate; orSeller to the Purchaser Indemnified Person entitled thereto within five Business Days following demand therefor.
Appears in 1 contract
Samples: Receivables Purchase and Servicing Agreement (Synnex Corp)
Indemnities by the Seller. (a) Without limiting any other rights which the Agentthat any Purchaser, the Owner, Citibank or CNAI Agent or any Affiliate thereof of their respective officers, directors, members, employees, attorneys, agents or representatives (each, an "Indemnified Person") may have hereunder or under applicable law, the Seller hereby agrees to indemnify and hold harmless each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Person from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), awarded Amounts that may be claimed or asserted against or incurred by any such Indemnified Person in connection with or arising out of them the transactions contemplated under this Agreement or under any other Related Document or any actions or failures to act in connection therewith, including any and all legal costs and expenses arising out of or as incurred in connection with disputes between or among any parties to any of the Related Documents; provided that the Seller shall not be liable for any indemnification to a result of this Agreement or Indemnified Person to the ownership of Eligible Assets or in extent that any such Indemnified Amount (x) results from with respect of to any Receivable or any Contract, excluding, howeverIndemnified Person, (i) such Indemnified Amounts to the extent resulting from Person's gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) such Indemnified Person's willful misconduct, in each case as finally determined by a court of competent jurisdiction or (y) constitutes recourse (except as otherwise specifically provided in this Agreement) for uncollectible or uncollected Transferred Receivables. Without limiting the generality of the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof each Indemnified Person any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report Agreement or any other Related Document or on any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which thereto that shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iiiii) the failure by the Seller to comply with any term, provision or covenant contained in this Agreement, any other Related Document or any agreement executed in connection herewith or therewith, any applicable law, rule or regulation with respect to any Pool Transferred Receivable or the related ContractContract therefor, or the nonconformity of any Pool Transferred Receivable or the related Contract therefor with any such applicable law, rule or regulation;; or WNC Receivables, LLC Receivables Purchase and Servicing Agreement
(iv1) the failure to vest and maintain vested in the Owner Seller or the Agent valid and properly perfected title to and sole record and beneficial ownership of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables inthat constitute Transferred Receivables, or purporting to be in, the Receivables Pooltogether with all Collections in respect thereof, free and clear of any Adverse Claim except for the lienClaim, if applicable, referred to in Section 4.01(h);
(v2) the failure to filemaintain or transfer to the Agent for the benefit of the Purchasers a first, priority, perfected Lien in the Seller Collateral and (3) the failure to maintain or any delay in filingtransfer to the Agent a first priority, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent timeperfected Lien therein;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(viiiv) any dispute, claim, offset or defense of any Obligor (other than its discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Receivable in, or purporting to be in, that is the Receivables Pool subject of a Purchase hereunder (including, without limitation, including a defense based on such Receivable or the related Contract therefor not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related giving rise to such Receivable or the furnishing of or failure to furnish such merchandise or servicesservices or relating to collection activities with respect to such Receivable (if such collection activities were performed by any of its Affiliates acting as Servicer), except to the extent that such dispute, claim, offset or defense results solely from any action or inaction on the part of any Indemnified Person or is otherwise based on the inability of the Obligor to pay;
(viii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ixv) any products liability claim or other claim arising out of or in connection with merchandise, insurance or services which are that is the subject of any ContractContract with respect to any Transferred Receivable;
(xvi) the commingling of Collections of Pool with respect to Transferred Receivables by the Seller at any time with its other fundsfunds or the funds of any other Person;
(xivii) any failure by the enforcement Seller to cause the filing of, or legal recognition any delay in filing, financing statements or other similar instruments or documents under the UCC of any prior interest under the Mortgage in applicable jurisdiction or any other applicable laws with respect to any Receivables Transferred Receivable that is the subject of a Purchase hereunder, whether at the time of any such Purchase or the proceeds thereofat any subsequent time; or
(xiiviii) any breakage and other expenses, if any, failure of a Lockbox Account Bank to comply with the terms of the Investor or applicable Lockbox Agreement.
(b) Any Indemnified Amounts subject to the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) indemnification provisions of interest rate swaps, collars, forward agreements and future contracts this Section 12.01 not paid in connection accordance with Article VI shall be paid by the funding or maintenance of any Eligible Asset and Seller to the costs and expenses specifically set forth in the definition of Fixed Rate; orIndemnified Person entitled thereto within five Business Days following demand therefor.
Appears in 1 contract
Samples: Receivables Purchase and Servicing Agreement (Wabash National Corp /De)
Indemnities by the Seller. Without limiting any other rights which CNAI, the Agent, the Owner, Citibank each Bank or CNAI or any Affiliate thereof their Affiliates may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Agent, CNAI, the Owner, Citibank Banks and CNAI and each Affiliate thereof their Affiliates from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), ) awarded against or incurred by any of them arising out of or as a result of this Agreement or the ownership of Eligible Assets or in respect of any Receivable or any Contract, excluding, however, (ix) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the OwnerCNAI, Citibank or CNAI or any such Affiliate or Bank and their Affiliates, (iiy) recourse (except as otherwise specifically provided in this Agreement) for uncollectible ReceivablesPool Receivables or (z) Indemnified Amounts to the extent arising solely in connection with a dispute between or among CNAI, the Agent, any Bank or any of their respective Affiliates as a result of an alleged default by any such Person in the performance of any obligation owing to another such Person in connection with this Agreement. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the OwnerCNAI, Citibank each Bank and CNAI and each Affiliate thereof their Affiliates for Indemnified Amounts relating to or resulting from:
(ia) the creation transfer hereunder of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be other than an Eligible Receivable;
(iib) reliance on any representation or warranty made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report or any other information or report delivered by the Seller pursuant hereto hereto, or by the Parent pursuant to the Original Parent Support Agreement, which shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iiic) the failure by the Seller (individually or as Collection Agent) to comply with any term, provision or covenant contained in this Agreement, or with any applicable law, rule or regulation with respect to any Pool Receivable Receivable, the related Contract or the related ContractRelated Security, or the nonconformity of any Pool Receivable or Receivable, the related Contract or the Related Security with any such applicable law, rule or regulation;
(ivd) the failure to vest and maintain vested in the Owner of an Eligible Asset an each Bank or to transfer to each Bank a valid and perfected first priority undivided percentage ownership interest, to the extent of each Percentage Interest owned by such Bank hereunder in each Eligible Asset, in the Receivables inwhich are, or purporting are intended to be inbe, the Receivables PoolPool Receivables, together with all Collections and Related Security, free and clear of any Adverse Claim except for whether existing at the lien, if applicable, referred to in Section 4.01(h)time of the Purchase of such Eligible Asset or at any time thereafter;
(ve) the failure at any time on or before the Termination Date of the sum of all Eligible Assets and all "Eligible Assets" under and as defined in the Investor Agreement to be less than or equal to 100%;
(f) the failure to file, perfect or any delay in filingperfecting as against the Seller, any of its Affiliates or any Dealer under the UCC of all applicable jurisdictions or other applicable laws (whether by the filing of financing statements or other similar instruments or documents under or otherwise) the UCC interests of any applicable jurisdiction or other applicable laws with respect to any the Banks and the Agent in all Receivables inthat are, or purporting are intended to be inbe, the Receivables PoolPool Receivables, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(viig) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable inwhich is, or purporting is intended to be inbe, the Receivables a Pool Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise Equipment or services related to such Receivable or the furnishing or failure to furnish such merchandise Equipment or services;
(viiih) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ixi) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise, insurance Equipment or services which are the subject of any Receivable or Contract;
(xj) the failure by the Seller, any of its Affiliates or any Dealer to pay when due any taxes, including without limitation, sales, excise or personal property taxes payable in connection with the Receivables;
(k) the failure of the Parent, the Seller, any Dealer or any of their respective agents and representatives to collect Receivables as contemplated by the related Contract and the Credit and Collection Policy or the failure of the Parent, any Dealer or any of their respective agents or representatives to remit to the Seller Collections of Pool Receivables remitted to the Parent or any such Dealer, agent or representative, or the failure of the Seller or any of its agents and representatives to remit to the Collection Agent or the Agent, Collections of Pool Receivables remitted to the Seller or such agent or representative;
(l) the termination as a Dealer of any Dealer by the Parent or any Affiliate;
(m) any claim, litigation or other action asserted or commenced by a Dealer for the payment to such Dealer of any dealer reserve or other amounts or other obligations allegedly owing to such Dealer by the Seller, the Parent or any of their respective Affiliates;
(n) any failure of the Seller or the Parent to give reasonably equivalent value to any Dealer or the Parent, as applicable in consideration for the transfer by such Dealer or the Parent, as applicable of any Receivable and related Contract, or any attempt by any Person to void any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code;
(o) the failure by the Seller, the Parent or any Dealer to be duly qualified to do business, to be in good standing or to have filed appropriate fictitious or assumed name registration documents in any jurisdiction;
(p) the occurrence with respect to any Dealer of any event of the type described in Section 7.01(f) hereof; or
(q) the commingling of Collections of Pool Receivables at any time with other funds;
(xi) , whether by a Dealer, the enforcement Seller, the Parent or legal recognition any of any prior interest under their respective affiliates. Any amounts subject to the Mortgage in or indemnification provisions of this Section 10.01 shall be paid by Seller to any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; orAgent within two Business Days following Agent's demand therefor.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Snap on Inc)
Indemnities by the Seller. (a) Without limiting any other rights which the Agent, the Owner, Citibank or CNAI or any Affiliate thereof Affected Party may have hereunder or under applicable law, the Seller and the Initial Servicer jointly and severally hereby agrees agree to indemnify each of the AgentPurchaser and FNBB, individually and in its capacity as Deal Agent (the Owner"Indemnified Parties"), Citibank and CNAI and each Affiliate thereof from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), ) awarded against or incurred by any of them such Indemnified Party arising out of or as a result of this Agreement Agreement, any of the other Facility Documents, or any interest of any such Indemnified Party in, to or under the ownership of Eligible Assets Purchased Interests, or in respect of any Receivable or any ContractAsset, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agentany Indemnified Party, the Owner, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically with respect to payment and performance obligations provided for in this Agreement) for uncollectible ReceivablesPurchased Assets, or (iii) Indemnified Amounts which are cured upon a repurchase of the Purchased Assets by the Seller or the Initial Servicer. Without limiting The Seller and, if the foregoingSeller fails to do so, the Seller Initial Servicer shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Party for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made or deemed made by the Seller or the Initial Servicer (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report Purchase Request or any other information or report delivered by or on behalf of the Seller or the Initial Servicer pursuant hereto or to the Original Agreementhereto, which shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iiiii) the failure by the Seller Seller, the Initial Servicer or the Subservicer to comply with any term, provision or covenant contained in this Agreement, the Asset Sale Agreement or any other Facility Document to which it is party or with any applicable law, rule or regulation with respect to any Pool Receivable Asset, the Related Security, the Property or the related ContractProject, or the nonconformity of any Pool Receivable Asset, the Related Security, the Property or the related Contract Project with any such applicable law, rule or regulation;
regulation or the criteria for an Eligible Asset; (iviii) the failure to vest in assertion by any Person of any claim (including any claim alleging the Owner violation of an Eligible Asset an undivided percentage ownership interest, any environmental law or regulation) relating to the extent of such Eligible Assetownership, in the Receivables inoperation, or purporting to be inrepair, the Receivables Pool, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h);
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(viii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ix) any products liability claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
(x) the commingling of Collections of Pool Receivables at any time with other funds;
(xi) the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding use or maintenance of any Eligible Property or Project or the noncompliance of any Asset and or the costs and expenses specifically set forth in the definition sale of Fixed Rate; orany Asset or Property with any applicable law;
Appears in 1 contract
Samples: Asset Purchase Agreement (Litchfield Financial Corp /Ma)
Indemnities by the Seller. (a) Without limiting any other rights which that the AgentPurchasers, the Owner, Citibank Administrative Agent or CNAI the Purchaser Agent or any Affiliate thereof of their respective officers, directors, employees, attorneys, agents, representatives, transferees, successors or assigns (each, an “Indemnified Person”) may have hereunder or under applicable law, the Seller hereby agrees to indemnify and hold harmless each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Person from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), awarded Amounts that may be claimed or asserted against or incurred by any such Indemnified Person in connection with or arising out of them the transactions contemplated under this Agreement or under any other Related Document or any actions or failures to act in connection therewith, including any and all reasonable legal costs and expenses arising out of or incurred in connection with disputes between or among any parties to any of the Related Documents; provided, that the Seller shall not be liable for any indemnification to an Indemnified Person to the extent that any such Indemnified Amount (x) results from such Indemnified Person’s gross negligence or willful misconduct, in each case as finally determined by a court of competent jurisdiction or (y) constitutes recourse for uncollectible or uncollected Transferred Receivables as a result of this Agreement the insolvency, bankruptcy or the ownership failure (without cause or justification triggered by the actions of Eligible Assets or in respect of any Receivable Seller or any Contract, excluding, however, (iAffiliate thereof) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct inability on the part of the Agentrelated Obligor to perform its obligations thereunder. Subject to clauses (x) and (y) of the proviso in the immediately preceding sentence, but without limiting the Owner, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting generality of the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof each Indemnified Person any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report Agreement or any other Related Document (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or on any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which thereto that shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iiiii) the failure by the Seller to comply with any term, provision or covenant contained in this Agreement, any other Related Document or any agreement executed in connection herewith or therewith (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality), any applicable law, rule or regulation with respect to any Pool Transferred Receivable or the related ContractContract therefor, or the nonconformity of any Pool Transferred Receivable or the related Contract therefor with any such applicable law, rule or regulation;
(iv1) the failure to vest and maintain vested in the Owner Seller valid and properly perfected title to and sole legal and beneficial ownership of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables inthat constitute Transferred Receivables, or purporting to be in, the Receivables Pooltogether with all Collections in respect thereof and all other Seller Assets, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h);
and (v2) the failure to filemaintain or transfer to the Purchaser Agent, or for the benefit of itself and other Specified Parties, a first priority, perfected security interest in any delay in filing, financing statements or other similar instruments or documents under portion of the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent timeSeller Assets;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(viiiv) any dispute, claim, offset or defense of any Obligor (other than its discharge in bankruptcy of the Obligorbankruptcy) of the Obligor to the payment of any Transferred Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, including a defense based on any Dilution Factor or on such Receivable or the related Contract therefor not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related giving rise to such Receivable or the furnishing of or failure to furnish such merchandise or servicesservices or relating to collection activities with respect to such Receivable (if such collection activities were performed by any of its Affiliates acting as Servicer);
(viii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ixv) any products liability claim or other claim arising out of or in connection with merchandise, insurance or services which are that is the subject of any ContractContract with respect to any Transferred Receivable;
(vi) the commingling of Collections with respect to Transferred Receivables by the Seller at any time with its other funds or the funds of any other Person;
(vii) any failure by the Seller to cause the filing of, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or any other applicable laws with respect to any Transferred Receivable that is the subject of a Purchase hereunder, whether at the time of any such Purchase or at any subsequent time to the extent such filing is necessary to maintain the perfection and priority of the interests of the Purchaser Agent, for the benefit of the Purchasers, in the Transferred Receivables;
(viii) any investigation, litigation or proceeding related to this Agreement or any other Related Document or the ownership of Receivables or Collections with respect thereto or any other investigation, litigation or proceeding relating to the Seller, the Servicer, any Transferor or any Originator brought against any Indemnified Person as a result of any of the transactions contemplated hereby or by any other Related Document;
(ix) any failure of (x) a Lockbox Processor to comply with the terms of the applicable Lockbox Control Agreement, or (y) the Collection Account Bank to comply with the terms of the Collection Account Agreement;
(x) the commingling of Collections of Pool Receivables at any time with other fundsTermination Event described in Section 8.01(d) or (e) relating to Seller;
(xi) any failure of the enforcement or legal recognition Seller to give reasonably equivalent value to any Transferor under the Transfer Agreement in consideration of the transfer by such Transferor of any prior interest Receivable, or any attempt by any Person to void such transfer under the Mortgage in statutory provisions or to any Receivables common law or the proceeds thereof; orequitable action;
(xii) any breakage and other expenses, if any, failure of any Transferor to give reasonably equivalent value to any Originator under the Sale Agreement in consideration of the Investor transfer by such Originator of any Receivable, or any attempt by an Person to void such transfer under statutory provisions or common law or equitable action;
(xiii) any action or omission by Seller or any Transaction Party which reduces or impairs the rights of the Purchaser Agent or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection Specified Parties with respect to any Receivable or the funding or maintenance value of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Ratesuch Receivable;
(xiv) any attempt by any Person to void any Purchase or any other interest created hereunder under statutory provisions or common law or equitable action; or
(xv) any withholding, deduction or Charge imposed upon any payments with respect to any Transferred Receivable, any Seller Assigned Agreement or any other Seller Assets, other than in respect of Excluded Taxes.
(b) Any Indemnified Amounts subject to the indemnification provisions of this Section 10.01 not paid in accordance with Section 2.08 shall be paid by the Seller to the Indemnified Person entitled thereto within five Business Days following demand therefor.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Univision Communications Inc)
Indemnities by the Seller. Without limiting any other ------------------------- rights which the Agent, the Owner, Citibank or CNAI or any Affiliate thereof Purchaser may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Purchaser from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements and including any "Indemnified Amounts" owed by the Purchaser under Sections 8.01 or 9.06 of the NewCo Agreement or by Alliant Energy SPE under Sections 10.01 or 11.06 of the Xxxxxx Agreement or the Citibank Agreement (all of the foregoing being collectively referred to as "Indemnified Amounts"), ) awarded against or incurred by any of them the Purchaser arising out of or as a result of this Agreement or the use of proceeds of Purchases or the ownership of Eligible Assets or in respect of any Receivable or any ContractPool Receivables, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank Investor or CNAI CNA or any such Affiliate of their Affiliates or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting or being limited by the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof Purchaser and its successors in interest any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof any of them for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made by the Seller or Services or the Parent (or any of its their respective officers) under or in connection with this Agreement, Agreement or the Original Parent Agreement, any Investor Report or any other information or report delivered by the Seller or Services or the Parent pursuant hereto or to the Original Agreementthereto, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by the Seller or Services to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule or regulation;
(iv) the failure to vest in the Owner of Purchaser an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, interest in the Receivables in, or purporting to be in, the Receivables Pool, free and clear of any Adverse Claim except for other than the lien, if applicable, referred to in Section 4.01(hinterest of the Purchaser (whether or not such Adverse Claim is specifically contemplated by this Agreement);
(v) the failure by the Seller to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its termsObligor), or any other claim resulting from the sale of the merchandise electricity, gas, water or services related to such Receivable or the furnishing or failure to furnish such merchandise electricity, gas, water or services;
(viiivii) any failure of the SellerSeller or Services, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ixviii) any products liability claim arising out of or in connection with merchandisethe electricity, insurance gas, water or services which are the subject of any Contract;; or
(xix) the commingling of Collections of Pool Receivables at any time with other funds;
(xi) the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; or.
Appears in 1 contract
Indemnities by the Seller. Without limiting any other rights which the Agent, the Owner, Citibank or CNAI or any Affiliate thereof Person may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of indemnifies and holds harmless, on an after-Tax basis, the Agent, the Owner, Citibank and CNAI each Purchaser Agent and each Affiliate thereof Purchaser and their respective officers, directors, agents and employees (each an “Indemnified Party") from and against any and all damages, losses, claims, liabilities and related liabilities, penalties, Taxes, costs and expenses, reasonable expenses (including reasonable attorneys' ’ fees and disbursements court costs) (all of the foregoing being collectively referred to as collectively, the “Indemnified Losses"Indemnified Amounts"), awarded against ) at any time imposed on or incurred by any of them Indemnified Party arising out of or as a result of this Agreement or otherwise relating to any Transaction Document, the ownership of Eligible Assets or in respect of any Receivable transactions contemplated thereby or any Contractaction taken or omitted by any of the Indemnified Parties (including any action taken by the Agent as attorney-in-fact for the Seller pursuant to Section 3.5(b)), excludingwhether arising by reason of the acts to be performed by the Seller hereunder or otherwise, however, (i) excluding only Indemnified Amounts Losses to the extent resulting (a) a final judgment of a court of competent jurisdiction holds such Indemnified Losses resulted solely from gross negligence or willful misconduct on of the part Indemnified Party seeking indemnification, (b) solely due to the credit risk of the Obligor for uncollectible Receivables or (c) such Indemnified Losses include Taxes on, or measured by, the overall net income of the Agent, the Owner, Citibank or CNAI any Purchaser Agent or any such Affiliate or (ii) recourse (except as otherwise specifically provided Purchaser computed in this Agreement) for uncollectible Receivablesaccordance with the Intended Tax Characterization. Without limiting the foregoingforegoing indemnification, but subject to the limitations set forth in clauses (a), (b) and (c) of the previous sentence, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Party for Indemnified Amounts Losses relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made by the Seller Seller, any Originator or the Collection Agent (or any employee or agent of its officersthe Seller, the Originator or the Collection Agent) under or in connection with this Agreement, the Original Agreement, any Investor Periodic Report or any other information or report delivered by the Seller Seller, any Originator or the Collection Agent pursuant hereto or to the Original Agreementhereto, which shall have been false or incorrect in any material respect when made or deemed made;
(iiiii) the failure by the Seller Seller, any Originator, or the Collection Agent to comply with any applicable law, rule or regulation with respect related to any Pool Receivable or the related ContractReceivable, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule or regulation;
(iii) any commingling of funds to which the Agent, any Purchaser Agent or any Purchaser is entitled hereunder with any other funds;
(iv) any failure of a Lock-Box Bank to comply with the failure to vest in terms of the Owner of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables in, or purporting to be in, the Receivables Pool, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h)applicable Lock-Box Letter;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms)Receivable, or any other claim resulting from the sale or lease of goods or the merchandise or rendering of services related to such Receivable or the furnishing or failure to furnish any such merchandise goods or servicesservices or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(viiivi) any failure of the SellerSeller or any Originator, as Collection Agent or otherwiseany Affiliate of any thereof, to perform its duties or obligations in accordance with the provisions of Article VIthis Agreement or any other Transaction Document to which such Person is a party (as a Collection Agent or otherwise);
(ixvii) any action taken by the Agent as attorney-in-fact for the Seller pursuant to Section 3.5(b);
(viii) any environmental liability claim, products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort, arising out of or in connection with merchandiseany Receivable or any other suit, insurance claim or services which are the subject action of any Contract;
(x) the commingling of Collections of Pool Receivables at any time with other funds;
(xi) the enforcement or legal recognition of any prior interest under the Mortgage in or whatever sort relating to any Receivables or of the proceeds thereofTransaction Documents; or
(xiiix) any breakage and other expenses, if any, inability to enforce any judgment rendered in the United States against any Obligor of any Foreign Receivable in such Obligor’s country of domicile in respect of any Foreign Receivable without reexamination or relitigation of the Investor matters adjudicated upon, or any inability to obtain any judgment in or utilize the Owner (includingcourt or other adjudication system of, without limitationany foreign jurisdiction in which such an Obligor may be located, attorneys' feesexcept, disbursements and accrued interest) in each case, to the extent the applicable Foreign Receivable is uncollectible on account of interest rate swaps, collars, forward agreements and future contracts in connection with the funding insolvency or maintenance bankruptcy of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; orsuch Obligor or its financial inability to pay.
Appears in 1 contract
Indemnities by the Seller. Without limiting any other rights which the Agent, the Owner, Citibank or CNAI any Owner or any Affiliate thereof of their respective Affiliates (each an "Indemnified Party") may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Party from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), ) awarded against or incurred by any of them arising out of or as a result of this Agreement or the use of proceeds of Purchases or the ownership of Eligible Assets or in respect of any Receivable or any Contract, excluding, however, (ia) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate Indemnified Party or (iib) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting or being limited by the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof each Indemnified Party any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof such Indemnified Party for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Seller Report or any other information or report delivered by the Seller pursuant hereto or to the Original Agreementhereto, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule or regulation;
(iv) the failure to vest in the Owner of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables in, or purporting to be in, the Receivables PoolPool and the Related Security and Collections in respect thereof, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h)Claim;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables PoolPool and the Related Security and Collections in respect thereof, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(viiivii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with hereunder or to perform its duties or obligations under the provisions of Article VIContracts;
(ixviii) any products liability claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;; or
(ix) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Purchases or the ownership of Eligible Assets or in respect of any Receivable or any Contract; or
(x) the commingling of Collections of Pool Receivables at any time with other funds;
(xi) funds provided, that without in any way limiting the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, scope of the Investor or foregoing indemnity, such indemnity is not intended to restrict the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) Seller from servicing Receivables as the Collection Agent pursuant to Article 6 of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; orthis Agreement.
Appears in 1 contract
Samples: Trade Receivables Purchase and Sale Agreement (Geon Co)
Indemnities by the Seller. Without limiting any other ------------------------- rights which the Agent, the Owner, Citibank Investor or CNAI CNA or any Affiliate Affiliates thereof may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Agent, the Owner, Citibank Investor and CNAI CNA and each Affiliate thereof from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), ) awarded against or incurred by any of them arising out of or as a result of this Agreement or the use of proceeds of Purchases or the ownership of Eligible Assets Shares or in respect of any Receivable or any Contract, excluding, however, (ia) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank Investor or CNAI CNA or any such Affiliate or (iib) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting or being limited by the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank Investor or CNAI CNA or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank Investor and CNAI CNA and each Affiliate thereof for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made by the Seller or any Originator or any SPV or Services or the Parent (or any of its their respective officers) under or in connection with this Agreement, any Originator Agreement, any NewCo Agreement, the Original Parent Agreement, any Investor Report or any other information or report delivered by the Seller or any Originator or any SPV or Services or the Parent pursuant hereto or to the Original Agreementthereto, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by the Seller or any Originator or any SPV or Services to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule or regulation;
(iv) the failure to vest in the Owner of an Eligible Asset a Share an undivided percentage ownership interest, to the extent of such Eligible AssetShare, in the Receivables in, or purporting to be in, the Receivables Pool, free and clear of any Adverse Claim except for other than the lien, if applicable, referred to in Section 4.01(hinterest of such Owner (whether or not such Adverse Claim is specifically contemplated by this Agreement);
(v) the failure by the Seller or any Originator or any SPV to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms)Obligor, or any other claim resulting from the sale of the merchandise electricity, gas, water or services related to such Receivable or the furnishing or failure to furnish such merchandise electricity, gas, water or services;
(viiivii) any failure of the SellerSeller or Services, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ixviii) any products liability claim arising out of or in connection with merchandisethe electricity, insurance gas, water or services which are the subject of any and Contract;; or
(xix) the commingling of Collections of Pool Receivables at any time with other funds;
(xi) the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; or.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Alliant Energy Corp)
Indemnities by the Seller. Without limiting any other rights which the Agent, the Owner, Citibank or CNAI or any Affiliate thereof Purchaser may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the AgentPurchaser and its assigns and transferees (each, the Owner, Citibank and CNAI and each Affiliate thereof an "Indemnified Party") from and against any and all damages, claims, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), awarded against or incurred by any of them Indemnified Party arising out of or as a result of this Agreement or the ownership purchase or contribution of Eligible Assets any Transferred Receivables or in respect of any Transferred Receivable or any Contract, excludingincluding, howeverwithout limitation, (i) Indemnified Amounts to the extent resulting from gross negligence arising out of or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting froma result of:
(i) the creation of an undivided percentage ownership interest inclusion, or purported inclusion, in any Purchase of any Receivable that is not an Eligible Receivable on the date of such Purchase, or the characterization in any Seller Report or other statement made by the Seller of any Transferred Receivable as an Eligible Receivable which is not at an Eligible Receivable as of the date of the creation of such interest an Eligible Receivable Seller Report or which thereafter ceases to be an Eligible Receivablestatement;
(ii) reliance on any representation or warranty or statement made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report or any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Pool Transferred Receivable or the related Contract, ; or the nonconformity failure of any Pool Transferred Receivable or the related Contract with to conform to any such applicable law, rule or regulation;
(iv) the failure to vest in the Owner Purchaser absolute ownership of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables inthat are, or purporting that purport to be inbe, the Receivables Poolsubject of a Purchase or contribution under this Agreement and the Related Security and Collections in respect thereof, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h)Claim;
(v) the failure of the Seller to filehave filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables inthat are, or purporting that purport to be inbe, the Receivables Poolsubject of a Purchase or contribution under this Agreement and the Related Security and Collections in respect thereof, whether at the time of any Purchase or reinvestment contribution or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable inthat is, or purporting that purports to be inbe, the Receivables Pool subject of a Purchase or contribution under this Agreement (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or servicesservices or relating to collection activities with respect to such Receivable (if such collection activities were performed by the Seller acting as Collection Agent);
(viiivii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VIhereof or to perform its duties or obligations under any Contract related to a Transferred Receivable;
(ixviii) any products liability or other claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
(xix) the commingling of Collections of Pool Transferred Receivables by the Seller or a designee of the Seller, as Collection Agent or otherwise, at any time with other fundsfunds of the Seller or an Affiliate of the Seller;
(x) any third party investigation, litigation or proceeding related to this Agreement or the use of proceeds of Purchases or the ownership of Receivables, the Related Security, or Collections with respect thereto or in respect of any Receivable, Related Security or Contract (excluding any collection costs of the Purchaser arising directly from the financial inability of an Obligor to pay in respect of any Receivable);
(xi) any failure of the enforcement or legal recognition of any prior interest under the Mortgage Seller to comply with its covenants contained in or to any Receivables or the proceeds thereof; orthis Agreement;
(xii) any breakage Collection Agent Fees or other costs and other expensesexpenses payable to any replacement Collection Agent, if any, to the extent in excess of the Investor Collection Agent Fees payable to the Seller hereunder;
(xiii) any claim brought by any Person other than an Indemnified Party arising from any activity by the Seller or any Affiliate of the Owner Seller in servicing, administering or collecting any Transferred Receivable;
(xiv) any Dilution with respect to any Transferred Receivable; or
(xv) the failure of the Seller to comply with any term or provision of any Contract that contains a confidentiality provision that purports to restrict the ability of the Purchaser (or its assigns) to exercise its rights under this Agreement, including, without limitation, attorneys' feesits right to review the Contract. It is expressly agreed and understood by the parties hereto (i) that the foregoing indemnification is not intended to, disbursements and accrued interestshall not, constitute a guarantee of the collectibility or payment of the Transferred Receivables and (ii) that nothing in this Section 8.01 shall require the Seller to indemnify any Person (A) for Receivables which are not collected, not paid or uncollectible on account of interest rate swapsthe insolvency, collarsbankruptcy, forward agreements and future contracts or financial inability to pay of the applicable Obligor, (B) for damages, losses, claims or liabilities or related costs or expenses to the extent found by a court of competent jurisdiction to have resulted from such Person's gross negligence or willful misconduct, or (C) for any income taxes or franchise taxes incurred by such Person arising out of or as a result of this Agreement or in connection with the funding or maintenance respect of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; orTransferred Receivable or any Contract.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Lexmark International Inc /Ky/)
Indemnities by the Seller. Without limiting any other rights which the Agent, the Owner, Citibank or CNAI or any Affiliate thereof Purchaser may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the AgentPurchaser and its assigns and transferees (each, the Owner, Citibank and CNAI and each Affiliate thereof an "INDEMNIFIED PARTY") from and against any and all damages, claims, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified AmountsINDEMNIFIED AMOUNTS"), awarded against or incurred by any of them Indemnified Party arising out of or as a result of this Agreement of:
(a) the inclusion, or the ownership of Eligible Assets or purported inclusion, in respect any Purchase of any Receivable that is not an Eligible Receivable on the date of such Purchase, or the characterization in any Receivables Report or other statement made by the Seller of any Transferred Receivable as an Eligible Receivable which is not an Eligible Receivable as of the date of such Receivables Report or statement;
(b) any failure by the Purchaser to obtain full payment with respect to any Government Receivable 180 days after the same becomes payable or any Contract, excluding, however, (i) Indemnified Amounts failure by the Purchaser to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage obtain a perfected ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Government Receivable;
(iic) reliance on any representation or warranty made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report or any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which shall have been false or incorrect in any material respect when made or deemed made;
(iiid) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Pool Transferred Receivable or the related Contract, ; or the nonconformity failure of any Pool Transferred Receivable or the related Contract with to conform to any such applicable law, rule or regulation;
(ive) the failure to vest in the Owner Purchaser absolute ownership of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables inthat are, or purporting that purport to be inbe, the Receivables Poolsubject of a Purchase under this Agreement and the Related Security and Collections in respect thereof, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h)Claim;
(vf) the failure of the Seller to filehave filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws law with respect to any Receivables inReceivable that is, or purporting that purports to be inbe, the Receivables Poolsubject of a Purchase under this Agreement and the Related Security and Collections in respect thereof, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(viig) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable inthat is, or purporting that purports to be inbe, the Receivables Pool subject of a Purchase under this Agreement (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or servicesservices or relating to collection activities with respect to such Receivable (if such collection activities were performed by the Seller acting as Collection Agent) except to the extent that such dispute, claim, offset or defense results solely from actions or failures to act of the Purchaser or its assigns;
(viiih) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VIhereof or to perform its duties or obligations under any Contract related to a Transferred Receivable;
(ixi) any products liability or other claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
(x) the commingling of Collections of Pool Receivables at any time with other funds;
(xi) the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; or
Appears in 1 contract
Indemnities by the Seller. (a) Without limiting any other rights which the Agent, the Owner, Citibank or CNAI or any Affiliate thereof Affected Party may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the AgentAffected Party and its officers, the Ownerdirectors, Citibank and CNAI and each Affiliate thereof shareholders, employees or agents, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified AmountsINDEMNIFIED AMOUNTS"), ) awarded against or incurred by any of them such Affected Party arising out of or as a result of this Agreement or the ownership of Eligible Assets or in respect of any Receivable or any Contractfollowing items, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate Affected Party or (ii) recourse (except as otherwise specifically provided for in this Agreement) for uncollectible Purchased Receivables. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made or deemed made by the Seller or the Servicer (or any of its their respective officers) under or in connection with this Agreement, the Original Agreementany Monthly Report, any Investor Report Purchase Notice or any other information or report delivered by the Seller or the Servicer pursuant hereto or to the Original Agreementhereto, which shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iiiii) the failure by the Seller or the Servicer to comply with any term, provision or covenant contained in this Agreement or the other Facility Documents to which it is a party or with any applicable law, rule or regulation with respect to any Pool Receivable Receivable, the related Contract or the related ContractRelated Security, or the nonconformity of any Pool Receivable or Receivable, the related Contract or the Related Security with any such applicable law, rule or regulation;
(iviii) the failure as a result of any action by the Seller or the Servicer (so long as AFL or any Affiliate thereof is the Servicer) to vest and maintain vested in the Owner of an Eligible Asset an undivided percentage ownership interest, Funding Agent or to transfer to the extent Funding Agent, on behalf of such Eligible AssetPARCO and the APA Banks, an interest in the Receivables inwhich are, or purporting are purported to be inbe, the Receivables PoolPurchased Receivables, together with all Collections and Related Security, free and clear of any Adverse Claim Lien except for in favor of any Affected Party, whether existing at the lien, if applicable, referred to in Section 4.01(h)time of the Purchase of such Receivable or at any time thereafter;
(viv) the failure to file, or any delay in filingfiling (other than solely as a result of the action or inaction of any Affected Party), financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws against the Seller with respect to any Receivables inwhich are, or purporting are purported to be inbe, the Receivables PoolPurchased Receivables, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(viiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable inwhich is, or purporting is purported to be inbe, the Receivables Pool a Purchased Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(viiivi) any failure of the Seller, as Collection Agent or otherwiseServicer, to perform its duties or obligations in accordance with the provisions of Article VI;
(ixvii) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise, insurance the Financed Vehicle related to any Receivable or services which are the subject of any Contract;
(xviii) the commingling of Collections of Pool Receivables at failure to pay when due any time with other funds;
(xi) the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or
(xii) any breakage and other expensestaxes, if any, of the Investor or the Owner (including, without limitation, attorneys' feessales, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts excise or personal property taxes payable by the Seller or the Originator in connection with the funding or maintenance Purchased Receivables;
(ix) the commingling of any Eligible Asset and Collections of Purchased Receivables with any other funds except to the costs and expenses specifically set forth extent expressly permitted hereunder; or
(x) any other event similar in nature to the foregoing which (A) arises or results from such Affected Party's participation in the definition transactions evidenced by this Agreement or the ownership of Fixed Rate; orthe Purchased Assets or in respect of any Receivable or any Contract and (B) involves the failure of the Seller or the Servicer to perform its obligations hereunder or the documents executed pursuant hereto. Any amounts subject to the indemnification provisions of this Section 8.1 shall be paid by the Seller to the Funding Agent for the benefit of the Affected Parties within two Business Days following the Funding Agent's demand therefor.
(b) If any Affected Party is required to compensate a APA Bank as a result of any event or circumstance similar to those described in clauses (i) through (x) above (excluding, however, (i) compensation for amounts to the extent resulting from gross negligence or willful misconduct on the part of such APA Bank or (ii) recourse (except with respect to payment and performance obligations provided for in applicable documentation with such APA Bank) for uncollectible Purchased Receivables), then within ten (10) days after demand by such Affected Party, the Seller shall pay to such Affected Party such additional amount or amounts as may be necessary to pay such APA Bank the amounts due or to otherwise reimburse such Affected Party for any amounts paid by it.
Appears in 1 contract
Samples: Receivables Transfer Agreement (Arcadia Financial LTD)
Indemnities by the Seller. Without limiting any other rights which CNAI, the Agent, the Owner, Citibank each Owner or CNAI or any Affiliate thereof their Affiliates may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Agent, CNAI, the Owner, Citibank Owners and CNAI and each Affiliate thereof their Affiliates from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), ) awarded against or incurred by any of them arising out of or as a result of this Agreement or the ownership of Eligible Assets or in respect of any Receivable or any Contract, excluding, however, (ix) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the OwnerCNAI, Citibank or CNAI or any such Affiliate or Owner and their Affiliates, (iiy) recourse (except as otherwise specifically provided in this Agreement) for uncollectible ReceivablesPool Receivables or (z) Indemnified Amounts to the extent arising solely in connection with a dispute between or among CNAI, the Agent, any Owner or any of their respective Affiliates as a result of an alleged default by any such Person in the performance of any obligation owing to another such Person in connection with this Agreement. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the OwnerCNAI, Citibank each Owner and CNAI and each Affiliate thereof their Affiliates for Indemnified Amounts relating to or resulting from:
(ia) the creation transfer hereunder of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be other than an Eligible Receivable;
(iib) reliance on any representation or warranty made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report or any other information or report delivered by the Seller pursuant hereto hereto, or by the Parent pursuant to the Original Parent Support Agreement, which shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iiic) the failure by the Seller (individually or as Collection Agent) to comply with any term, provision or covenant contained in this Agreement, or with any applicable law, rule or regulation with respect to any Pool Receivable Receivable, the related Contract or the related ContractRelated Security, or the nonconformity of any Pool Receivable or Receivable, the related Contract or the Related Security with any such applicable law, rule or regulation;
(ivd) the failure to vest and maintain vested in the each Owner of an Eligible Asset an or to transfer to each Owner a valid and perfected first priority undivided percentage ownership interest, to the extent of such each Eligible AssetAsset owned by it hereunder, in the Receivables inwhich are, or purporting are intended to be inbe, the Receivables PoolPool Receivables, together with all Collections and Related Security, free and clear of any Adverse Claim except for whether existing at the lien, if applicable, referred to in Section 4.01(h)time of the Purchase of such Eligible Asset or at any time thereafter;
(ve) the failure at any time on or before the Termination Date of the sum of all Eligible Assets and all "Eligible Assets" under and as defined in the Parallel Purchase Agreement to be less than or equal to 100%;
(f) the failure to file, perfect or any delay in filingperfecting as against the Seller, any of its Affiliates or any Dealer under the UCC of all applicable jurisdictions or other applicable laws (whether by the filing of financing statements or other similar instruments or documents under or otherwise) the UCC interests of any applicable jurisdiction or other applicable laws with respect to any the Owners and the Agent in all Receivables inthat are, or purporting are intended to be inbe, the Receivables PoolPool Receivables, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(viig) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable inwhich is, or purporting is intended to be inbe, the Receivables a Pool Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise Equipment or services related to such Receivable or the furnishing or failure to furnish such merchandise Equipment or services;
(viiih) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ixi) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise, insurance Equipment or services which are the subject of any Receivable or Contract;
(xj) the failure by the Seller, any of its Affiliates or any Dealer to pay when due any taxes, including without limitation, sales, excise or personal property taxes payable in connection with the Receivables;
(k) the failure of the Parent, the Seller, any Dealer or any of their respective agents and representatives to collect Receivables as contemplated by the related Contract and the Credit and Collection Policy or the failure of the Parent, any Dealer or any of their respective agents or representatives to remit to the Seller Collections of Pool Receivables remitted to the Parent or any such Dealer, agent or representative, or the failure of the Seller or any of its agents and representatives to remit to the Collection Agent or the Agent, Collections of Pool Receivables remitted to the Seller or such agent or representative;
(l) the termination as a Dealer of any Dealer by the Parent or any Affiliate;
(m) any claim, litigation or other action asserted or commenced by a Dealer for the payment to such Dealer of any dealer reserve or other amounts or other obligations allegedly owing to such Dealer by the Seller, the Parent or any of their respective Affiliates;
(n) any failure of the Seller or the Parent to give reasonably equivalent value to any Dealer or the Parent, as applicable in consideration for the transfer by such Dealer or the Parent, as applicable of any Receivable and related Contract, or any attempt by any Person to void any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code;
(o) the failure by the Seller, the Parent or any Dealer to be duly qualified to do business, to be in good standing or to have filed appropriate fictitious or assumed name registration documents in any jurisdiction;
(p) the occurrence with respect to any Dealer of any event of the type described in Section 7.01(f) hereof; or
(q) the commingling of Collections of Pool Receivables at any time with other funds;
(xi) , whether by a Dealer, the enforcement Seller, the Parent or legal recognition any of any prior interest under their respective affiliates. Any amounts subject to the Mortgage in or indemnification provisions of this Section 10.01 shall be paid by Seller to any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; orAgent within two Business Days following Agent's demand therefor.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Snap on Inc)
Indemnities by the Seller. Without limiting any other rights which that the Agent, the OwnerInvestors, Citibank or CNAI the Banks or any Affiliate thereof entity which provides liquidity or credit enhancement or any of their respective Affiliates or agents (each, an “Indemnified Party”) may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Party from and against any and all claims, damages, lossescosts, claims, liabilities and related costs and expenses, losses and liabilities (including reasonable attorneys' fees and disbursements ’ fees) (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 resulting from this Agreement or the ownership of Eligible Assets Receivable Interests or in respect of any Receivable or any Contract, excluding, however, (ia) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agentsuch Indemnified Party, the Owner, Citibank (b) recourse for uncollectible Receivables or CNAI (c) any income taxes or any other tax or fee measured by income incurred by such Affiliate Indemnified Party, arising out of or (ii) recourse (except as otherwise specifically provided a result of this Agreement or the ownership of Receivable Interests or in this Agreement) for uncollectible Receivablesrespect of any Receivable or any Contract. Without limiting or being limited by the foregoingforegoing (but subject to the aforementioned exclusions), the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof each Indemnified Party any and all amounts necessary to indemnify the Agent, the Owner, Citibank such Indemnified Party from and CNAI against any and each Affiliate thereof for all Indemnified Amounts relating to or resulting fromfrom any of the following:
(i) the creation of an undivided percentage ownership or security interest in any Receivable which purports to be part of the Net Receivables Pool Balance but which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty or statement made or deemed made by the Seller (or any of its officers) under or in connection with pursuant to this Agreement, Agreement and the Original Agreement, any Investor Report or any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, Transaction Documents which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by the Seller or the Originators to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract, ; or the nonconformity failure of any Pool Receivable or the related Contract with to conform to any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Owner Agent on behalf of an Eligible Asset an the Investors and the Banks (a) a first priority perfected undivided percentage ownership or security interest, to the extent of such Eligible Asseteach Receivable Interest, in the Receivables in, or purporting to be in, the Receivables PoolPool and the Related Security and Collections in respect thereof or (b) a first priority perfected security interest as provided in Section 1.09, in each case free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h)Claim;
(v) the failure to filehave filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables PoolPool and the Related Security and Collections in respect thereof, whether at the time of any Purchase purchase or reinvestment or at any subsequent time;
(vi) without double counting for any failure by the Seller to timely and duly perform and comply with all material provisionsDilution for which a deemed collection has been received under Section 1.04(e)(i) of this Agreement, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the ObligorObligor or any other credit related loss) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or servicesservices or relating to collection activities with respect to such Receivable (to the extent such collection activities were performed by the Seller acting as Collection Agent);
(viiivii) any failure of the Seller, as Collection Agent or otherwise, Seller to perform its duties or obligations in accordance with the provisions hereof (including any failure to comply with the covenants contained in Exhibit IV) or of Article VIthe SPV Purchase Agreement;
(ixviii) any products liability or other claim (including any claim for unpaid sales, excise or other taxes) arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
(xix) the commingling by the Seller or the Collection Agent of Collections of Pool Receivables at any time with other fundsfunds or the failure of Collections to be deposited into Lock-Box Accounts;
(x) any investigation, litigation or proceeding related to this Agreement or the ownership of Receivable Interests or in respect of any Receivable or Related Security;
(xi) the enforcement any Collection Agent Fees or legal recognition of any prior interest under the Mortgage in or other costs and expenses payable to any Receivables or replacement Collection Agent, to the proceeds thereofextent in excess of the Collection Agent Fees payable to the Collection Agent hereunder; or
(xii) any breakage and claim brought by any Person other expensesthan an Indemnified Party arising from any activity by the Seller in servicing, if any, of the Investor administering or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of collecting any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; orReceivable.
Appears in 1 contract
Samples: Receivables Purchase Agreement (United Rentals North America Inc)
Indemnities by the Seller. (a) Without limiting any ------------------------- other rights which the Agent, the Owner, Citibank or CNAI or any Affiliate thereof Affected Party may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the AgentPurchaser and FNBB, individually and in its capacity as Deal Agent (the Owner"Indemnified Parties"), Citibank and CNAI and each Affiliate thereof from and against ------------------- any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), ) awarded against or ------------------- incurred by any of them such Indemnified Party arising out of or as a result of this Agreement Agreement, any of the other Facility Documents, or any interest of any such Indemnified Party in, to or under the ownership of Eligible Assets Purchased Interests, the Equipment Collateral or in respect of any Receivable Asset or any ContractLease, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate Indemnified Party or (ii) recourse (except as otherwise specifically with respect to payment and performance obligations provided for in this Agreement) for uncollectible ReceivablesPurchased Assets. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Party for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report Purchase Notice or any other information or report delivered by or on behalf of the Seller pursuant hereto or to the Original Agreementhereto, which shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iiiii) the failure by the Seller or the Servicer to comply with any term, provision or covenant contained in this Agreement, the Lease Sale Agreement or any other Facility Document to which it is party or with any applicable law, rule or regulation with respect to any Pool Receivable Asset, the related Lease or the related ContractRelated Security, or the nonconformity of any Pool Receivable Asset, the related Lease or the related Contract Related Security with any such applicable law, rule or regulation;
(iii) any reduction of a Purchased Asset due to a Permitted Encumbrance (excluding any Permitted Encumbrance in favor of an Indemnified Party), whether existing at the time of the Lease Purchase of such Purchased Asset or at any time thereafter;
(iv) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with Equipment, goods, merchandise and/or services which are the failure to vest in the Owner of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables in, or purporting to be in, the Receivables Pool, free and clear subject of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h)Asset or Lease;
(v) the failure to filepay when due any taxes, including, without limitation, sales, excise or any delay personal property taxes payable by the Seller, LeaseVest or the Originator in filing, financing statements or other similar instruments or documents under connection with the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent timePurchased Assets;
(vi) any the failure by of the Seller Servicer to timely maintain, or cause the relevant Obligor to maintain in effect, policies of casualty and duly perform and comply general liability insurance with all material provisions, covenants and other promises required respect to be observed by it under any Contract the Leases related to the Pool Receivables;Purchased Assets and the Equipment related thereto, to the extent required pursuant to Section ------- 5.04(a)(ix); -----------
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment by such Indemnified Party of any Receivable inTaxes, or purporting to be in, the Receivables Pool (including, without limitation, a defense based any Taxes imposed by any jurisdiction on such Receivable amounts payable and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto to the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from extent caused by the sale of the merchandise or services related to such Receivable or the furnishing Seller's actions or failure to furnish act; provided that an Indemnified Party, -------- making a demand for indemnity payment shall provide the Seller, at its address referred to in Section 10.02, with a certificate from the relevant ------------- taxing authority or from a responsible officer of such merchandise Indemnified Party stating or services;otherwise evidencing that such Indemnified Party has made payment of such Taxes and, within 30 days thereafter, will provide a copy of or extract from documentation, if available, furnished by such taxing authority evidencing assertion or payment of such Taxes; and
(viii) any failure payment made by or on behalf of an Indemnified Party (1) to the SellerLock-Box Bank with respect to the Lock-Box Account or (2) to the Collection Account Bank with respect to the Collection Account, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ix) any products liability claim arising out of or whether in connection with merchandisereimbursement for a returned item, insurance or services which are for any other reason whatsoever. Any amounts subject to the subject indemnification provisions of any Contract;
(x) this Section 9.01 shall ------------ be paid by the commingling of Collections of Pool Receivables at any time with other funds;
(xi) Seller to the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; orDeal Agent within two Business Days following Deal Agent's demand therefor.
Appears in 1 contract
Samples: Lease Receivables Purchase Agreement (Bankvest Capital Corp)
Indemnities by the Seller. Without limiting any other rights which the Agent, the Owner, Citibank or CNAI or any Affiliate thereof may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), awarded against or incurred by any of them arising out of or as a result of this Agreement or the ownership of Eligible Assets or in respect of any Receivable or any Contract, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting from:
: (i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
; (ii) reliance on any representation or warranty made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report or any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which shall have been false or incorrect in any material respect when made or deemed made;
; (iii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule or regulation;
; <PAGE> 50 44 (iv) the failure to vest in the Owner of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables in, or purporting to be in, the Receivables Pool, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h);
; (v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent time;
; (vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
; (vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
; (viii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
; (ix) any products liability claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
; (x) the commingling of Collections of Pool Receivables at any time with other funds;
; (xi) the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or
or (xii) any breakage and other expenses, if any, of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; oror (xii) any claim brought by any Swap Counterparty (as that term is defined in the Indenture) arising out of or in connection with the Intercreditor Agreement. <PAGE> 51 45 ARTICLE XI MISCELLANEOUS SECTION
Appears in 1 contract
Indemnities by the Seller. Without limiting any other rights which the Agent, the Owner, Citibank or CNAI or any Affiliate thereof Purchaser may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the AgentPurchaser and its assigns and transferees (each, the Owner, Citibank and CNAI and each Affiliate thereof an "Indemnified Party") from and against any and all damages, claims, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), awarded against or incurred by any of them Indemnified Party arising out of or as a result of this Agreement or the ownership purchase or contribution of Eligible Assets any Transferred Receivables or in respect of any Transferred Receivable or any Contract, excludingincluding, howeverwithout limitation, (i) Indemnified Amounts to the extent resulting from gross negligence arising out of or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting froma result of:
(i) the creation of an undivided percentage ownership interest inclusion, or purported inclusion, in any Purchase of any Receivable which is (unless expressly purported not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable) that is not an Eligible Receivable on the date of such Purchase, or the characterization in any Seller Report or other statement made by the Seller of any Transferred Receivable as an Eligible Receivable which is not an Eligible Receivable as of the date of such Seller Report or statement;
(ii) reliance on any representation or warranty or statement made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report or any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Pool Transferred Receivable or the related Contract, ; or the nonconformity failure of any Pool Transferred Receivable or the related Contract with to conform to any such applicable law, rule or regulation;
(iv) the failure to vest in the Owner Purchaser absolute ownership of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables inthat are, or purporting that purport to be inbe, the Receivables Poolsubject of a Purchase or contribution under this Agreement and the Related Security and Collections in respect thereof, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h)Claim;
(v) the failure of the Seller to filehave filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables inthat are, or purporting that purport to be inbe, the Receivables Poolsubject of a Purchase or contribution under this Agreement and the Related Security and Collections in respect thereof, whether at the time of any Purchase or reinvestment contribution or at any subsequent time;
(vi) any failure by restriction applicable to Persons other than the Seller that inhibits their ability to timely and duly perform and comply with all material provisionsexercise their rights under this Agreement due to a confidentiality provision in a Contract that purports to restrict the ability of such Persons to exercise their rights under this Agreement, covenants and other promises required including, without limitation, their right to be observed by it under any Contract related to review the Pool ReceivablesContract;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable inthat is, or purporting that purports to be inbe, the Receivables Pool subject of a Purchase or contribution under this Agreement (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or servicesservices or relating to collection activities with respect to such Receivable (if such collection activities were performed by the Seller acting as Collection Agent);
(viii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VIhereof or to perform its duties or obligations under any Contract related to a Transferred Receivable;
(ix) any products liability or other claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
(x) the commingling of Collections of Pool Transferred Receivables by the Seller or a designee of the Seller, as Collection Agent or otherwise, at any time with other fundsfunds of the Seller or an Affiliate of the Seller;
(xi) any investigation, litigation or proceeding related to this Agreement or the enforcement use of proceeds of Purchases or legal recognition the ownership of Receivables, the Related Security, or Collections with respect thereto or in respect of any prior interest under the Mortgage in Receivable, Related Security or to any Receivables or the proceeds thereof; orContract;
(xii) any breakage and other expenses, if any, failure of the Investor Seller to comply with its covenants contained in Section 5.01;
(xiii) any Collection Agent Fees or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the other costs and expenses specifically set forth payable to any replacement Collection Agent, to the extent in excess of the definition Collection Agent Fees payable to the Seller hereunder;
(xiv) any claim brought by any Person other than an Indemnified Party arising from any activity by the Seller or any Affiliate of Fixed Ratethe Seller in servicing, administering or collecting any Transferred Receivable; or
(xv) any Dilution with respect to any Transferred Receivable. It is expressly agreed and understood by the parties hereto (i) that the foregoing indemnification is not intended to, and shall not, constitute a guarantee of the collectibility or payment of the Transferred Receivables and (ii) that nothing in this Section 8.01 shall require the Seller to indemnify any Person (A) for Receivables which are not collected, not paid or uncollectible on account of the insolvency, bankruptcy, or financial inability to pay of the applicable Obligor, (B) for damages, losses, claims or liabilities or related costs or expenses resulting from such Person's gross negligence or willful misconduct, or (C) for any income taxes or franchise taxes incurred by such Person arising out of or as a result of this Agreement or in respect of any Transferred Receivable or any Contract.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Ck Witco Corp)
Indemnities by the Seller. Without limiting any other rights which that the Agent, the Owner, Citibank or CNAI or any Affiliate thereof Issuer may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Issuer from and against any and all damages, losses, claims, losses and liabilities and related costs and expenses, (including reasonable attorneys' fees and disbursements fees) (all of the foregoing being collectively referred to as "Indemnified AmountsINDEMNIFIED AMOUNTS"), awarded against or incurred by any of them ) arising out of or as a result resulting from any of this Agreement or the ownership of Eligible Assets or in respect of any Receivable or any Contractfollowing, excluding, however, (i) Indemnified Amounts (a) to the extent resulting from the gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI Issuer (or any such Affiliate assignee thereof, including without limitation the Indenture Trustee or any Investor Noteholder), (b) constituting recourse for Designated Receivables which are not collected, not paid or uncollectible on account of the insolvency, bankruptcy, inability to pay or lack of creditworthiness of the applicable Obligor or (iic) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting the foregoing, the Seller shall pay on demand attributable to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting fromExcluded Taxes:
(ia) the creation transfer by the Seller of an undivided percentage ownership any interest in any Receivable which is not at the date of the creation of such interest an Eligible Purchased Receivable or which thereafter ceases Receivables Property or proceeds thereof to be an Eligible Receivablea Person other than the Issuer;
(iib) reliance on any representation or warranty or statement made or deemed made by or on behalf of the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, Agreement or in any Investor Report or any other information certificate or report delivered by the Seller pursuant hereto or to the Original Agreementthat, which in either case, shall have been false or incorrect in any material respect when made or deemed made;
(iiic) the failure by the Seller to comply with any applicable law, rule or regulation of any governmental authority with respect to any Pool Purchased Receivable or the related ContractReceivables Property, or the nonconformity of any Pool Purchased Receivable or the related Contract Receivables Property with any such applicable law, rule or regulation;
(ivd) the failure to vest and maintain vested in the Owner of Issuer an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, interest in the any Purchased Receivable or related Receivables in, or purporting to be in, the Receivables PoolProperty, free and clear of any Adverse Claim except for Claim, other than Permitted Liens, whether existing at the lien, if applicable, referred to in Section 4.01(h)time of the purchase of such Purchased Receivable or related Receivables Property or at any time thereafter;
(ve) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Purchased Receivables in, or purporting to be in, related Receivables Property of the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent timeSeller;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(viif) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Purchased Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Purchased Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor fully enforceable against it the Obligor in accordance with its terms), or any other claim resulting from the sale of the merchandise goods or services related to any such Purchased Receivable or the furnishing or failure to furnish such merchandise goods or services;
(viiig) any failure of the Seller, as Collection Agent or otherwise, Seller to perform its duties or obligations in accordance with under this Agreement or the provisions of Article VIother Transaction Documents;
(ixh) any products liability claim or claim involving environmental liability arising out of or in connection with merchandise, insurance goods or services which that are the subject of any ContractPurchased Receivable or Receivables Property;
(xi) the commingling of Collections of Pool Receivables at any time with other fundsfunds of the Seller;
(xij) any tax or governmental fee or charge (but not including any Excluded Taxes), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the enforcement reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or legal recognition ownership of any prior Purchased Receivable or related Receivables Property, or any interest under the Mortgage therein or in any merchandise which secure any such Purchased Receivables, such related Receivables Property or to any Receivables other rights or the proceeds thereofassets transferred hereunder; or
(xiik) any breakage and other expensesgovernmental investigation, if any, litigation or proceeding related to this Agreement or in respect of any Purchased Receivable or related Receivables Property of the Investor or Seller. The Seller shall pay on demand to the Owner (includingIssuer any and all amounts necessary to indemnify the Issuer from and against any and all Indemnified Amounts. Notwithstanding the foregoing, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts the Seller shall not be required to indemnify the Issuer for any Indemnified Amount that results from any delay in connection with the funding or maintenance collection of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; orPurchased Receivables or any default by an Obligor with respect to any Purchased Receivables.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Goodyear Tire & Rubber Co /Oh/)
Indemnities by the Seller. Without limiting any other rights which the Agent, the Owner, Citibank or CNAI or any Affiliate thereof Purchaser may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the AgentPurchaser and its assigns and transferees (each, the Owner, Citibank and CNAI and each Affiliate thereof an “Indemnified Party”) from and against any and all damages, claims, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' ’ fees and disbursements (all of the foregoing being collectively referred to as "“Indemnified Amounts"”), awarded against or incurred by any of them Indemnified Party arising out of or as a result of this Agreement or the ownership purchase or contribution of Eligible Assets any Transferred Receivables from the Seller hereunder or in respect of any Transferred Receivable transferred by the Seller hereunder or any related Contract, excludingincluding, howeverwithout limitation, (i) Indemnified Amounts to the extent resulting from gross negligence arising out of or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting froma result of:
(i) the creation of an undivided percentage ownership interest inclusion, or purported inclusion, in any Purchase of any Receivable that is not an Eligible Receivable on the date of such Purchase, or the characterization in any Seller Report or other statement made by the Seller of any Transferred Receivable as an Eligible Receivable which is not at an Eligible Receivable as of the date of the creation of such interest an Eligible Receivable Seller Report or which thereafter ceases to be an Eligible Receivablestatement;
(ii) reliance on any representation or warranty or statement made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report or any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Pool Transferred Receivable or the related Contract, ; or the nonconformity failure of any Pool Transferred Receivable transferred by the Seller hereunder or the related Contract with to conform to any such applicable law, rule or regulation;
(iv) the failure to vest in the Owner Purchaser absolute ownership of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables inthat are, or purporting that purport to be inbe, the Receivables Poolsubject of a Purchase or contribution under this Agreement and the Related Security and Collections in respect thereof, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h)Claim;
(v) the failure of the Seller to filehave filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables inthat are, or purporting that purport to be inbe, the Receivables Poolsubject of a Purchase or contribution under this Agreement and the Related Security and Collections in respect thereof, whether at the time of any Purchase or reinvestment contribution or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable inoriginated by the Seller that is, or purporting that purports to be inbe, the Receivables Pool subject of a Purchase or contribution under this Agreement (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or servicesservices or relating to collection activities with respect to such Receivable (if such collection activities were performed by the Seller acting as Collection Agent);
(viiivii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VIhereof or to perform its duties or obligations under any Contract related to a Transferred Receivable originated by the Seller;
(ixviii) any products liability or other claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
(xix) the commingling of Collections of Pool Transferred Receivables by the Seller or a designee of the Seller, as Collection Agent or otherwise, at any time with other fundsfunds of the Seller or an Affiliate of the Seller;
(x) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Purchases or the ownership of Receivables, the Related Security, or Collections with respect thereto or in respect of any Receivable, Related Security or Contract;
(xi) any failure of the enforcement or legal recognition of any prior interest under the Mortgage Seller to comply with its covenants contained in or to any Receivables or the proceeds thereof; orthis Agreement;
(xii) any breakage and Collection Agent Fees or other expenses, if any, of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth payable to any replacement Collection Agent;
(xiii) any claim brought by any Person other than an Indemnified Party arising from any activity by the Seller or any Affiliate of the Seller in the definition of Fixed Rateservicing, administering or collecting any Transferred Receivable; or
(xiv) any Dilution with respect to any Transferred Receivable. It is expressly agreed and understood by the parties hereto (i) that the foregoing indemnification is not intended to, and shall not, constitute a guarantee of the collectibility or payment of the Transferred Receivables and (ii) that nothing in this Section 8.01 shall require the Seller to indemnify any Person (A) for Receivables which are not collected, not paid or uncollectible on account of the insolvency, bankruptcy, or financial inability to pay of the applicable Obligor, (B) for damages, losses, claims or liabilities or related costs or expenses to the extent found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from such Person’s gross negligence or willful misconduct, or (C) for any income taxes or franchise taxes incurred by such Person arising out of or as a result of this Agreement or in respect of any Transferred Receivable or any Contract.
Appears in 1 contract
Indemnities by the Seller. (a) Without limiting any other rights which that the Purchasers, the Administrative Agent, the OwnerLead Arrangers, Citibank the Syndication Agent or CNAI the Purchaser Agent or any Affiliate thereof of their respective officers, directors, employees, attorneys, agents, representatives, transferees, successors or assigns (each, an “Indemnified Person”) may have hereunder or under applicable law, the Seller hereby agrees to indemnify and hold harmless each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Person from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), awarded Amounts that may be claimed or asserted against or incurred by any such Indemnified Person in connection with or arising out of them the transactions contemplated under this Agreement or under any other Related Document or any actions or failures to act in connection therewith, including any and all reasonable legal costs and expenses arising out of or incurred in connection with disputes between or among any parties to any of the Related Documents; provided, that the Seller shall not be liable for any indemnification to an Indemnified Person to the extent that any such Indemnified Amount (x) results from such Indemnified Person’s gross negligence or willful misconduct, in each case as finally determined by a court of competent jurisdiction or (y) constitutes recourse for uncollectible or uncollected Transferred Receivables as a result of this Agreement the insolvency, bankruptcy or the ownership failure (without cause or justification triggered by the actions of Eligible Assets or in respect of any Receivable Seller or any Contract, excluding, however, (iAffiliate thereof) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct inability on the part of the Agentrelated Obligor to perform its obligations thereunder. Subject to clauses (x) and (y) of the proviso in the immediately preceding sentence, but without limiting the Owner, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting generality of the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof each Indemnified Person any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report Agreement or any other Related Document (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or on any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which thereto that shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iiiii) the failure by the Seller to comply with any term, provision or covenant contained in this Agreement, any other Related Document or any agreement executed in connection herewith or therewith (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality), any applicable law, rule or regulation with respect to any Pool Transferred Receivable or the related ContractContract therefor, or the nonconformity of any Pool Transferred Receivable or the related Contract therefor with any such applicable law, rule or regulation;
(iv1) the failure to vest and maintain vested in the Owner Seller valid and properly perfected title to and sole legal and beneficial ownership of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables inthat constitute Transferred Receivables, or purporting to be in, the Receivables Pooltogether with all Collections in respect thereof and all other Seller Assets, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h);
and (v2) the failure to filemaintain or transfer to the Purchaser Agent, or for the benefit of itself and other Specified Parties, a first priority, perfected security interest in any delay in filing, financing statements or other similar instruments or documents under portion of the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent timeSeller Assets;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(viiiv) any dispute, claim, offset or defense of any Obligor (other than its discharge in bankruptcy of the Obligorbankruptcy) of the Obligor to the payment of any Transferred Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, including a defense based on any Dilution Factor or on such Receivable or the related Contract therefor not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related giving rise to such Receivable or the furnishing of or failure to furnish such merchandise or servicesservices or relating to collection activities with respect to such Receivable (if such collection activities were performed by any of its Affiliates acting as Servicer);
(viii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ixv) any products liability claim or other claim arising out of or in connection with merchandise, insurance or services which are that is the subject of any ContractContract with respect to any Transferred Receivable;
(vi) the commingling of Collections with respect to Transferred Receivables by the Seller at any time with its other funds or the funds of any other Person;
(vii) any failure by the Seller to cause the filing of, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or any other applicable laws with respect to any Transferred Receivable that is the subject of a Purchase hereunder, whether at the time of any such Purchase or at any subsequent time to the extent such filing is necessary to maintain the perfection and priority of the interests of the Purchaser Agent, for the benefit of the Purchasers, in the Transferred Receivables;
(viii) any investigation, litigation or proceeding related to this Agreement or any other Related Document or the ownership of Receivables or Collections with respect thereto or any other investigation, litigation or proceeding relating to the Seller, the Servicer, any Transferor or any Originator brought against any Indemnified Person as a result of any of the transactions contemplated hereby or by any other Related Document;
(ix) any failure of (x) a Lockbox Processor to comply with the terms of the applicable Lockbox Control Agreement, or (y) the Collection Account Bank to comply with the terms of the Collection Account Agreement;
(x) the commingling of Collections of Pool Receivables at any time with other fundsTermination Event described in Section 8.01(d) or (e) relating to Seller;
(xi) any failure of the enforcement or legal recognition Seller to give reasonably equivalent value to any Transferor under the Transfer Agreement in consideration of the transfer by such Transferor of any prior interest Receivable, or any attempt by any Person to void such transfer under the Mortgage in statutory provisions or to any Receivables common law or the proceeds thereof; orequitable action;
(xii) any breakage and other expenses, if any, failure of any Transferor to give reasonably equivalent value to any Originator under the Sale Agreement in consideration of the Investor transfer by such Originator of any Receivable, or any attempt by an Person to void such transfer under statutory provisions or common law or equitable action;
(xiii) any action or omission by Seller or any Transaction Party which reduces or impairs the rights of the Purchaser Agent or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection Specified Parties with respect to any Receivable or the funding or maintenance value of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Ratesuch Receivable;
(xiv) any attempt by any Person to void any Purchase or any other interest created hereunder under statutory provisions or common law or equitable action; or
(xv) any withholding, deduction or Charge imposed upon any payments with respect to any Transferred Receivable, any Seller Assigned Agreement or any other Seller Assets, other than in respect of Excluded Taxes.
(b) Any Indemnified Amounts subject to the indemnification provisions of this Section 10.01 not paid in accordance with Section 2.08 shall be paid by the Seller to the Indemnified Person entitled thereto within five Business Days following demand therefor.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Univision Holdings, Inc.)
Indemnities by the Seller. Without limiting prejudice to any other rights which the Agent, Servicing Agent or the Owner, Citibank or CNAI or any Affiliate thereof Purchasers may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of indemnifies and saves the AgentServicing Agent and the Purchasers and their respective officers, the Ownerdirectors, Citibank employees, agents and CNAI and each Affiliate thereof Affiliates harmless from and against any and all damages, losses, claims, liabilities and related costs and expenses, expenses (including reasonable attorneys' fees and disbursements disbursements) (all of collectively, the foregoing being collectively referred to as "Indemnified AmountsLiabilities"), ) awarded against or incurred by any of them arising out of or as a result of this Agreement or the ownership of Eligible Assets or in respect of any Receivable or any Contract, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting fromof:
(ia) the creation purported sale by the Seller (and acceptance of the Purchase Price therefor) of an undivided percentage ownership interest in Eligible Receivables of either Pool at any Receivable which is not at time that the date then Receivables Ownership Interests of the creation of both Purchasers together in such interest an Eligible Receivable Pool equals or which thereafter ceases to be an Eligible Receivableexceeds 100%;
(iib) the reliance by the Servicing Agent or the Purchasers on any representation or warranty made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Portfolio Report or any other information or report delivered by the Seller pursuant hereto or to the Original Agreementhereto, which shall have been false or was incorrect in any material respect when made or deemed made;
(iiic) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Pool Eligible Receivable or the to comply with any related Contract, or the nonconformity of any Pool Eligible Receivable or the any related Contract with any such applicable law, rule or regulation;
(ivd) the failure to vest in the Owner of an Eligible Asset an Purchasers, or to transfer to the Purchasers, legal and equitable title to, and ownership of, undivided percentage ownership interestinterests in, to the extent of such the Receivables Ownership Interests purchased by the Purchasers hereunder, the Eligible Asset, in the Receivables in, or purporting to be in, the Receivables each Pool, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h)Claim;
(ve) the failure timely to file, or any delay in filing, file financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, in or purporting to be in, the Receivables Poolin Pool A or Pool B, whether at the time of any Purchase or reinvestment purchase of the Receivables Ownership Interests or at any subsequent time;
(vif) the return or transfer by either Purchaser of any failure by amount of Collections received pursuant to Article II to the Seller to timely and duly perform and comply with all material provisionsor any other Person claiming by, covenants and other promises required to be observed by it through or under the Seller for any Contract related to the Pool Receivablesreason whatsoever;
(viig) any dispute, claim, offset or defense of any Obligor (other than discharge discharges in bankruptcy of the Obligor) of the Obligor to the payment of any Eligible Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, including a defense based on such Eligible 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 sale, use, operation or ownership of, or defects in or breaches of warranties with respect to the merchandise or services related relating to such Eligible Receivable or the furnishing or failure to furnish such merchandise or services, other than any such defense, offset, claim or dispute arising through (or out of the actions of), or asserted against, the Purchasers, or either of them, or their respective Affiliates, agents, representatives, successors or assigns;
(viiih) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VIIII;
(ixi) without duplication of the other provisions of this Agreement, any products liability claim arising out loss or expense (including any loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by CIBC in connection with merchandise, insurance or services which are order to maintain any portion of the subject Purchased Amount of the Standby Purchaser in either Pool at a Purchase Discount Rate determined by reference to the LIBO Rate (Reserve Adjusted)) as a result of any Contract;
repayment or prepayment of such portion (xor conversion of the Purchase Discount Rate with respect to such portion) on a date other than the commingling scheduled last day of Collections of Pool Receivables at any time the applicable Fixed Periods with other funds;
(xi) the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereofrespect thereto; or
(xiij) any breakage tax being imposed on any of them on account of any payment made under this Section 9.
1. If and other expensesto the extent that the foregoing undertaking may be unenforceable for any reason, if any, the Seller hereby agrees to make the maximum contribution to the payment of each of the Investor Indemnified Liabilities which is permissible under applicable law. Notwithstanding the foregoing, in the event that there is any Indemnified Liability that arises solely in respect to one or more Eligible Receivables and is in an amount equal to the Owner (value(or applicable portion thereof) of such Eligible Receivable or Eligible Receivables, including, without limitation, attorneys' feespursuant to clause (g) above, disbursements and accrued interest) the Seller shall pay the amount of interest rate swapssuch Indemnified Liability directly to the Collection Agent, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth Collection Agent shall distribute such amount pursuant to Article II hereof in the definition of Fixed Rate; orsame manner and under the same terms and conditions as if such payment had been received from the Obligor with respect to the Eligible Receivable.
Appears in 1 contract
Samples: Receivables Sale Agreement (Goodyear Tire & Rubber Co /Oh/)
Indemnities by the Seller. Without limiting any other rights which the Deal Agent, the OwnerLiquidity Agent, Citibank any Secured Parties, the Registrar or CNAI their assignees, or any Affiliate thereof of their respective Affiliates may have hereunder or under applicable lawany Requirements of Law, the Seller hereby agrees to indemnify each of the Deal Agent, the OwnerSecured Parties, Citibank and CNAI the Registrar or their assignees and each Affiliate of their respective Affiliates and officers, directors, employees and agents thereof (collectively, the "Indemnified Parties") from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), ) awarded against or incurred by by, any such Indemnified Party or other non-monetary damages of any such Indemnified Party any of them arising out of or as a result of this Agreement or the ownership of Eligible Assets or in respect of any Receivable or any ContractAgreement, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible ReceivablesIndemnified Party. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) any Loan treated as or represented by the creation of Seller to be an undivided percentage ownership interest in any Receivable Eligible Loan which is not at the date of the creation of such interest applicable time an Eligible Receivable or which thereafter ceases to be an Eligible ReceivableLoan;
(ii) reliance on any representation or warranty made or deemed made by the Seller Seller, the Servicer (or one of its Affiliates) or any of its officers) their respective officers under or in connection with this Agreement, the Original Agreement, any Investor Report or any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iii) the failure by the Seller or the Servicer (or one of its Affiliates) to comply with any applicable lawterm, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Requirements of Law, rule or regulation with respect to any Pool Receivable or Loan comprising a portion of the related ContractAssets Pool, the Related Property, or the nonconformity of any Pool Receivable or Loan, the related Contract Related Property with any such applicable lawRequirements of Law, rule or regulationregulation or any failure by the Originator, the Seller or any Affiliate thereof to perform its respective duties under the Loans included as a part of the Assets;
(iv) the failure to vest and maintain vested in the Owner of an Eligible Asset relevant Purchaser or to transfer to such Purchaser, an undivided percentage ownership interest, to the extent of such Eligible Asset, interest in the Receivables inAssets, or purporting to be in, the Receivables Pooltogether with all Collections, free and clear of any Adverse Claim except for whether existing at the lien, if applicable, referred to in Section 4.01(h)time of any Purchase or at any time thereafter;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(viii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ix) any products liability claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
(x) the commingling of Collections of Pool Receivables at any time with other funds;
(xi) the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; orother
Appears in 1 contract
Samples: Loan Purchase and Servicing Agreement (First International Bancorp Inc)
Indemnities by the Seller. Without limiting any other rights which the Agent, the Owner, Citibank or CNAI or any Affiliate thereof Indemnified Person may have hereunder under any Transaction Document or under applicable law, the Seller hereby agrees to indemnify and hold harmless each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Person from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), Amounts awarded against or incurred by any of them such Indemnified Party arising out of or as a result of this Agreement any Transaction Document or the ownership of Eligible Assets the Asset Interest or in respect of any Receivable Asset or any Contract, excluding, however, (ia) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or Indemnified Person and (iib) recourse (except as otherwise specifically with respect to payment and performance of obligations provided for in this Agreement) for uncollectible ReceivablesDefaulted Contracts. If the Seller has made any indemnity payment pursuant to this Section 8.1 and such payment fully indemnified the recipient thereof and the recipient thereafter collects any payments from others in respect of such Indemnified Amounts then, the recipient shall repay to the Seller an amount equal to the amount it has collected from others (and does not have to repay to such others) in respect of such Indemnified Amounts. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Parties for Indemnified Amounts relating to or resulting from:
(i) the creation of any Purchased Asset treated as, or represented to be, an undivided percentage ownership interest in any Receivable Eligible Contract which is not at the date of the creation of such interest applicable time an Eligible Receivable or which thereafter ceases to be an Eligible ReceivableContract;
(ii) reliance on any representation or warranty made or deemed made by the Seller Seller, the Servicer (if the Originator or one of its Affiliates) or any of its officers) their respective officers under or in connection with this Agreement, the Original Agreement, any Investor Report or any other information or report delivered by the Seller pursuant hereto or to the Original AgreementTransaction Document, which shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iii) the failure by the Seller or the Servicer (if the Originator or one of its Affiliates) to comply with any term, provision or covenant contained in any Transaction Document or any agreement executed in connection with any Transaction Document, or with any applicable law, rule or regulation with respect to any Pool Receivable or Asset, the related Contract, or the nonconformity of any Pool Receivable or Asset, the related Contract with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Owner of an Eligible Asset Administrator or to transfer to the Administrator, an undivided percentage ownership interest, to the extent of such Eligible Asset, interest in the Receivables inAssets, or purporting to be in, the Receivables Pooltogether with all Collections, free and clear of any Adverse Claim except for whether existing at the lien, if applicable, referred to in Section 4.01(h)time of any Purchase or at any time thereafter;
(v) the failure to maintain, as of the close of business on each Business Day prior to the Termination Date, an amount of Capital outstanding which is less than or equal to the lesser of (x) the Purchase Limit on such Business Day or (y) the Capital Limit on such Business Day;
(vi) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables inAssets which are, or purporting are purported to be inbe, the Receivables PoolPool Assets, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable inAsset which is, or purporting is purported to be inbe, the Receivables Pool a Purchased Asset (including, without limitation, a defense based on such Receivable Asset 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 services related to such Receivable Asset or the furnishing or failure to furnish such merchandise or services;
(viii) any failure of the Seller, as Collection Agent Seller or otherwise, the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of Article VIthe Transaction Documents or any failure by the Originator, the Seller or any Affiliate thereof to perform its respective duties under the Contracts;
(ix) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise, insurance merchandise or services which are the subject of any Asset or Contract;
(x) the failure by Seller to pay when due any Taxes for which the Seller is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Pool Assets;
(xi) any repayment by the Administrator or MSFC of any amount previously distributed in reduction of Capital or payment of Yield or any other amount due hereunder or under any Hedging Agreement, in each case which amount the Administrator or MSFC believes in good faith is required to be repaid;
(xii) the commingling of Collections of Pool Receivables Assets at any time with other funds;
(xixiii) any investigation, litigation or proceeding related to any Transaction Documents or the enforcement use of proceeds of Purchases or legal recognition reinvestments or the ownership of the Asset Interest or in respect of any prior interest under the Mortgage in Asset or to any Receivables or the proceeds thereof; orContract;
(xiixiv) any breakage and other expensesfailure by the Seller to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Seller of any Assets or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, if any, of the Investor or the Owner (including, without limitation, attorneys' feesany provision of the Bankruptcy Code;
(xv) the failure of the Seller, disbursements and accrued interestthe Originator or any of their respective agents or representatives to remit to the Servicer or the Administrator, Collections of Pool Assets remitted to the Seller or any such agent or representative; or
(xvi) any amounts payable under the Hedge Transactions for any Settlement Period in excess of interest rate swaps, collars, forward agreements and future contracts in connection Interest Collections for such Settlement Period or any failure of the Hedge Transactions to comply at all times with the funding requirements of Section 5.4, including, without limitation, having a Hedge Notional Amount that complies at all times with Section 5.4(iii). Any amounts subject to the indemnification provisions of this Section 8.1 shall be paid by the Seller to the Administrator within two Business Days following the Administrator's demand therefor. Notwithstanding the foregoing, if any such amounts are paid pursuant to Section 2.9(b), then the Seller shall immediately deposit the amount so paid into the Collection Account for subsequent distribution in accordance with Section 2.9(b). If for any reason the indemnification provided above in this Section 8.1 is unavailable to the Indemnified Person or maintenance is insufficient to hold an Indemnified Person harmless, then Servicer shall contribute to the amount paid or payable by such Indemnified Person as a result of any Eligible Asset such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Person on the one hand and the costs and expenses specifically set forth in Seller on the definition other hand but also the relative fault of Fixed Rate; orsuch Indemnified Person as well as any other relevant equitable considerations. The parties hereto agree that the provisions of Section 8.1 shall not be interpreted to provide recourse to the Seller against loss by reason of the bankruptcy or insolvency (or other credit condition) of, or default by, related Obligor on, any Pool Asset.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Fidelity Leasing Inc)
Indemnities by the Seller. Without limiting any other rights which the Agent, the Owner, Citibank Owner or CNAI or any Affiliate thereof may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), awarded against or incurred by any of them arising out of or as a result of this Agreement or the ownership of Eligible Assets or in respect of any Receivable or any Contract, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank Owner or CNAI or any such Affiliate or Affiliate, (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible ReceivablesReceivables or (iii) any income taxes incurred by any of them arising out of or as a result of this Agreement or the ownership of Eligible Assets or in respect of any Receivable or any Contract. Without limiting the foregoing, the Seller shall pay on demand to indemnify each of the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest Ownership Interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report or any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule or regulation;
(iv) the failure to vest continuously in the Owner of an Eligible Asset an undivided percentage ownership interest, to the extent of such each Eligible Asset, in the Receivables in, or purporting to be in, the Receivables Pool, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h);
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly fully perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(viii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ix) any products liability claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
(x) the commingling of Collections of Pool Receivables at any time with other funds;
(xi) the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or
(xii) any breakage and other expensesexpenses and costs, if any, of the Investor Citibank, CNAI or the any Owner (including, including without limitation, limitation attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future futures contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; orby Citibank, CNAI or such Owner.
Appears in 1 contract
Samples: Trade Receivables Purchase and Sale Agreement (Detroit Edison Securitization Funding LLC)
Indemnities by the Seller. (a) Without limiting any other rights which that the Conduit Purchaser, the Committed Purchaser, the Administrative Agent, the OwnerCollateral Agent, Citibank or CNAI the Liquidity Agent, any Liquidity Lender, the Letter of Credit Agent or any Affiliate thereof Letter of Credit Provider or any of their respective officers, directors, employees, attorneys, agents or representatives (each, an "INDEMNIFIED PERSON") may have hereunder or under applicable law, the Seller hereby agrees to indemnify and hold harmless each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Person from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), awarded Amounts that may be claimed or asserted against or incurred by any such Indemnified Person in connection with or arising out of them the transactions contemplated under this Agreement or under any other Related Document or any actions or failures to act in connection therewith, including any and all legal costs and expenses arising out of or as incurred in connection with disputes between or among any parties to any of the Related Documents; PROVIDED, that the Seller shall not be liable for any indemnification to a result of this Agreement or Indemnified Person to the ownership of Eligible Assets or in respect of extent that any Receivable or any Contract, excluding, however, such Indemnified Amount (x) results from (i) with respect to any Indemnified Amounts to Person other than the extent resulting from Conduit Purchaser, such Indemnified Person's gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) with respect to any Indemnified Person, such Indemnified Person's willful misconduct, in each case as finally determined by a court of competent jurisdiction or (y) constitutes recourse (except as otherwise specifically provided in this Agreement) for uncollectible or uncollected Transferred Receivables. Without limiting the generality of the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof each Indemnified Person any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report Agreement or any other Related Document or on any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which thereto that shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iiiii) the failure by the Seller to comply with any term, provision or covenant contained in this Agreement, any other Related Document or any agreement executed in connection herewith or therewith, any applicable law, rule or regulation with respect to any Pool Transferred Receivable or the related ContractContract therefor, or the nonconformity of any Pool Transferred Receivable or the related Contract therefor with any such applicable law, rule or regulation;; or
(iv1) the failure to vest and maintain vested in the Owner Seller or the Purchasers valid and properly perfected title to and sole record and beneficial ownership of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables inthat constitute Transferred Receivables, or purporting to be in, the Receivables Pooltogether with all Collections in respect thereof, free and clear of any Adverse Claim except for the lienClaim, if applicable, referred to in Section 4.01(h);
(v2) the failure to filemaintain or transfer to the Purchasers a first, priority, perfected Lien in the Seller Collateral and (3) the failure to maintain or any delay in filingtransfer to the Administrative Agent a first priority, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent timeperfected Lien therein;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(viiiv) any dispute, claim, offset or defense of any Obligor (other than its discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Receivable in, or purporting to be in, that is the Receivables Pool subject of a Purchase hereunder (including, without limitation, including a defense based on such Transferred Receivable or the related Contract therefor not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related giving rise to such Transferred Receivable or the furnishing of or failure to furnish such merchandise or servicesservices or relating to collection activities with respect to such Transferred Receivable (if such collection activities were performed by any of its Affiliates acting as Servicer), except to the extent that such dispute, claim, offset or defense results solely from any action or inaction on the part of any Indemnified Person;
(viii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ixv) any products liability claim or other claim arising out of or in connection with merchandise, insurance or services which are that is the subject of any ContractContract with respect to any Transferred Receivable;
(xvi) the commingling of Collections of Pool with respect to Transferred Receivables by the Seller at any time with its other fundsfunds or the funds of any other Person;
(xivii) any failure by the enforcement Seller to cause the filing of, or legal recognition any delay in filing, financing statements or other similar instruments or documents under the UCC of any prior interest under the Mortgage in applicable jurisdiction or any other applicable laws with respect to any Receivables Transferred Receivable that is the subject of a Purchase hereunder, whether at the time of any such Purchase or the proceeds thereofat any subsequent time; or
(xiiviii) any breakage and other expenses, if any, failure of a Lockbox Account Bank or a Concentration Account Bank to comply with the terms of the Investor or applicable Lockbox Account Agreement.
(b) Any Indemnified Amounts subject to the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) indemnification provisions of interest rate swaps, collars, forward agreements and future contracts this SECTION 12.01 not paid in connection accordance with ARTICLE VI shall be paid by the funding or maintenance of any Eligible Asset and Seller to the costs and expenses specifically set forth in the definition of Fixed Rate; orIndemnified Person entitled thereto within five Business Days following demand therefor.
Appears in 1 contract
Samples: Receivables Purchase and Servicing Agreement (Daisy Parts Inc)
Indemnities by the Seller. Without limiting any other rights which (a) The Seller agrees to hold the Purchaser, the Deal Agent, any Secured Party, any Affected Party and any Affiliates of the Owner, Citibank or CNAI or any Affiliate thereof may have hereunder or under applicable lawPurchaser, the Seller hereby agrees to indemnify each of the Deal Agent, any Secured Party and any Affected Party and the OwnerPurchaser’s, Citibank the Deal Agent’s, any Secured Party’s, any Affected Party’s and CNAI their Affiliates’ officers, directors, shareholders, partners, members, owners, employees, agents, attorneys, Affiliates and advisors (each Affiliate thereof an “Indemnified Party” and collectively the “Indemnified Parties”) harmless from and indemnify any Indemnified Party against any and all damagesliabilities, losses, claimsdamages, liabilities and related costs and judgments, costs, expenses, including reasonable attorneys' fees and disbursements penalties or fines of any kind that may be imposed on, incurred by or asserted against such Indemnified Party (all of collectively, the foregoing being collectively referred to as "“Indemnified Amounts")”) in any way relating to, awarded against or incurred by any of them arising out of or as a result of resulting from (i) the Facility, this Agreement Agreement, the Repurchase Documents, the Mortgage Loan Documents, any Purchased Item, the Pledged Collateral and any other collateral for the Facility or the ownership of Eligible Assets any transaction or Transaction contemplated hereby or thereby, or any amendment, supplement, extension or modification of, or any waiver or consent under or in respect of, this Agreement, the Repurchase Documents, the Mortgage Loan Documents, any Purchased Item, the Pledged Collateral and any other collateral for the Facility, or any transaction or Transaction contemplated hereby or thereby, (ii) any Mortgage Asset, any Purchased Item, any Pledged Collateral or any other collateral for the Facility, (iii) any violation or alleged violation of, non-compliance with or liability under any Applicable Law (including, without limitation, violation of securities laws and Environmental Laws), (iv) ownership of, Liens on, security interests in or the exercise of rights and/or remedies under the Repurchase Documents, the Mortgage Loan Documents, the Purchased Items, the Pledged Collateral, any other collateral for the Facility, the Underlying Mortgaged Property, any other related Property or collateral or any part thereof or any interest therein or receipt of any Receivable Income or rents, (v) any accident, injury to or death of any person or loss of or damage to property occurring in, on or about any Underlying Mortgaged Property, any other related Property or collateral or any Contractpart thereof, excludingthe Purchased Items or on the adjoining sidewalks, howevercurbs, parking areas, streets or ways, (ivi) Indemnified Amounts to any use, nonuse or condition in, on or about, or possession, alteration, repair, operation, maintenance or management of, any Underlying Mortgaged Property, any other related Property or collateral or any part thereof or on the extent resulting from gross negligence adjoining sidewalks, curbs, parking areas, streets or willful misconduct ways, (vii) any failure on the part of the Seller, the Guarantor or the Pledgor to perform or comply with any of the terms of the Mortgage Loan Documents, the Repurchase Documents, the Purchased Items, the Pledged Collateral or any other collateral for the Facility, (viii) performance of any labor or services or the furnishing of any materials or other property in respect of the Underlying Mortgaged Property, any other related Property or collateral, the Purchased Items or any part thereof, (ix) any claim by brokers, finders or similar Persons claiming to be entitled to a commission in connection with any lease or other transaction involving any Underlying Mortgaged Property, any other related Property or collateral, the Purchased Items or any part thereof or the Repurchase Documents, (x) any Taxes including, without limitation, any Taxes attributable to the execution, delivery, filing or recording of any Repurchase Document, any Mortgage Loan Document or any memorandum of any of the foregoing, (xi) any Lien or claim arising on or against the Underlying Mortgaged Property, any other related Property or collateral, the Pledged Collateral, the Purchased Items or any part thereof under any Applicable Law or any liability asserted against the Deal Agent, the OwnerPurchaser, Citibank or CNAI any Secured Party or any such Affiliate Affected Party with respect thereto, (xii) the claims of any lessee or any Person acting through or under any lessee or otherwise arising under or as a consequence of any leases with respect to any Underlying Mortgaged Property, related Property or collateral, or any claims of a Borrower, (iixiii) recourse any civil penalty or fine assessed by OFAC against, and all reasonable costs and expenses (except including counsel fees and disbursements) incurred in connection with the defense thereof, by any Indemnified Party as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting a result of conduct of the foregoingSeller, the Seller shall pay on demand to Pledgor or the AgentGuarantor that violates any sanction enforced by OFAC, the Owner, Citibank or CNAI or any Affiliate thereof (xiv) any and all amounts necessary Indemnified Amounts arising out of, attributable or relating to, accruing out of, or resulting from (1) a past, present or future violation or alleged violation of any Environmental Laws in connection with any Property or Underlying Mortgaged Property by any Person or other source, whether related or unrelated to indemnify the AgentSeller, the OwnerPledgor, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts the Guarantor or any Borrower, (2) any presence of any Materials of Environmental Concern in, on, within, above, under, near, affecting or emanating from any Property or Underlying Mortgaged Property, (3) the failure to timely perform any Remedial Work, (4) any past, present or future activity by any Person or other source, whether related or unrelated to the Seller, the Pledgor, the Guarantor or any Borrower in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from any Property or Underlying Mortgaged Property of any Materials of Environmental Concern at any time located in, under, on, above or affecting any Property or Underlying Mortgaged Property, (5) any past, present or future actual Release (whether intentional or unintentional, direct or indirect, foreseeable or unforeseeable) to, from, on, within, in, under, near or affecting any Property or Underlying Mortgaged Property by any Person or other source, whether related or unrelated to the Seller, the Guarantor, any other Repurchase Party or any Borrower, (6) the imposition, recording or filing or the threatened imposition, recording or filing of any Lien on any Property or Underlying Mortgaged Property with regard to, or as a result of, any Materials of Environmental Concern or pursuant to any Environmental Law, or (7) any misrepresentation or inaccuracy in any representation or warranty in any material respect or material breach or failure to perform any covenants or other obligations pursuant to this Agreement, the other Repurchase Documents or any of the Mortgage Loan Documents or relating to or resulting from:
(i) the creation of an undivided percentage ownership interest environmental matters in any Receivable which is not at the date way including, without limitation, under any of the creation of such interest an Eligible Receivable Mortgage Loan Documents or which thereafter ceases to be an Eligible Receivable;
(iixv) reliance on any representation or warranty made or deemed made by the Seller (Seller, the Guarantor or any of its officers) their respective officers under or in connection with this Agreement, the Original Agreement, any Investor Report Agreement or any other information or report delivered by the Seller pursuant hereto or to the Original AgreementRepurchase Document, which that shall have been false or incorrect in any material respect when made or deemed made;
made or delivered, (iiixvi) the failure by the Seller Seller, the Guarantor or any Servicer to comply with any applicable lawterm, rule provision or regulation covenant contained in this Agreement, the Repurchase Documents, any Servicing Agreement or any agreement executed in connection with the foregoing agreements, or with any Applicable Law or with respect to any Pool Receivable or the related ContractPurchased Items, or the nonconformity of any Pool Receivable or the related Contract Purchased Items with any such applicable lawApplicable Law, rule or regulation;
(ivxvii) the failure to vest and maintain vested in the Owner of an Eligible Asset Purchaser or Deal Agent, as agent for the Secured Parties, an undivided percentage ownership interest, to the extent of such Eligible Asset, interest in the Receivables inPurchased Assets, or purporting to be in, the Receivables Pooltogether with all Income, free and clear of any Adverse Claim except Lien (other than Permitted Liens) whether existing at the time of any Transaction or at any time thereafter, (xviii) the aggregate Repurchase Price for all Transactions exceeding the lienMaximum Amount on any Business Day, if applicable, referred to in Section 4.01(h);
(vxix) the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws Applicable Laws with respect to any Receivables in, or purporting to be in, the Receivables PoolPurchased Items, whether at the time of any Purchase or reinvestment Transaction or at any subsequent time;
, (vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(viixx) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the ObligorBorrower) of the Obligor Borrower to the payment of with respect to any Receivable in, or purporting to be in, the Receivables Pool Purchased Item (including, without limitation, a defense based on such Receivable or the related Contract Purchased Item not being a legal, valid and binding obligation of such Obligor Borrower enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable Purchased Item or the furnishing or failure to furnish such merchandise or services;
, (viiixxi) any failure of the Seller, as Collection Agent the Guarantor or otherwise, any Servicer to perform its duties or obligations in accordance with the provisions of Article VI;
this Agreement, any Servicing Agreement or any of the other Repurchase Documents or any failure by the Seller, the Guarantor, any Servicer or any Affiliate of the Seller or the Guarantor to perform its respective duties under any Purchased Item, (ixxxii) the failure of the Seller, the Guarantor or any Servicer to remit any Income due hereunder to the Collection Account on or before the date such Income is required to be deposited therein (whether by the exercise of setoff rights or otherwise), (xxiii) any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which a Borrower may be located as a result of the failure of the Seller to qualify to do business or file any notice or business activity report or any similar report, (xxiv) any action taken by the Seller, the Guarantor or any Servicer in the enforcement, collection or foreclosure of any Purchased Item, (xxv) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise, insurance the Purchased Assets or services which that are the subject of any Contract;
Purchased Item, (xxxvi) any claim, suit or action of any kind or nature whatsoever arising out of or in connection with Environmental Laws including any vicarious liability, (xxvii) the failure by the Seller or the Guarantor to pay when due any Taxes for which the Seller or the Guarantor is liable, including, without limitation, sales, excise or personal property taxes payable in connection with the Purchased Items, (xxviii) any repayment by the Deal Agent, the Purchaser, any Secured Party or any Affected Party of any amount previously distributed in payment of the Repurchase Price, payment of Price Differential or the Aggregate Unpaids or any other amount due hereunder or under any Interest Rate Protection Agreement, in each case which amount the Deal Agent, the Purchaser, any Secured Party or any Affected Party believes in good faith is required to be repaid, (xxix) the commingling of Collections of Pool Receivables Income on the Purchased Items at any time with other funds;
, (xixxx) any investigation, litigation or proceeding related to this Agreement or the enforcement use of proceeds of Transactions or legal recognition the security interest in the Purchased Items, (xxxi) any failure by the Seller to give reasonably equivalent value to the Transferors in consideration for the transfer by the Transferors to the Seller of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, item of the Investor Purchased Items or the Owner (any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, attorneys' feesany provision of the Bankruptcy Code, disbursements (xxxii) the use of the proceeds of any Transaction in a manner other than as provided in this Agreement and accrued interestthe Purchase Agreements, (xxxiii) any Purchased Asset treated as or represented as an Eligible Asset or as satisfying the representations and warranties set forth in Schedule 1 that, at the applicable time, does not satisfy the foregoing criteria, (xxxiv) the exercise by any Borrower of interest rate swapsany rights of setoff against the Seller, collarsthe Guarantor or any of their Affiliates or the exercise of any rights by a Borrower that impacts, forward agreements impairs, reduces or diminishes any Income or any Purchased Asset, (xxxv) the failure by the Seller to comply with any of the covenants relating to the Interest Rate Protection Agreements or (xxxvi) the Seller’s, the Guarantor’s and/or the Pledgor’s conduct, activities, actions and/or inactions in connection with, relating to or arising out of any of the foregoing clauses of this Subsection 11.1(a), that, in each case, results from anything other than any Indemnified Party’s gross negligence or willful misconduct. In any suit, proceeding or action brought by an Indemnified Party in connection with any Purchased Item, the Pledged Collateral or any other collateral for the Facility for any sum owing thereunder, or to enforce any provisions of any Purchased Item, the Pledged Collateral or any other collateral for the Facility, the Seller shall save, indemnify and future contracts hold such Indemnified Party harmless from and against all expense, loss or damage suffered by reason of any defense, set–off, counterclaim, recoupment or reduction of liability whatsoever of the account debtor, obligor or Borrower thereunder arising out of a breach by the Seller, the Guarantor or the Pledgor of any obligation thereunder or arising out of any other agreement, indebtedness or liability at any time owing to or in favor of such account debtor, obligor or Borrower or its successors from the Seller, the Guarantor or the Pledgor. The Seller also agrees to reimburse an Indemnified Party as and when billed by such Indemnified Party for all such Indemnified Party’s costs, expenses and fees incurred in connection with the funding enforcement or maintenance the preservation of such Indemnified Party’s rights under this Agreement, the Repurchase Documents, the Mortgage Loan Documents and any transaction or Transaction contemplated hereby or thereby, including, without limitation, the reasonable fees and disbursements of its counsel. In the case of an investigation, litigation or other proceeding to which the indemnity in this Subsection 11.1(a) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Seller, the Guarantor, the Pledgor and/or any of their officers, directors, shareholders, employees or creditors, an Indemnified Party or any other Person or any Indemnified Party is otherwise a party thereto and whether or not any transaction contemplated hereby is consummated.
(b) Any amounts subject to the indemnification provisions of this Section 11.1 shall be paid by the Seller to the Indemnified Party within five (5) Business Days following such Person’s demand therefor. For the avoidance of doubt, an Indemnified Party may seek payment of any Eligible Asset Indemnified Amount at any time and regardless of whether a Default or an Event of Default then exists or is continuing.
(c) If for any reason the indemnification provided in this Section 11.1 is unavailable to the Indemnified Party, other than unavailability due to the gross negligence or willful misconduct of such Indemnified Party, or is insufficient to hold an Indemnified Party harmless, then the Seller shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the costs Seller and expenses specifically set forth in the definition Guarantor on the other hand but also the relative fault of Fixed Rate; orsuch Indemnified Party as well as any other relevant equitable considerations.
(d) The obligations of the Seller under this Article XI shall survive the resignation or removal of the Deal Agent and the termination of this Agreement.
Appears in 1 contract
Samples: Master Repurchase Agreement (Arbor Realty Trust Inc)
Indemnities by the Seller. (a) Without limiting any other rights which that the Administrative Agent, the OwnerPurchaser Parties, Citibank or CNAI or any Affiliate thereof the Affected Persons and their respective assigns, officers, directors, agents and employees (each, a “Seller Indemnified Party”) may have hereunder or under applicable lawApplicable Law, the Seller hereby agrees to indemnify each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Seller Indemnified Party from and against any and all damages, losses, claims, losses and liabilities and related costs and expenses, (including reasonable attorneys' fees and disbursements Attorney Costs) (all of the foregoing being collectively referred to as "“Seller Indemnified Amounts"), awarded against or incurred by any of them ”) arising out of or as a result of resulting from this Agreement or any other Transaction Document or the ownership use of Eligible Assets proceeds of the Investments or the security interest in respect of any Pool Receivable or any Contract, other Sold Assets or Seller Collateral; excluding, however, (ia) Seller Indemnified Amounts to the extent resulting a final non-appealable judgment of a court of competent jurisdiction holds that such Seller Indemnified Amounts resulted from the bad faith, gross negligence or willful misconduct on by the part Seller Indemnified Party seeking indemnification, (b) Taxes (other than (x) as specifically enumerated below and (y) any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim), (c) Seller indemnified Amounts that arise from any settlement of any proceeding effected without the AgentSeller’s written consent (which consent shall not be unreasonably withheld, delayed or conditioned), but if settled with the Seller’s written consent, or if there is a judgment against a Seller Indemnified Party in any such proceeding, the OwnerSeller agrees to indemnify and hold harmless each Seller Indemnified Party in the manner set forth in this Section 12.01(a) (provided that the Seller’s consent shall not be required to effect any settlement of any such proceeding if an Event of Default has occurred and is continuing at the time such settlement is to be effected; provided, Citibank further that, if at any time a Seller Indemnified Party shall have requested in accordance with this Agreement that the Seller reimburse such Seller Indemnified Party for legal or CNAI other expenses in connection with investigating, responding to or defending any proceeding, the Seller shall be liable for any settlement of any proceeding effected without the Seller’s written consent if (x) such settlement is entered into more than 30 days after receipt by the Seller of such request for reimbursement and (y) the Seller shall not have reimbursed such Seller Indemnified Party in accordance with such request prior to the date of such settlement) and (d) Seller Indemnified Amounts to the extent a final non-appealable judgment of a court of competent jurisdiction holds that such Seller Indemnified Amounts resulted from disputes arising solely among Seller Indemnified Parties (other than the Administrative Agent or the Structuring Agent) and that do not involve any act or omission by the Seller or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivablesof its Affiliates. Without limiting or being limited by the foregoing, the Seller shall pay on demand (it being understood that if any portion of such payment obligation is made from Collections, such payment will be made at the time and in the order of priority set forth in Section 3.01), to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof each Seller Indemnified Party any and all amounts necessary to indemnify the Agent, the Owner, Citibank such Seller Indemnified Party from and CNAI against any and each Affiliate thereof for all Seller Indemnified Amounts relating to or resulting from:from any of the following (but excluding Seller Indemnified Amounts and Taxes described in clauses (a), (b), (c) and (d) above):
(i) any Pool Receivable which the creation Seller or the Servicer includes as an Eligible Receivable as part of an undivided percentage ownership interest in any Receivable the Net Receivables Pool Balance but which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivableat such time;
(ii) reliance on any representation representation, warranty or warranty statement made or deemed made by the Seller (or any of its respective officers) under or in connection with this Agreement, any of the Original Agreementother Transaction Documents, any Investor Pool Report or any other information or report delivered by or on behalf of the Seller pursuant hereto or to the Original Agreement, which shall have been false untrue or incorrect in any material respect when made or deemed made;
(iii) the failure by the Seller to comply with any applicable law, rule Applicable Law with the Assignment of Claims Act (or regulation with any other similar Applicable Law) respect to any Pool Receivable or the related Contract, ; or the nonconformity failure of any Pool Receivable or the related Contract with to conform to any such applicable law, rule or regulationApplicable Law;
(iv) the failure to vest in the Owner Administrative Agent a first priority perfected ownership or security interest in all or any portion of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible AssetSold Assets or Seller Collateral, in the Receivables in, or purporting to be in, the Receivables Pool, each case free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h)Claim;
(v) the failure to filehave filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws Applicable Laws with respect to any Receivables inPool Receivable, any other Sold Assets or purporting to be in, the Receivables Poolany Seller Collateral, whether at the time of any Purchase or reinvestment Investment or at any subsequent time;
(vi) any dispute, claim or defense (other than discharge in bankruptcy) of an Obligor to the payment of any Pool Receivable (including, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from or relating to collection activities with respect to such Pool Receivable;
(vii) any failure of the Seller to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(viii) any products liability, environmental or other claim arising out of or in connection with any Pool Receivable or other merchandise, goods or services which are the subject of or related to any Pool Receivable;
(ix) the misdirection of Collection or the commingling of Collections of Pool Receivables at any time with other funds;
(x) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or the use of proceeds of any Investments or in respect of any Pool Receivable, any other Sold Assets or any Seller Collateral or any related Contract;
(xi) any failure of the Seller to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(xii) any setoff with respect to any Pool Receivable;
(xiii) any claim brought by any Person other than a Seller Indemnified Party arising from any activity by the Seller or any Affiliate of the Seller in servicing, administering or collecting any Pool Receivable;
(xiv) the failure by the Seller to timely and duly perform and comply with all material provisionspay when due any taxes, covenants and other promises required to be observed by it under any Contract related to the Pool Receivablesincluding, sales, excise or personal property taxes;
(viixv) any failure of a Collection Account Bank to comply with the terms of the applicable Account Control Agreement, the termination by a Collection Account Bank of any Account Control Agreement or any amounts (including in respect of any indemnity) payable by the Administrative Agent to a Collection Account Bank under any Account Control Agreement;
(xvi) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Pool Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the merchandise or rendering of services related to such Pool Receivable or the furnishing or failure to furnish any such merchandise goods or servicesservices or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(viiixvii) any failure of action taken by the Administrative Agent as attorney-in-fact for the Seller, as Collection Agent any Originator or otherwise, the Servicer pursuant to perform its duties this Agreement or obligations in accordance with the provisions of Article VIany other Transaction Document;
(ixxviii) the failure of delay to provide any products liability claim arising out Obligor with an invoice or other evidence of or in connection with merchandise, insurance or services which are the subject of any Contractindebtedness;
(xxix) the commingling use of Collections of Pool Receivables at any time with other funds;
(xi) the enforcement or legal recognition proceeds of any prior interest under the Mortgage in or to any Receivables or the proceeds thereofInvestment; or
(xiixx) any breakage and other expenses, if any, reduction in Capital as a result of the Investor distribution of Collections if all or a portion of such distributions shall thereafter be rescinded or otherwise must be returned for any reason.
(b) Notwithstanding anything to the Owner contrary in this Agreement, solely for purposes of the Seller’s indemnification obligations in clauses (includingii), without limitation(iii), attorneys' fees, disbursements (vii) and accrued interest(xi) of interest rate swapsthis Article XII, collarsany representation, forward agreements warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be deemed to be not so qualified.
(c) If for any reason the foregoing indemnification is unavailable to any Seller Indemnified Party or insufficient to hold it harmless, then the Seller shall contribute to such Seller Indemnified Party the amount paid or payable by such Seller Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of the Seller and future contracts its Affiliates on the one hand and such Seller Indemnified Party on the other hand in connection the matters contemplated by this Agreement as well as the relative fault of the Seller and its Affiliates and such Seller Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations. The reimbursement, indemnity and contribution obligations of the funding or maintenance Seller under this Section shall be in addition to any liability which the Seller may otherwise have, shall extend upon the same terms and conditions to each Seller Indemnified Party, and shall be binding upon and inure to the benefit of any Eligible Asset successors, assigns, heirs and personal representatives of the Seller and the costs and expenses specifically set forth in Seller Indemnified Parties.
(d) Any indemnification or contribution under this Section shall survive the definition termination of Fixed Rate; orthis Agreement.
Appears in 1 contract
Indemnities by the Seller. Without limiting any other rights which the Deal Agent, the OwnerPurchaser, Citibank or CNAI the Liquidity Providers or any Affiliate thereof of their respective Affiliates may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Deal Agent, the OwnerPurchaser, Citibank and CNAI each Liquidity Provider, each of their respective Affiliates, and each Affiliate thereof of their respective directors, officers, employees, agents and attorneys (all of the foregoing being collectively referred to as "Indemnified Parties") from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), ) awarded against or actually incurred by any of them arising out of or as a result of this Agreement or the ownership of Eligible Assets or in respect of any Receivable or any Contract, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting from:
(i) any Purchased Receivable represented or deemed represented by the creation of Seller to be an undivided percentage ownership interest in any Eligible Receivable which is not at the date of the creation of such interest an Eligible Receivable at the time such representation is made or which thereafter ceases to be an Eligible Receivabledeemed made;
(ii) reliance on any representation or warranty made or deemed made by the Seller Seller, the Collection Agent (if Synthetic or one of its Affiliates) or any of its officers) their respective officers under or in connection with this Agreement, the Original Agreement, any Investor Report or any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iii) the failure by the Seller or the Collection Agent (if Synthetic or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any of the other Facility Documents, or with any applicable law, rule or regulation with respect to any Pool Receivable Receivable, the related Contract or the related ContractRelated Security, or the nonconformity of any Pool Receivable or Receivable, the related Contract or the Related Security with any such applicable law, rule or regulation;
(iv) (A) the failure to vest and maintain vested in the Owner of an Eligible Asset an undivided Purchaser or to transfer to the Purchaser, legal and equitable title to and ownership of, a percentage ownership interest, corresponding to the extent of such Eligible AssetPurchased Interest, in the Receivables inwhich are, or purporting are purported to be inbe, Purchased Receivables, together with all Collections and Related Security; or (B) the failure to grant to the Deal Agent, for the benefit of itself and the Purchaser, a valid and perfected first priority "security interest," under Article 9 of the UCC, in and to the Receivables Poolwhich are, or are purported to be, Purchased Receivables, together with all Collections and Related Security; in each case free and clear of any Adverse Claim except for whether existing at the lien, if applicable, referred to in Section 4.01(h)time of the Purchase of any such Receivable or at any time thereafter;
(v) the failure to prevent, as of the close of business on each Business Day prior to the Termination Date, a Coverage Shortfall Event from occurring;
(vi) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables inwhich are, or purporting are purported to be inbe, the Receivables PoolPurchased Receivables, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable inwhich is, or purporting is purported to be inbe, the Receivables Pool a Purchased Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(viii) any failure of the Seller, as Seller or the Collection Agent (if Synthetic or otherwise, one of its Affiliates) to perform its duties or obligations in accordance with the provisions of Article VIthis Agreement or any failure by the Originator, the Seller or any Affiliate thereof to perform its respective duties under the Contracts;
(ix) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise, insurance merchandise or services which are the subject of any Receivable or Contract;
(x) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes payable in connection with the Purchased Receivables;
(xi) any repayment by the Deal Agent or the Purchaser of any amount previously distributed in reduction of Capital or payment of Yield or any other amount due hereunder, in each case which amount the Deal Agent or the Purchaser believes in good faith is required to be repaid;
(xii) the commingling of Collections of Pool Purchased Receivables at any time with other funds;
(xixiii) any investigation, litigation or proceeding related to this Agreement or the enforcement use of proceeds of Purchases or legal recognition reinvestments or the ownership of Purchased Property or in respect of any prior interest under Receivable, Related Security or Contract;
(xiv) any failure by the Mortgage Seller to give reasonably equivalent value to the Originator in or consideration for the transfer by the Originator to the Seller of any Receivables or Related Security, or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the proceeds thereofBankruptcy Code; or
(xiixv) any breakage and other expenses, if any, the failure of the Investor Seller, the Originator or the Owner any of their respective agents or representatives (including, without limitation, attorneys' feesagents, disbursements representatives and accrued interestemployees of the Originator acting pursuant to authority granted under Section 6.01) to remit to the Collection Agent or the Deal Agent, Collections of interest rate swapsPurchased Receivables remitted to the Seller, collarsthe Originator or any such agent or representative. Any amounts subject to the indemnification provisions of this Section 8.01 shall be paid by the Seller to the Deal Agent within two Business Days following the Deal Agent's demand therefor. Notwithstanding any other provision of this Agreement to the contrary, forward agreements and future contracts in connection the Seller shall not indemnify the Indemnified Parties for or with the funding or maintenance of respect to any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; orIndemnified Amounts that would constitute recourse for uncollectible Purchased Receivables due to credit reasons.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Synthetic Industries Inc)
Indemnities by the Seller. Without limiting any other ------------------------- rights which the Agent, the Owner, Citibank or CNAI CNA or any Affiliate of any thereof (each, an "Indemnified Party") may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Party from and against any and all damages, losses, claims, losses and liabilities and related costs and expenses, (including reasonable attorneys' fees and disbursements fees) (all of the foregoing being collectively referred to as "Indemnified Amounts"), ) awarded against or incurred by any of them arising out of or as a result of this Agreement or the use of proceeds of Purchases or reinvestments or the ownership of Eligible Assets Shares or in respect of any Receivable or any Contract, excluding, however, (ia) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate Indemnified Party or (iib) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting or being limited by the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof each Indemnified Party any and all amounts necessary to indemnify the Agent, the Owner, Citibank such Indemnified Party from and CNAI against any and each Affiliate thereof for all Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made by the Seller or any Originator or any SPV or Services or the Parent (or any of its their respective officers) under or in connection with this Agreement, any Originator Agreement, any NewCo Agreement, the Original Parent Agreement, any Investor Report or any other information or report delivered by the Seller or any Originator or any SPV or Services or the Parent pursuant hereto or to the Original Agreementthereto, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by the Seller or any Originator or any SPV or Services to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule or regulation;
(iv) the failure to vest in the Owner of an Eligible Asset Share an undivided percentage ownership interest, to the extent of such Eligible AssetShare, in the Receivables in, or purporting to be in, the Receivables Pool, free and clear of any Adverse Claim except for other than the lien, if applicable, referred to in Section 4.01(hinterest of such Owner (whether or not such Adverse Claim is specifically contemplated by this Agreement);
(v) the failure by the Seller or any Originator or any SPV to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legalLegal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), Obligor) or any other claim resulting from the sale of the merchandise electricity, gas, water or services related to such Receivable or the furnishing or failure to furnish such merchandise electricity, gas, water or services;
(viiivii) any failure of the SellerSeller or Services, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ixviii) any products liability claim arising out of or in connection with merchandisethe electricity, insurance gas, water or services which are the subject of any Contract;; or
(xix) the commingling of Collections of Pool Receivables at any time with other funds;
(xi) the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; or.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Alliant Energy Corp)
Indemnities by the Seller. Without limiting any other rights which the Agent, Buyer or the Owner, Citibank or CNAI or any Affiliate thereof Lender may have hereunder or under applicable law, the Seller hereby agrees to indemnify each the Buyer and, from and after the time of any advances by the AgentLender to the Buyer and a pledge or assignment hereof by the Buyer to the Lender under the Loan and Security Agreement, the OwnerLender (each, Citibank and CNAI and each Affiliate thereof an "Indemnified Party") from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), ) awarded against or incurred by any of them an Indemnified Party arising out of or as a result of this Agreement or the ownership of Eligible Assets or in respect of any Receivable or any Contractfollowing, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or negligence, bad faith, willful misconduct (including breach of covenant or representation) or the reckless disregard of its own duties on the part of the AgentBuyer or the Lender, as the Ownercase may be, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting fromMedallion Loans:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made or deemed made by the Seller or any of its Affiliates (or any of its their respective officers) under or in connection with this Agreement, the Original Agreement, Agreement or any Investor Report other Operative Document or any other information or report delivered by the Seller pursuant hereto this Agreement or any other Operative Document (including, without limitation, any representation with respect to a Loan's classification by the Original AgreementSeller as an Eligible Medallion Loan), which shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iiiii) the failure by the Seller to comply with any term, provision or covenant contained in this Agreement, or with any applicable law, rule or regulation (including tax laws, rules or regulations) with respect to any Pool Receivable Medallion Loan or the related ContractLoan Documents or the Loan Sale and Exchange Agreement, with which compliance is required of the Seller; or the nonconformity of any Pool Receivable Medallion Loan or the related Contract Loan Documents or the Loan Sale and Exchange Agreement with any such applicable law, rule or regulation;
(iviii) the failure to vest and maintain vested in the Owner of an Eligible Asset an undivided percentage ownership interest, Buyer or to transfer to the extent of such Eligible AssetBuyer, in the Receivables inlegal and equitable title to and ownership of, or purporting to be security interest in, the Receivables PoolMedallion Loans together with all Related Assets, free and clear of any Adverse Claim Lien (except for Permitted Participation Interests and as permitted hereunder) whether existing at the lien, if applicable, referred to in Section 4.01(h)time of the Purchase of such Medallion Loan or at any time thereafter;
(viv) the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any all applicable jurisdiction jurisdictions or other applicable laws or the failure to make other filings with respect to any Receivables in, or purporting to be in, the Receivables PoolMedallion Loans, whether at the time of any Purchase or reinvestment or at any subsequent time, but in all events as may be required of the Seller hereunder;
(v) the failure of the Seller or any of its agents and representatives to remit to the Servicer or the Collection Account Collections of Medallion Loans remitted to the Seller or such agent or representative;
(vi) any the failure by the Seller to timely and be duly perform and comply with all material provisionsqualified to do business, covenants and other promises required to be observed in good standing or to have filed appropriate fictitious or assumed name registration documents in any jurisdiction, where such qualification may be required by it under any Contract related to the Pool Receivables;applicable law; and
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(viii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ix) any products liability claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
(x) the commingling by Seller of Collections of Pool Receivables Medallion Loans at any time with other funds;
. An Indemnified Party shall promptly notify the Seller of any claim as to which it seeks indemnification. If any suit, action, claim or proceeding which might result in indemnification under this Section 8.01 is brought against an Indemnified Party, the Indemnified Party shall, if a claim in respect thereof is to be made against the Seller hereunder, notify the Seller in writing of the commencement thereof. The Seller may participate in and assume the defense of any such suit, action, claim, proceeding or investigation at its expense, and no settlement thereof shall be made without the approval of the Seller and the Indemnified Party. The approval of the Seller and the Indemnified Party will not be unreasonably withheld or delayed; provided, however, that (xii) the enforcement Seller shall agree that any judgment, settlement or legal recognition other amounts payable as a result of such suit, action, claim, or proceeding shall be subject to indemnification by the Seller pursuant to this Section 8.01; (ii) the Seller must keep the Indemnified Party apprised of the progress of any prior interest under such suit, action, claim or proceeding; and (iii) if the Mortgage in Indemnified Party reasonably believes that its failure to participate will adversely affect its interests or to any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) that there is a conflict of interest rate swapswhich makes it inadvisable for the Seller's attorney to represent such party, collarsit shall notify the Seller of such conclusion in writing and may, forward agreements and future contracts at its election, participate in connection with such suit, action, claim or proceeding (the funding or maintenance legal fees incurred by the Indemnified Party as a result of any Eligible Asset such participation to be reimbursed by the Seller). Any amounts subject to the indemnification provisions of this Section 8.01 shall be paid by the Seller to the Indemnified Party within two Business Days following the Indemnified Party's demand. The agreement contained in this Section 8.01 shall survive the collection of all Medallion Loans, the termination of this Agreement and the costs payment of all amounts otherwise payable thereunder and expenses specifically set forth in the definition of Fixed Rate; orhereunder.
Appears in 1 contract
Samples: Loan Sale and Contribution Agreement (Medallion Financial Corp)
Indemnities by the Seller. Without limiting any other rights which the Deal Agent, the OwnerPurchaser, Citibank or CNAI the Liquidity Providers, the Supplemental Enhancement Providers or any Affiliate thereof of their respective Affiliates may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Deal Agent, the OwnerPurchaser, Citibank and CNAI each Liquidity Provider, each Supplemental Enhancement Provider each of their respective Affiliates, and each Affiliate thereof of their respective directors, officers, employees, agents and attorneys (all of the foregoing being collectively referred to as "INDEMNIFIED PARTIES") from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified AmountsINDEMNIFIED AMOUNTS"), ) awarded against or actually incurred by any of them arising out of or as a result of this Agreement or the ownership of Eligible Assets or in respect of any Receivable or any Contract, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting from:
(i) any Purchased Receivable represented or deemed represented by the creation of Seller to be an undivided percentage ownership interest in any Eligible Receivable which is not at the date of the creation of such interest an Eligible Receivable at the time such representation is made or which thereafter ceases to be an Eligible Receivabledeemed made;
(ii) reliance on any representation or warranty made or deemed made by the Seller (Seller, the Servicer or any of its officers) their respective officers under or in connection with this Agreement, the Original Agreement, any Investor Report or any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iii) the failure by the Seller or the Servicer to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents, or with any applicable law, rule or regulation with respect to any Pool Receivable Receivable, the related Contract or the related ContractRelated Security, or the nonconformity of any Pool Receivable or Receivable, the related Contract or the Related Security with any such applicable law, rule or regulation;
(iv) (A) the failure to vest and maintain vested in the Owner of an Eligible Asset an undivided Purchaser or to transfer to the Purchaser, legal and equitable title to and ownership of, a percentage ownership interest, corresponding to the extent of such Eligible AssetPurchased Interest, in the Receivables inwhich are, or purporting are purported to be inbe, Purchased Receivables, together with all Collections and Related Security; or (B) the failure to grant to the Deal Agent, for the benefit of itself and the Purchaser, a valid and perfected first priority "security interest," under Article 9 of the UCC, in and to the Receivables Poolwhich are, or are purported to be, Purchased Receivables, together with all Collections and Related Security; in each case free and clear of any Adverse Claim except for whether existing at the lien, if applicable, referred to in Section 4.01(h)time of the Purchase of any such Receivable or at any time thereafter;
(v) the failure by the Seller or the Servicer to make any payment required on its part to be made hereunder;
(vi) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables inwhich are, or purporting are purported to be inbe, the Receivables PoolPurchased Receivables, whether at the time of any the Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable inwhich is, or purporting is purported to be inbe, the Receivables Pool a Purchased Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(viii) any failure of the Seller, as Collection Agent Seller or otherwise, the Servicer to perform its duties or obligations in accordance with the provisions of Article VI;
this Agreement or any failure by an Originator, the Seller or any Affiliate thereof to perform its respective duties under the Contracts; (ix) the failure to pay when due any products liability claim arising out of or in connection with merchandisetaxes, insurance or services which are the subject of any Contract;
(x) the commingling of Collections of Pool Receivables at any time with other funds;
(xi) the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, of the Investor or the Owner (including, including without limitation, attorneys' feessales, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts excise or personal property taxes payable in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; orPurchased Receivables;
Appears in 1 contract
Samples: Receivables Purchase Agreement (Superior National Insurance Group Inc)
Indemnities by the Seller. Without limiting any other rights which the Agent, the Owner, Citibank or CNAI or any Affiliate thereof Purchaser may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the AgentPurchaser and its assigns and transferees (each, the Owner, Citibank and CNAI and each Affiliate thereof an "INDEMNIFIED PARTY") from and against any and all damages, claims, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified AmountsINDEMNIFIED AMOUNTS"), awarded against or incurred by any of them Indemnified Party arising out of or as a result of this Agreement or the ownership purchase or contribution of Eligible Assets any Transferred Receivables or in respect of any Transferred Receivable or any Contract, excludingincluding, howeverwithout limitation, (i) Indemnified Amounts to the extent resulting from gross negligence arising out of or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting froma result of:
(i) the creation of an undivided percentage ownership interest inclusion, or purported inclusion, in any Purchase of any Receivable that is not an Eligible Receivable on the date of such Purchase, or the characterization in any Seller Report or other statement made by the Seller of any Transferred Receivable as an Eligible Receivable which is not at an Eligible Receivable as of the date of the creation of such interest an Eligible Receivable Seller Report or which thereafter ceases to be an Eligible Receivablestatement;
(ii) reliance on any representation or warranty or statement made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report or any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Pool Transferred Receivable or the related Contract, ; or the nonconformity failure of any Pool Transferred Receivable or the related Contract with to conform to any such applicable law, rule or regulation;
(iv) the failure to vest in the Owner Purchaser absolute ownership of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables inthat are, or purporting that purport to be inbe, the Receivables Poolsubject of a Purchase or contribution under this Agreement and the Related Security and Collections in respect thereof, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h)Claim;
(v) the failure of the Seller to filehave filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables inthat are, or purporting that purport to be inbe, the Receivables Poolsubject of a Purchase or contribution under this Agreement and the Related Security and Collections in respect thereof, whether at the time of any Purchase or reinvestment contribution or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable inthat is, or purporting that purports to be inbe, the Receivables Pool subject of a Purchase or contribution under this Agreement (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or servicesservices or relating to collection activities with respect to such Receivable (if such collection activities were performed by the Seller acting as Collection Agent);
(viiivii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VIhereof or to perform its duties or obligations under any Contract related to a Transferred Receivable in each case after taking into account the applicable cure periods herein;
(ixviii) any products liability or other claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
(xix) the commingling of Collections of Pool Transferred Receivables by the Seller or a designee of the Seller, as Collection Agent or otherwise, at any time with other fundsfunds of the Seller or an Affiliate of the Seller;
(x) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Purchases or the ownership of Receivables, the Related Security, or Collections with respect thereto or in respect of any Receivable, Related Security or Contract;
(xi) any failure of the enforcement or legal recognition of any prior interest under the Mortgage Seller to comply with its covenants contained in or to any Receivables or the proceeds thereof; orthis Agreement;
(xii) any breakage and Collection Agent Fees or other expenses, if any, of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth payable to any replacement Collection Agent, to the extent in excess of the definition Collection Agent Fees payable to the Seller hereunder;
(xiii) any claim brought by any Person other than an Indemnified Party arising from any activity by the Seller or any Affiliate of Fixed Ratethe Seller in servicing, administering or collecting any Transferred Receivable; or
(xiv) any Dilution with respect to any Transferred Receivable. It is expressly agreed and understood by the parties hereto (i) that the foregoing indemnification is not intended to, and shall not, constitute a guarantee of the collectibility or payment of the Transferred Receivables and (ii) that nothing in this Section 8.01 shall require the Seller to indemnify any Person (A) for Receivables which are not collected, not paid or uncollectible on account of the insolvency, bankruptcy, or financial inability to pay of the applicable Obligor, (B) for damages, losses, claims or liabilities or related costs or expenses resulting from such Person's gross negligence or willful misconduct, or (C) for any income taxes or franchise taxes incurred by such Person arising out of or as a result of this Agreement or in respect of any Transferred Receivable or any Contract.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Personal Care Holdings Inc)
Indemnities by the Seller. Without limiting any other ------------------------- rights which the Agent, the Owner, Citibank or CNAI or any Affiliate thereof Purchaser may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Purchaser from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements and including any "Indemnified Amounts" owed by the Purchaser under Section 10.01 or 11.06 of the Xxxxxx Agreement or the Citibank Agreement (all of the foregoing being collectively referred to as "Indemnified Amounts"), ) awarded against or incurred by any of them the Purchaser arising out of or as a result of this Agreement or the use of proceeds of Purchases or the ownership of Eligible Assets or in respect of any Receivable or any ContractPool Receivables, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank Investor or CNAI CNA or any such Affiliate of their Affiliates or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting or being limited by the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof Purchaser and its successors in interest any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof any of them for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made by the Seller or the Originator or Services or the Parent (or any of its their respective officers) under or in connection with this Agreement, the Original Originator Agreement, or the Parent Agreement, any Investor Report or any other information or report delivered by the Seller or Services or the Parent pursuant hereto or to the Original Agreementthereto, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by the Seller or the Originator or Services to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule or regulation;
(iv) the failure to vest in the Owner of Purchaser an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, interest in the Receivables in, or purporting to be in, the Receivables Pool, free and clear of any Adverse Claim except for other than the lien, if applicable, referred to in Section 4.01(hinterest of the Purchaser (whether or not such Adverse Claim is specifically contemplated by this Agreement);
(v) the failure by the Originator or the Seller to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its termsObligor), or any other claim resulting from the sale of the merchandise electricity, gas, water or services related to such Receivable or the furnishing or failure to furnish such merchandise electricity, gas, water or services;
(viiivii) any failure of the SellerSeller or Services, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ixviii) any products liability claim arising out of or in connection with merchandisethe electricity, insurance gas, water or services which are the subject of any Contract;; or
(xix) the commingling of Collections of Pool Receivables at any time with other funds;
(xi) the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; or.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Alliant Energy Corp)
Indemnities by the Seller. Without limiting any other rights which the Agent, the Owner, Citibank or CNAI or any Affiliate thereof SFC may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the AgentSFC and any successors and permitted assigns and their respective officers, the Ownerdirectors and employees (collectively, Citibank and CNAI and each Affiliate thereof "Indemnified Parties") from and against any and all damages, losses, claims, liabilities and related liabilities, costs and expenses, including including, without limitation, reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), ) awarded against or incurred by any of them in any action or proceeding between the Seller (including such Person's capacity as the Collection Agent) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement Agreement, or the ownership of Eligible Assets or in respect of any Receivable or any Contractother Transaction Documents, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate an Indemnified Party or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible ReceivablesReceivables which become Defaulted Receivables for credit reasons. Without limiting the generality of the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Party for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made by the Seller (including in such Person's capacity as the Collection Agent) or any officers of its officersthe Seller (including in such Person's capacity as the Collection Agent) under or in connection with this Agreement, any of the Original Agreementother Transaction Documents, any Investor Report delivered by the Collection Agent or any other information or report delivered by the Seller or the Collection Agent on the Seller's behalf pursuant hereto or to the Original Agreementhereto, which shall have been false or incorrect in any material respect when made or deemed made;
(iiiii) the failure by the Seller (including such Person's capacity as the Collection Agent) to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule or regulation;
(iviii) the failure to vest and maintain vested in SFC or to transfer to SFC, a valid and enforceable ownership interest in the Owner of an Eligible Asset an undivided percentage ownership interestAffected Assets, to the extent of such Eligible Asset, in the Receivables inwhich are, or purporting are purported to be inbe, sold by the Receivables PoolSeller hereunder, free and clear of any Adverse Claim except for (other than Adverse Claims created under the lien, if applicable, referred to in Section 4.01(hother Transaction Documents);
(viv) the failure to file, or any delay in filing, financing statements statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, of the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent timeAffected Assets;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(viiv) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligorbankruptcy) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the goods, inventory or merchandise or services related to such Receivable or the furnishing or failure to furnish such goods, inventory, merchandise or services;
(viiivi) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VIhereof;
(ixvii) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with goods, merchandise, insurance inventory or services which are the subject of any Receivable or Contract;
(viii) the transfer of an ownership interest in any Receivable other than an Eligible Receivable;
(ix) the failure by the Seller (individually or as Collection Agent) to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which the Seller is a party or to perform any of its respective duties under the Contracts;
(x) the failure of the Seller to pay when due any taxes, including without limitation, sales, excise or personal property taxes payable in connection with any of the Receivables;
(xi) any repayment by an Indemnified Party of any amount previously distributed which such Indemnified Party believes in good faith is required to be made;
(xii) the commingling by the Seller or the Collection Agent of Collections of Pool Receivables at any time with other funds;
(xixiii) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Purchases by the Seller, the ownership or maintenance of any interest in the Transferred Assets of or any Receivable, Seller Related Security or Contract;
(xiv) the enforcement or legal recognition failure of any prior interest under Lock-Box Bank to remit any amounts held in the Mortgage Lock-Boxes or the Lock-Box Accounts pursuant to the instructions of the Collection Agent, the Agent, SFC or the Seller (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Lock-Box Agreement whether by reason of the exercise of set-off rights or otherwise;
(xv) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor of the Seller may be located as a result of the failure of the Seller to qualify to do business or file any Receivables notice of business activity report or the proceeds thereofany similar report; or
(xiixvi) any breakage and other expensesaction taken by the Seller, or the Collection Agent (if any, the Seller or any Affiliate or designee of the Investor Seller) in the enforcement or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance Collection of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; orReceivable.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Shaw Industries Inc)
Indemnities by the Seller. Without limiting any other rights which the Agent, the Owner, Citibank or CNAI or any Affiliate thereof Person may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of indemnifies and holds harmless, on an after Tax basis, the Administrator, the Agent, the Ownereach Purchaser Agent, Citibank and CNAI each Purchaser and each Affiliate thereof Liquidity Provider and their respective officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, liabilities and related causes of action, liabilities, penalties, Taxes, costs and expenses, expenses (including reasonable attorneys' fees and disbursements court costs) (all of the foregoing being collectively referred to as "collectively, the “Indemnified Amounts"), awarded against Losses”) at any time imposed on or incurred by any of them Indemnified Party arising out of or as a result of this Agreement or otherwise relating to any Transaction Document, the ownership of Eligible Assets or in respect transactions contemplated thereby, the acquisition of any Receivable Receivables, Related Security and Collections or any Contractaction taken or omitted by any of the Indemnified Parties (including any action taken by the Agent as attorney-in-fact for the Seller pursuant to Section 3.5(b)), excludingwhether arising by reason of the acts to be performed by the Seller hereunder or otherwise, however, (i) excluding only Indemnified Amounts Losses to the extent resulting (a) such Indemnified Losses resulted from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI Indemnified Party seeking indemnification or any Affiliate of such Affiliate Indemnified Party or (iib) recourse such Indemnified Losses include Taxes or (except c) such Indemnified Losses arose as otherwise specifically provided in this Agreement) for uncollectible Receivablesa result of any default, insolvency, receivership or lack of creditworthiness of an Obligor or the Insurer. Without limiting the foregoingforegoing indemnification, but subject to the limitations set forth in clauses (a) and (c) of the previous sentence, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Party for Indemnified Amounts Losses relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made by the Seller Seller, any Originator, the Servicer, the Backup Servicer or the Administrator (or any employee or agent of its officersthe Seller, any Originator, the Servicer, the Backup Servicer or the Administrator) under or in connection with this Agreement, the Original Agreement, any Investor Periodic Report or any other information or report delivered by or on behalf of the Seller Seller, any Originator, the Servicer, the Backup Servicer or the Administrator pursuant hereto or to the Original Agreementhereto, which shall have been being false or incorrect in any material respect when made or deemed made;
(iiiii) the failure by the Seller Seller, any Originator, the Servicer, the Backup Servicer or the Administrator to comply with any applicable law, rule or regulation with respect related to any Pool Receivable or the related ContractReceivable, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule or regulationregulation or the failure by the Seller to satisfy any of its obligations under any Transaction Document;
(iviii) the failure of the Seller to vest and maintain vested in the Owner Agent, for the benefit of an Eligible Asset an undivided percentage the Purchasers, a perfected ownership interest, to the extent of such Eligible Asset, or security interest in the Receivables in, or purporting to be inReceivables, the Receivables PoolRelated Security and the Collections property conveyed pursuant to Section 1.1. and Section 1.8, free and clear of any Adverse Claim except for the lien, if applicable, referred Claim;
(iv) any commingling of funds to in Section 4.01(h)which any Indemnified Party is entitled hereunder with any other funds;
(v) any failure of a Blocked Account Bank to comply with the failure to file, terms of the applicable Blocked Account Agreement or any delay in filing, financing statements or other similar instruments or documents under the UCC failure for any reason of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting Collections to be inremitted to the Agent, the Receivables Pool, whether at Purchaser Agents and the time of any Purchase or reinvestment or at any subsequent timePurchasers entitled thereto to the extent required by this Agreement;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the any Obligor) of the any Obligor to the payment of any Receivable inReceivable, or purporting any other claim resulting from the sale or lease of goods or the rendering of services related to be insuch Receivable or the furnishing or failure to furnish any such goods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(vii) any failure of the Seller, any Originator, the Receivables Pool Administrator or any Affiliate of any thereof, to perform its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document to which such Person is a party (as a Servicer or otherwise);
(viii) any action taken by the Agent as attorney-in-fact for the Seller pursuant to Section 3.5(b);
(ix) any environmental liability claim, products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort, arising out of or in connection with any Receivable or any other suit, claim or action of whatever sort relating to any of the Transaction Documents;
(x) any dispute, claim, offset or defense (other than discharge in any insolvency or bankruptcy of the Insurer or any delay occurring in connection with any insolvency or bankruptcy proceeding relating to the Insurer) of the Insurer to the payment of any claim under the Policy (including, without limitation, a defense based on such Receivable or the related Contract Policy not being a legal, valid and binding obligation of such Obligor the Insurer enforceable against it in accordance with its terms), or any other claim resulting from relating to the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(viii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ix) any products liability claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
(x) the commingling of Collections of Pool Receivables at any time with other funds;Policy; or
(xi) the enforcement or legal recognition failure of any prior interest under the Mortgage loss in or respect of an Eligible Receivable to be payable in full (after deducting any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically co-insurance amounts set forth in the definition of Fixed Rate; orPolicy) from Insurance Payments for any reason.
Appears in 1 contract
Samples: Receivables Sale Agreement (Alliance One International, Inc.)
Indemnities by the Seller. Without limiting any ------------------------- other rights which that the Agent, the Owner, Citibank or CNAI Securitization Parties or any Affiliate thereof of their respective Affiliates, employees, agents, successors, transferees or assigns (each, an "Indemnified Party") may have hereunder or under applicable law, ----------------- the Seller hereby agrees to indemnify each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Party from and against any and all claims, damages, losses, claims, liabilities and related costs and expenses, losses and liabilities (including reasonable attorneys' fees and disbursements Attorney Costs) (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 resulting from ------------------- this Agreement or any other Transaction Document (whether directly or indirectly) or the use of proceeds of purchases or reinvestments or the ownership of Eligible Assets the Purchased Interests, or any interest therein, or in respect of any Receivable or any ContractReceivable, excluding, however, (ia) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party or resulting from litigation between two or more Indemnified Parties and not related to any action of omission or alleged action or omission on the Agentpart of the Seller, the OwnerServicer, Citibank or CNAI the Guarantor or any such Affiliate or Originator, (iib) recourse (except as otherwise specifically provided in this Agreement) for uncollectible ReceivablesPool Receivables to be written off consistent with the Credit and Collection Policy, or (c) any net income taxes or franchise taxes imposed on such Indemnified Party by the jurisdiction under the laws of which such Indemnified Party is organized or qualified (or should be qualified) to do business or any political subdivision thereof. Without limiting or being limited by the foregoing, and subject to the exclusions set forth in the preceding sentence, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof each Indemnified Party any and all amounts necessary to indemnify the Agent, the Owner, Citibank such Indemnified Party from and CNAI against any and each Affiliate thereof for all Indemnified Amounts relating to or resulting fromfrom any of the following:
(i) the creation failure of an undivided percentage ownership interest in any Receivable which is not at included in the date calculation of the creation of such interest Net Receivables Pool Balance as an Eligible Receivable or which thereafter ceases to be an Eligible Receivable, the failure of any information contained in a Seller Report to be true and correct, or the failure of any other information provided to any Securitization Party with respect to Receivables, Related Security, Collections or this Agreement to be true and correct;
(ii) reliance on the failure of any representation or warranty or statement made or deemed made by the Seller (or any of its officers) or the Servicer under or in connection with this Agreement, the Original Agreement, any Investor Report Agreement or any other information or report delivered by the Seller pursuant hereto or Transaction Document to the Original Agreement, which shall have been false or incorrect true and correct in any material respect all respects when made or deemed made;
(iii) the failure by the Seller or the Servicer to comply with the Credit and Collection Policy or any applicable law, rule or regulation with respect to any Pool Receivable Related Security or the related Contract, Contract Documents; or the nonconformity failure of any Pool Receivable Related Security or the related Contract with Documents to conform to any such applicable law, rule or regulation;
(iv) the failure to vest vest, and maintain vested, in the Owner Administrator, for the benefit of an Eligible Asset an the Securitization Parties, a valid and enforceable (A) perfected undivided percentage ownership interest, to the extent of such Eligible Assetthe Purchased Interests, in the Receivables in, or purporting to be in, the Receivables PoolPool and the Related Security and Collections with respect thereto and (B) first priority perfected security interest in the items described in Section 1.2(d), in each case, -------------- free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h)Claim;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent timeIntentionally Omitted;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract Document 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 goods or services related to such Receivable or the furnishing or failure to furnish such merchandise goods or servicesservices or relating to collection activities with respect to such Receivable (if such collection activities were performed by the Seller or any of its Affiliates acting as Servicer or by any agent or independent contractor retained by the Seller or any of its Affiliates);
(viiivii) any failure of the Seller, as Collection Agent Seller or otherwise, the Servicer to perform its duties or obligations in accordance with the provisions of Article VIthis Agreement or any other Transaction Document or to perform its duties or obligations in connection with any Pool Receivable;
(ixviii) any products claim (including, without limitation, any breach of warranty, product liability claim or environmental claim), investigation, litigation or proceeding arising out of or in connection with merchandise, insurance any Pool Receivable or services which are the subject of any ContractRelated Security;
(xix) the commingling of Collections of Pool Receivables at any time with other fundsfunds and any lost, mutilated, destroyed or missing Contract Documents;
(x) any investigation, litigation or proceeding related to this Agreement or any other Transaction Document (except if unreasonably instituted by any Securitization Party) or the use of proceeds of purchases or reinvestments or the ownership of the Purchased Interest or in connection with any Pool Receivable or Related Security;
(xi) any reduction in Capital as a result of the enforcement distribution of Collections pursuant to Section 1.4(d), in the -------------- event that all or legal recognition a portion of such distributions shall thereafter be rescinded or otherwise must be returned for any reason;
(xii) as at the date of any prior interest under purchase or reinvestment the Mortgage in or aggregate of the Purchased Interests of all Purchasers exceeds 100% after giving effect to any Receivables purchase or the proceeds thereofreinvestment by any Purchaser hereunder; or
(xiixiii) the enforcement of any breakage Transaction Document against the Seller, the Servicer, the Guarantor or any Originator by any Securitization Party (except if unreasonably instituted by any Securitization Party). Indemnification under this Section 3.1 shall survive the termination ----------- of this Agreement and other expenses, if any, of the Investor or the Owner (includingshall include, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs reasonable fees and expenses specifically set forth in the definition of Fixed Rate; orcounsel and expenses of litigation.
Appears in 1 contract
Indemnities by the Seller. Without limiting any other rights which the Agent, the Owner, Citibank or CNAI or any Affiliate thereof may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), awarded against or incurred by any of them arising out of or as a result of this Agreement or the ownership of Eligible Assets or in respect of any Receivable or any Contract, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report or any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule or regulation;; 50
(iv) the failure to vest in the Owner of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables in, or purporting to be in, the Receivables Pool, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h);
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(viii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ix) any products liability claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
(x) the commingling of Collections of Pool Receivables at any time with other funds;
(xi) the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; or
Appears in 1 contract
Samples: Trade Receivables Purchase and Sale Agreement (Detroit Edison Securitization Funding LLC)
Indemnities by the Seller. Without limiting any other rights which (a) The Seller agrees to hold the Purchaser, the Deal Agent, any Secured Party, any Affected Party and any Affiliates of the Owner, Citibank or CNAI or any Affiliate thereof may have hereunder or under applicable lawPurchaser, the Seller hereby agrees to indemnify each of the Deal Agent, any Secured Party and any Affected Party and the OwnerPurchaser’s, Citibank the Deal Agent’s, any Secured Party’s, any Affected Party’s and CNAI their Affiliates’ officers, directors, shareholders, partners, members, owners, employees, agents, attorneys, Affiliates and advisors (each Affiliate thereof an “Indemnified Party” and collectively the “Indemnified Parties”) harmless from and indemnify any Indemnified Party against any and all damagesliabilities, losses, claimsdamages, liabilities and related costs and judgments, costs, expenses, including reasonable attorneys' fees and disbursements penalties or fines of any kind that may be imposed on, incurred by or asserted against such Indemnified Party (all of collectively, the foregoing being collectively referred to as "“Indemnified Amounts")”) in any way relating to, awarded against or incurred by any of them arising out of or as a result resulting from (i) the Facility, this Agreement, the Repurchase Documents, the Mortgage Asset Purchase Agreement, the Mortgage Loan Documents, any Purchased Item, any Letter of this Agreement Credit, the Pledged Collateral and any other collateral for the Facility or the ownership of Eligible Assets any transaction or Transaction contemplated hereby or thereby, or any amendment, supplement, extension or modification of, or any waiver or consent under or in respect of, this Agreement, the Repurchase Documents, the Mortgage Asset Purchase Agreement, the Mortgage Loan Documents, any Purchased Item, the Pledged Collateral and any other collateral for the Facility, or any transaction or Transaction contemplated hereby or thereby, (ii) any Mortgage Asset, any Purchased Item, any Letter of Credit, any Pledged Collateral or any other collateral for the Facility, (iii) any violation or alleged violation of, non-compliance with or liability under any Applicable Law (including, without limitation, violation of securities laws and Environmental Laws), (iv) ownership of, Liens on, security interests in or the exercise of rights and/or remedies under the Repurchase Documents, the Mortgage Loan Documents, the Purchased Items, the Pledged Collateral, any other collateral for the Facility, the Underlying Mortgaged Property, any other related Property or collateral or any part thereof or any interest therein or receipt of any Receivable Income or rents, (v) any accident, injury to or death of any person or loss of or damage to property occurring in, on or about any Underlying Mortgaged Property, any other related Property or collateral or any Contractpart thereof, excludingthe Purchased Items or on the adjoining sidewalks, howevercurbs, parking areas, streets or ways, (ivi) Indemnified Amounts to any use, nonuse or condition in, on or about, or possession, alteration, repair, operation, maintenance or management of, any Underlying Mortgaged Property, any other related Property or collateral or any part thereof or on the extent resulting from gross negligence adjoining sidewalks, curbs, parking areas, streets or willful misconduct ways, (vii) any failure on the part of the Seller, the Limited Guarantor, the Parent or the Pledgor to perform or comply with any of the terms of the Mortgage Loan Documents, the Repurchase Documents, the Purchased Items, the Pledged Collateral or any other collateral for the Facility, (viii) performance of any labor or services or the furnishing of any materials or other property in respect of the Underlying Mortgaged Property, any other related Property or collateral, the Purchased Items or any part thereof, (ix) any claim by brokers, finders or similar Persons claiming to be entitled to a commission in connection with any lease or other transaction involving any Underlying Mortgaged Property, any other related Property or collateral, the Purchased Items or any part thereof or the Repurchase Documents, (x) any Taxes including, without limitation, any Taxes attributable to the execution, delivery, filing or recording of any Repurchase Document, any Mortgage Loan Document or any memorandum of any of the foregoing, (xi) any Lien or claim arising on or against the Underlying Mortgaged Property, any other related Property or collateral, the Pledged Collateral, the Purchased Items or any part thereof under any Applicable Law or any liability asserted against the Deal Agent, the OwnerPurchaser, Citibank or CNAI any Secured Party or any such Affiliate Affected Party with respect thereto, (xii) the claims of any lessee or any Person acting through or under any lessee or otherwise arising under or as a consequence of any leases with respect to any Underlying Mortgaged Property, related Property or collateral, or any claims of a Borrower, (iixiii) recourse any civil penalty or fine assessed by OFAC against, and all reasonable costs and expenses (except including counsel fees and disbursements) incurred in connection with the defense thereof, by any Indemnified Party as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting a result of conduct of the foregoingSeller, the Seller shall pay on demand to the AgentPledgor, the OwnerLimited Guarantor, Citibank or CNAI the Parent or any Affiliate thereof other Repurchase Party that violates any sanction enforced by OFAC, (xiv) any and all amounts necessary Indemnified Amounts arising out of, attributable or relating to, accruing out of, or resulting from (1) a past, present or future violation or alleged violation of any Environmental Laws in connection with any Property or Underlying Mortgaged Property by any Person or other source, whether related or unrelated to indemnify the AgentSeller, the OwnerPledgor, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts the Limited Guarantor, the Parent or any Borrower, (2) any presence of any Materials of Environmental Concern in, on, within, above, under, near, affecting or emanating from any Property or Underlying Mortgaged Property, (3) the failure to timely perform any Remedial Work, (4) any past, present or future activity by any Person or other source, whether related or unrelated to the Seller, the Pledgor, the Limited Guarantor, the Parent or any Borrower in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from any Property or Underlying Mortgaged Property of any Materials of Environmental Concern at any time located in, under, on, above or affecting any Property or Underlying Mortgaged Property, (5) any past, present or future actual Release (whether intentional or unintentional, direct or indirect, foreseeable or unforeseeable) to, from, on, within, in, under, near or affecting any Property or Underlying Mortgaged Property by any Person or other source, whether related or unrelated to the Seller, the Parent, the Limited Guarantor, any other Repurchase Party or any Borrower, (6) the imposition, recording or filing or the threatened imposition, recording or filing of any Lien on any Property or Underlying Mortgaged Property with regard to, or as a result of, any Materials of Environmental Concern or pursuant to any Environmental Law, or (7) any misrepresentation or inaccuracy in any representation or warranty in any material respect or material breach or failure to perform any covenants or other obligations pursuant to this Agreement, the other Repurchase Documents or any of the Mortgage Loan Documents or relating to or resulting from:
(i) the creation of an undivided percentage ownership interest environmental matters in any Receivable which is not at the date way including, without limitation, under any of the creation of such interest an Eligible Receivable Mortgage Loan Documents or which thereafter ceases to be an Eligible Receivable;
(iixv) reliance on any representation or warranty made or deemed made by the Seller (Seller, the Limited Guarantor or any of its officers) their respective officers under or in connection with this Agreement, the Original Agreement, any Investor Report Agreement or any other information or report delivered by the Seller pursuant hereto or to the Original AgreementRepurchase Document, which that shall have been false or incorrect in any material respect when made or deemed made;
made or delivered, (iiixvi) the failure by the Seller Seller, the Limited Guarantor or any Servicer to comply with any applicable lawterm, rule provision or regulation covenant contained in this Agreement, the Repurchase Documents, any Servicing Agreement or any agreement executed in connection with the foregoing agreements, or with any Applicable Law or with respect to any Pool Receivable or the related ContractPurchased Items, or the nonconformity of any Pool Receivable or the related Contract Purchased Items with any such applicable lawApplicable Law, rule or regulation;
(ivxvii) the failure to vest and maintain vested in the Owner of an Eligible Asset Deal Agent, as agent for the Secured Parties, an undivided percentage ownership interest, to the extent of such Eligible Asset, interest in the Receivables inPurchased Assets, or purporting to be in, the Receivables Pooltogether with all Income, free and clear of any Adverse Claim except Lien (other than Permitted Liens) whether existing at the time of any Transaction or at any time thereafter, (xviii) the aggregate Repurchase Price for all Transactions exceeding the lienMaximum Amount on any Business Day, if applicable, referred to in Section 4.01(h);
(vxix) the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws Applicable Laws with respect to any Receivables in, or purporting to be in, the Receivables PoolPurchased Items, whether at the time of any Purchase or reinvestment Transaction or at any subsequent time;
, (vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(viixx) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the ObligorBorrower) of the Obligor Borrower to the payment of with respect to any Receivable in, or purporting to be in, the Receivables Pool Purchased Item (including, without limitation, a defense based on such Receivable or the related Contract Purchased Item not being a legal, valid and binding obligation of such Obligor Borrower enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable Purchased Item or the furnishing or failure to furnish such merchandise or services;
, (viiixxi) any failure of the Seller, as Collection Agent the Limited Guarantor or otherwise, any Servicer to perform its duties or obligations in accordance with the provisions of Article VI;
this Agreement, any Servicing Agreement or any of the other Repurchase Documents or any failure by the Seller, the Limited Guarantor, any Servicer or any Affiliate of the Seller or the Limited Guarantor to perform its respective duties under any Purchased Item, (ixxxii) the failure of the Seller, the Limited Guarantor or any Servicer to remit any Income due hereunder to the Collection Account on or before the date such Income is required to be deposited therein (whether by the exercise of setoff rights or otherwise), (xxiii) any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which a Borrower may be located as a result of the failure of the Seller to qualify to do business or file any notice or business activity report or any similar report, (xxiv) any action taken by the Seller, the Limited Guarantor or any Servicer in the enforcement, collection or foreclosure of any Purchased Item, (xxv) any products liability claim arising out or personal injury
(b) Any amounts subject to the indemnification provisions of or in connection with merchandisethis Section 11.1 shall be paid by the Seller to the Indemnified Party within five (5) Business Days following such Person’s demand therefor. For the avoidance of doubt, insurance or services which are the subject an Indemnified Party may seek payment of any Contract;
(x) the commingling of Collections of Pool Receivables Indemnified Amount at any time with other funds;and regardless of whether a Default or an Event of Default then exists or is continuing.
(xic) If for any reason the enforcement indemnification provided in this Section 11.1 is unavailable to the Indemnified Party or legal recognition is insufficient to hold an Indemnified Party harmless, then the Seller shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Seller and the Limited Guarantor on the other hand but also the relative fault of such Indemnified Party as well as any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; orother relevant equitable considerations.
(xiid) any breakage and other expenses, if any, The obligations of the Investor Seller under this Article XI shall survive the resignation or removal of the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset Deal Agent and the costs and expenses specifically set forth in the definition termination of Fixed Rate; orthis Agreement.
Appears in 1 contract
Samples: Master Repurchase Agreement (Municipal Mortgage & Equity LLC)
Indemnities by the Seller. Without limiting any other rights which that the Agent, the OwnerInvestors, Citibank or CNAI the Banks or any Affiliate thereof of their respective Affiliates (each, an "Indemnified Party") may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Party from and against any and all damages, losses, claims, losses and liabilities and related costs and expenses, (including reasonable attorneys' fees and disbursements fees) (all of the foregoing being collectively referred to as "Indemnified Amounts"), awarded against or incurred by any of them ) arising out of or as a result of resulting from this Agreement or the other Transaction Documents or the use of proceeds of purchases or reinvestments or the ownership of Eligible Assets Receivable Interests or in respect of any Receivable or any Contract, excluding, however, (ia) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agentsuch Indemnified Party, the Owner, Citibank or CNAI or any such Affiliate or (iib) recourse (except as otherwise specifically provided in this Agreement) for uncollectible ReceivablesReceivables or (c) any income taxes incurred by such Indemnified Party arising out of or as a result of this Agreement or the ownership of Receivable Interests or in respect of any Receivable or any Contract. Without limiting or being limited by the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof each Indemnified Party any and all amounts necessary to indemnify the Agent, the Owner, Citibank such Indemnified Party from and CNAI against any and each Affiliate thereof for all Indemnified Amounts relating to or resulting fromfrom any of the following:
(i) the creation of an undivided percentage ownership interest in any Receivable which purports to be part of the Net Receivables Pool Balance but which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty or statement made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement, Agreement and the Original Agreement, any Investor Report or any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, Transaction Documents which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by the Seller or the Originator to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract, ; or the nonconformity failure of any Pool Receivable or the related Contract with to conform to any such applicable law, rule or regulation;
(iv) the failure to vest in the Owner of an Eligible Asset an Investors or the Banks, as the case may be, (a) a perfected undivided percentage ownership interest, to the extent of such Eligible Asseteach Receivable Interest, in the Receivables in, or purporting to be in, the Receivables PoolPool and the Related Security and Collections in respect thereof, or (b) a perfected security interest as provided in Section 2.10, in each case free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h)Claim;
(v) the failure to filehave filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables PoolPool and the Related Security and Collections in respect thereof, whether at the time of any Purchase purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or servicesservices or relating to collection activities with respect to such Receivable (if such collection activities were performed by the Seller or any of its Affiliates acting as Collection Agent);
(viiivii) any failure of the Seller, as Collection Agent or otherwise, Seller to perform its duties or obligations in accordance with the provisions of Article VIhereof or to perform its duties or obligations under the Contracts;
(ixviii) any products liability or other claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
; (xix) the commingling of Collections of Pool Receivables at any time with other funds;
(xi) the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; or
Appears in 1 contract
Indemnities by the Seller. Without limiting any other rights which the Agent, the Owner, Citibank or CNAI any Owner or any Affiliate thereof of their respective Affiliates (each an "Indemnified Party") may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Party from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), ) awarded against or incurred by any of them arising out of or as a result of this Agreement or the use of proceeds of Purchases or the ownership of Eligible Assets or in respect of any Receivable or any Contract, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate Indemnified Party or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting or being limited by the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof each Indemnified Party any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof such Indemnified Party for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Seller Report or any other information or report delivered by the Seller pursuant hereto or to the Original Agreementhereto, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule or regulation;
(iv) the failure to vest in the Owner of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables in, or purporting to be in, the Receivables PoolPool and the Related Security and Collections in respect thereof, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h)Claim;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables PoolPool and the Related Security and Collections in respect thereof, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(viiivii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VIVI or to perform its duties or obligations under the Contracts;
(ixviii) any products liability claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;; or
(ix) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Purchases or the ownership of Eligible Assets or in respect of any Receivable or any Contract; or
(x) the commingling of Collections of Pool Receivables at any time with other funds;
(xi) ; provided, that without in any way limiting the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, scope of the Investor or foregoing indemnity, such indemnity is not intended to restrict the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) Seller from servicing Receivables as the Collection Agent pursuant to Article 6 of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; orthis Agreement.
Appears in 1 contract
Samples: Trade Receivables Purchase and Sale Agreement (Geon Co)
Indemnities by the Seller. (a) Without limiting any other rights which that the Collateral Agent, the OwnerPurchaser, Citibank or CNAI the Operating Agent, the Transaction Liquidity Agent, any Transaction Liquidity Provider, the Letter of Credit Agent or any Affiliate thereof Letter of Credit Provider or any director, officer, employee, agent or incorporator of such party (each an "INDEMNIFIED PARTY") may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Party from and against any and all damagesclaims, losses, claimsliabilities, liabilities obligations, damages, penalties, actions, judgments, suits, and related costs and expensesexpenses of any nature whatsoever related thereto, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified AmountsINDEMNIFIED AMOUNTS"), awarded against or which may be imposed on, incurred by or asserted against an Indemnified Party in any of them way arising out of or as a result relating to (i) any breach of the Seller's obligations under this Agreement or any Related Document, (ii) the ownership sale or the pledge of Eligible Assets the Transferred Receivables, or in respect of (iii) any Receivable or any Contract, excluding, however, (i) however Indemnified Amounts to the extent resulting solely from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible ReceivablesIndemnified Party. Without limiting or being limited by the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof each Indemnified Party any and all amounts necessary to indemnify the Agent, the Owner, Citibank such Indemnified Party from and CNAI against any and each Affiliate thereof for all Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(iiA) reliance on any representation or warranty made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report Related Document or any report or other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iiiB) the failure by the Seller to comply with any term, provision or covenant contained in this Agreement, any Related Document or any agreement executed by it in connection with this Agreement or with any applicable law, rule or regulation with respect to any Pool Transferred Receivable or the its related Contract, or the nonconformity of any Pool Transferred Receivable or the its related Contract with any such applicable law, rule or regulation;; or
(ivC) the failure to vest and maintain vested in the Owner Purchaser legal and equitable title to and ownership of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables inwhich are, or purporting are purported to be inbe, the Receivables PoolTransferred Receivables, together with all Collections in respect thereof, free and clear of any Adverse Claim (except for the lien, if applicable, referred to in Section 4.01(h);
(vas permitted hereunder) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether existing at the time of any Purchase or reinvestment the purchase of such Receivable or at any subsequent time;time thereafter, and to maintain or transfer to the Collateral Agent a first priority, perfected security interest therein.
(vib) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related Any Indemnified Amounts subject to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy indemnification provisions of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract this Section 12.01 not being a legal, valid and binding obligation of such Obligor enforceable against it paid in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(viii) any failure of the Seller, as Collection Agent or otherwiseArticle VI, to perform its duties or obligations the extent that funds are available therefor in accordance with the provisions of Article VI;
(ix) any products liability claim arising out of or in connection with merchandise, insurance or services which are shall be paid to the subject of any Contract;
(x) the commingling of Collections of Pool Receivables at any time with other funds;
(xi) the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; orIndemnified Party within five Business Days following demand therefor.
Appears in 1 contract
Samples: Receivables Purchase and Servicing Agreement (New Pameco Georgia Corp)
Indemnities by the Seller. Without limiting any other rights which that the Agent, the OwnerInvestors, Citibank or CNAI the Banks or any Affiliate thereof of their respective Affiliates (each, an "Indemnified Party") may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Party from and against any and all damages, losses, claims, losses and liabilities and related costs and expenses, (including reasonable attorneys' fees and disbursements fees) (all of the foregoing being collectively referred to as "Indemnified Amounts"), awarded against or incurred by any of them ) arising out of or as a result of resulting from this Agreement or the other Transaction Documents or the use of proceeds of purchases or reinvestments or the ownership of Eligible Assets Receivable Interests or in respect of any Receivable or any Contract, excluding, however, (ia) Indemnified Amounts to the extent resulting found by a court of competent jurisdiction to have resulted from gross negligence or willful misconduct on the part of the Agentsuch Indemnified Party, the Owner, Citibank or CNAI or any such Affiliate or (iib) recourse (except as otherwise specifically provided in this Agreement) for uncollectible ReceivablesReceivables or (c) any income taxes incurred by such Indemnified Party arising out of or as a result of this Agreement or the ownership of Receivable Interests or in respect of any Receivable or any Contract. Without limiting or being limited by the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof each Indemnified Party any and all amounts necessary to indemnify the Agent, the Owner, Citibank such Indemnified Party from and CNAI against any and each Affiliate thereof for all Indemnified Amounts relating to or resulting fromfrom any of the following:
(i) the creation of an undivided percentage ownership interest characterization in any Receivable which is not at the date Seller Report or other written statement made by or on behalf of the creation Seller of such interest any Receivable as an Eligible Receivable or which thereafter ceases to be as included in the Net Receivables Pool Balance which, as of the date of such Seller Report or other statement, is not an Eligible ReceivableReceivable or should not be included in the Net Receivables Pool Balance;
(ii) reliance on any representation or warranty or statement made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report Agreement or any of the other information or report delivered by the Seller pursuant hereto or to the Original Agreement, Transaction Documents which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by the Seller or the Originator to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract, ; or the nonconformity failure of any Pool Receivable or the related Contract with to conform to any such applicable law, rule or regulation;
(iv) the failure to vest in the Owner of an Eligible Asset an Investors or the Banks, as the case may be, (a) a perfected undivided percentage ownership interest, to the extent of such Eligible Asseteach Receivable Interest, in the Receivables in, or purporting to be in, the Receivables PoolPool and the Related Security and Collections in respect thereof, or (b) a perfected security interest as provided in Section 2.11, in each case free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h)Claim;
(v) the failure to filehave filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables PoolPool and the Related Security and Collections in respect thereof, whether at the time of any Purchase purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or servicesservices or relating to collection activities with respect to such Receivable (if such collection activities were performed by the Seller or any of its Affiliates acting as Collection Agent);
(viiivii) any failure of the Seller, as Collection Agent or otherwise, Seller to perform its duties or obligations in accordance with the provisions of Article VIhereof or to perform its duties or obligations under the Contracts;
(ixviii) any products liability or other claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
(xix) the commingling of Collections of Pool Receivables at any time with other funds;
(x) any third party investigation, litigation or proceeding related to this Agreement or the use of proceeds of purchases or reinvestments or the ownership of Receivable Interests or in respect of any Receivable or Related Security or Contract (excluding any collection costs of the Agent, the Investors or the Banks arising directly from the financial inability of an Obligor to pay in respect of any Receivable);
(xi) any failure of the enforcement Seller to comply with its covenants contained in this Agreement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; orother Transaction Document;
(xii) any breakage and claim brought by any Person other expenses, if any, than an Indemnified Party arising from any activity by the Seller or any Affiliate of the Investor Seller in servicing, administering or collecting any Receivable; or
(xiii) the failure of the Seller or the Owner (Originator to comply with any term or provision of any Contract that contains a confidentiality provision that purports to restrict the ability of the Agent, the Investors or the Banks to exercise their rights under this Agreement, including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with their right to review the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; orContract.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Lexmark International Inc /Ky/)
Indemnities by the Seller. Without limiting any other rights which the Agent, the Owner, Citibank or CNAI or any Affiliate thereof Purchaser may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the AgentPurchaser and its respective officers, the Ownerdirectors, Citibank agents and CNAI and each Affiliate thereof employees from and against any and all damages, losses, claims, liabilities and related liabilities, costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), ) awarded against or incurred by any of them the Purchaser arising out of or as a result of this Agreement or the ownership ownership, either directly or indirectly, by the Purchaser of Eligible Assets or in respect of any Receivable or any Contract, the Transferred Receivables excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate Purchaser or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting the generality of the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Purchaser for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(iia) reliance on any representation or warranty made by the Seller (or any of its their respective officers) under or in connection with this Agreement, the Original Agreement, any Investor Report Agreement or any other information or report delivered by the Seller pursuant hereto or to the Original Agreementhereto, which shall have been false or incorrect in any material respect when made or deemed made;
(iiib) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule or regulation;
(ivc) the failure to vest and maintain vested in the Owner of an Eligible Asset an undivided percentage ownership interestPurchaser, to the extent of such Eligible Asset, Transferred Receivables in the Receivables in, or purporting to be in, the Receivables Pool, free and clear of any Adverse Claim (except for as created by the lien, if applicable, referred to in Section 4.01(hPurchaser or its assigns);
(vd) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC or the laws of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent timeReceivable;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(viie) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise products or services related to such Receivable or the furnishing or failure to furnish such merchandise products or services;
(viiif) any failure of the Seller, as Collection Agent servicing and collection agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VIthis Agreement or under the Transfer Agreement;
(ixg) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise, insurance products or services which are the subject of any Contract;
(x) the commingling of Collections of Pool Receivables at any time with other funds;
(xi) the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereofReceivable; or
(xiih) the transfer of an ownership interest in any breakage and other expenses, if any, of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; orReceivable for which reconveyance is required under Section 6.1 hereof.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Gulf Corp /De/)
Indemnities by the Seller. Without limiting any other rights which the Agent, the Owner, Citibank or CNAI or any Affiliate thereof Indemnified Party may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Party from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified AmountsINDEMNIFIED AMOUNTS"), ) awarded against or incurred by any of them arising out of or as a result of this Agreement or the use of proceeds of Purchases or the ownership of Eligible Assets or in respect of any Receivable or any Contract, excluding, however, (a) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, (b) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables or (c) any income taxes incurred by any of them arising out of or as a result of this Agreement or the ownership of Eligible Assets or in respect of any Receivable or any Contract, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting or being limited by the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof each Indemnified Party any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof such Indemnified Party for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made by the Seller or any Originator (or any of its officers) under or in connection with this Agreement, the Original Agreement, Agreement or any Investor other Transaction Document or any Seller Report or any other information or report delivered by the Seller or any Originator pursuant hereto or to the Original Agreementhereto, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by the Seller or any Originator to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule or regulation;
(iv) the failure to vest continuously in the Eligible Asset Owner of an Eligible Asset an undivided percentage ownership interest, to the extent of such each Eligible Asset, in the Receivables in, or purporting to be in, the Receivables PoolPool and the Related Security and Collections in respect thereof, free and clear of any Adverse Claim except for Claim; or the lienfailure of the Seller to have obtained a first priority perfected ownership interest in the Pool Receivables and the Related Security and Collections with respect thereto transferred or purported to be transferred to the Seller under the Receivables Contribution and Sale Agreement, if applicable, referred to in Section 4.01(h)free and clear of any Adverse Claim;
(v) the failure by the Seller to file, or any delay by the Seller in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables PoolPool and the Related Security and Collections in respect thereof, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(viiivii) any failure of the SellerSeller or any Originator, so long as such Originator is Collection Agent or otherwiseAgent, to perform its duties or obligations in accordance with hereunder or under the provisions of Article VIInvestor Agreement or any other Transaction Document or to perform its duties or obligations under any Contract;
(ixviii) any products liability claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
(ix) any investigation, litigation or proceeding related to this Agreement or any other Transaction Document or the use of proceeds of Purchases or the ownership of Eligible Assets or in respect of any Receivable or any Contract;
(x) the commingling of Collections collections of Pool Receivables at any time with other funds;; PROVIDED that, without in any way limiting the foregoing indemnity, such indemnity is not intended to restrict the Seller from servicing Receivables as the Collection Agent pursuant to Article VI of this Agreement; or
(xi) the enforcement any claim brought by any Person other than an Indemnified Party arising from any activity by any Originator or legal recognition any Affiliate of such Originator in servicing, administering or collecting any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; orPool Receivables.
(xii) any breakage and action or omission by the Seller or any Originator, so long as such Originator is Collection Agent, reducing or impairing the rights of any Owner of an Eligible Asset under this Agreement, any other expensesTransaction Document or any other instrument or document furnished pursuant hereto or thereto or with respect to any Pool Receivable;
(xiii) any cancellation or modification of a Pool Receivable, if anythe related Contract or any Related Security, of the Investor whether by written agreement, verbal agreement, acquiescence or otherwise;
(xiv) any investigation, litigation or proceeding related to or arising from this Agreement, any other Transaction Document or any document furnished pursuant hereto or thereto, or any transaction contemplated by this Agreement or any Contract or the Owner use of proceeds from any Purchase or reinvestment pursuant to this Agreement, or the ownership of, or other interest in, any Receivable, the related Contract or Related Security;
(includingxv) the existence of any Adverse Claim against or with respect to any Pool Receivable, the related Contract or the Related Security or Collections with respect thereto;
(xvi) any failure by the Seller to pay when due any taxes, including without limitationlimitation sales, attorneys' feesexcise or personal property taxes, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts payable by the Seller in connection with any Receivable or the funding related Contract or maintenance any Related Security with respect thereto;
(xvii) to the extent not covered by the foregoing clauses, the occurrence and continuance of any Eligible Asset and the costs and expenses specifically set forth in the definition Event of Fixed Rate; orTermination other than an Event of Termination arising under Section 7.01(h).
Appears in 1 contract
Indemnities by the Seller. Without limiting any other rights which (a) The Seller agrees to hold the AgentPurchaser, the Owner, Citibank or CNAI or any Affiliate thereof may have hereunder or under applicable lawAffected Parties and their Affiliates and the Purchaser, the Seller hereby agrees to indemnify Affected Parties and their Affiliates’ officers, directors, shareholders, employees, agents, attorneys, Affiliates and advisors (each of an “Indemnified Party” and collectively the Agent, the Owner, Citibank and CNAI and each Affiliate thereof “Indemnified Parties”) harmless from and indemnify any Indemnified Party against any and all damagesliabilities, losses, claimsdamages, liabilities and related costs and judgments, costs, expenses, including reasonable attorneys' fees and disbursements penalties or fines of any kind that may be imposed on, incurred by or asserted against such Indemnified Party (all of collectively, the foregoing being collectively referred to as "“Indemnified Amounts")”) in any way relating to, awarded against or incurred by any of them arising out of or as a result of this Agreement or the ownership of Eligible Assets or in respect of any Receivable or any Contract, excluding, however, resulting from (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Repurchase Documents, the Mortgage Loan Documents, any Purchased Items or any transaction or Transaction contemplated hereby or thereby, or any amendment, supplement, extension or modification of, or any waiver or consent under or in respect of, this Agreement, the Repurchase Documents, the Mortgage Loan Documents, any Investor Report Purchased Items or any other information transaction or report delivered by Transaction contemplated hereby or thereby, (ii) any Mortgage Asset, any Purchased Item or the Seller pursuant hereto or to the Original AgreementPledged Collateral, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by the Seller to comply any violation of, alleged violation, non–compliance with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule or regulation;
(iv) the failure to vest in the Owner of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables in, or purporting to be in, the Receivables Pool, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h);
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it liability under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool Applicable Law (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation violation of such Obligor enforceable against it in accordance with its termssecurities laws), (iv) ownership of the Repurchase Documents, the Mortgage Loan Documents, the Purchased Items, the Pledged Collateral, any other collateral for the Facility, the Underlying Mortgaged Property, any other related Property or collateral or any other claim resulting from the sale part thereof or any interest therein or receipt of the merchandise any Income or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
rents, (viiiv) any failure on the part of the Seller, as Collection Agent any of the Guarantors or otherwise, the Pledgor to perform its duties or obligations in accordance comply with any of the provisions terms of Article VI;
the Mortgage Loan Documents or the Repurchase Documents, (ixvi) any products liability claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
(x) the commingling of Collections of Pool Receivables at any time with other funds;
(xi) the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, of the Investor or the Owner (Taxes including, without limitation, attorneys' feesany Taxes attributable to the execution, disbursements delivery, filing or recording of any Repurchase Document, any Mortgage Loan Document or any memorandum of any of the foregoing, (vii) any Lien or claim arising on or against the Underlying Mortgaged Property, any other related Property or collateral, the Pledged Collateral, the Purchased Items or any part thereof under any Applicable Law or any liability asserted against the Purchaser with respect thereto, (viii) any civil penalty or fine assessed by OFAC against, and accrued interestall reasonable costs and expenses (including counsel fees and disbursements) of interest rate swaps, collars, forward agreements and future contracts incurred in connection with the funding defense thereof, by any Indemnified Party as a result conduct of the Seller the Pledgor, any of the Guarantors or maintenance any other Repurchase Party that violates any sanction enforced by OFAC, (xix) any violation (or alleged violation) or non–compliance (or alleged non–compliance) with Environmental Laws, the existence, correction or removal of any Eligible Asset Materials of Environmental Concern, any Remedial Work and any Release in any way affecting any Underlying Mortgaged Property or any other Property (x) the Seller’s, any of the Guarantor’s, the Pledgor’s and or any other Repurchase Party’s conduct, activities, actions and/or inactions in connection with, relating to or arising out of any of the foregoing in clauses of this Subsection 11.1(a), that, in each case, results from anything other than any Indemnified Party’s gross negligence or willful misconduct. In any suit, proceeding or action brought by an Indemnified Party in connection with any Purchased Item for any sum owing thereunder, or to enforce any provisions of any Purchased Item, the Seller will save, indemnify and hold such Indemnified Party harmless from and against all expense, loss or damage suffered by reason of any defense, set–off, counterclaim, recoupment or reduction of liability whatsoever of the account debtor, obligor or Borrower thereunder arising out of a breach by the Seller, any of the Guarantors, the Pledgor or any other Repurchase Party of any obligation thereunder or arising out of any other agreement, indebtedness or liability at any time owing to or in favor of such account debtor, obligor or Borrower or its successors from the Seller, any of the Guarantors, the Pledgor or any other Repurchase Party. The Seller also agrees to reimburse an Indemnified Party as and when billed by such Indemnified Party for all such Indemnified Party’s costs, expenses and fees incurred in connection with the enforcement or the preservation of such Indemnified Party’s rights under this Agreement, the Repurchase Documents, the Mortgage Loan Documents and any transaction or Transaction contemplated hereby or thereby, including, without limitation, the reasonable fees and disbursements of its counsel. In the case of an investigation, litigation or other proceeding to which the indemnity in this Subsection 11.1(a) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Seller, any of the Guarantors and/or the Pledgor or any of their officers, directors, shareholders, employees or creditors, an Indemnified Party or any other Person or any Indemnified Party is otherwise a party thereto and whether or not any transaction contemplated hereby is consummated.
(b) Any amounts subject to the indemnification provisions of this Section 11.1 shall be paid by the Seller to the Indemnified Party within five (5) Business Days following such Person’s demand therefor. For the avoidance of doubt, an Indemnified Party may seek payment of any Indemnified Amount at any time and regardless of whether a Default or an Event of Default then exists or is continuing. If for any reason the indemnification provided in this Section 11.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Seller shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the costs and expenses specifically set forth Seller on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations. Indemnification under Section 11.1 shall be in an amount necessary to make the definition Indemnified Party whole after taking into account any tax consequences to the Indemnified Party of Fixed Rate; orthe receipt of the indemnity provided hereunder, including the effect of such tax or refund on the amount of tax measured by net income or profits that is or was payable by the Indemnified Party. The obligations of the Seller under this Section 11.1 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Mortgage Asset Purchase Agreement (Municipal Mortgage & Equity LLC)
Indemnities by the Seller. Without limiting any other rights which the Agent, the Owner, Citibank or CNAI Purchaser or any Affiliate thereof of their respective Affiliates may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Agent, the OwnerPurchaser, Citibank and CNAI and each Affiliate thereof of their respective Affiliates from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), ) awarded against or incurred by any of them arising out of or as a result of this Agreement or the ownership of Eligible Purchased Assets or in respect of any Receivable or any Contract, excluding, however, (ia) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank Purchaser or CNAI or any such Affiliate or (iib) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Purchased Receivables; provided, however, that the liability for Indemnified Amounts partially attributable to other Persons from whom the Purchaser purchases receivables or to whom the Purchaser makes loans shall be reasonably allocated between the Seller and such other Persons by the Purchaser. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI Purchaser and each Affiliate thereof of their respective Affiliates for Indemnified Amounts relating to or resulting from:
(i) any Purchased Receivable treated as or represented by the creation of Seller to be an undivided percentage ownership interest in any Eligible Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be applicable time an Eligible Receivable;
(ii) reliance on any representation or warranty made or deemed made by the Seller Seller, the servicer (if the originator or one of its Affiliates) or any of its officers) their respective officers under or in connection with this Agreement, the Original Agreement, any Investor Report or any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iii) the failure by the Seller or the Servicer (if the Originator or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any applicable law, rule or regulation with respect to any Pool Receivable Receivable, the related Contract or the related ContractRelated Security, or the nonconformity of any Pool Receivable or Receivable, the related Contract or the Related Security with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Owner of an Eligible Asset an undivided percentage ownership interest, Purchaser or to transfer to the extent of such Eligible AssetPurchaser, legal and equitable title to and ownership of, a 100% ownership or security interest in the Receivables inwhich are, or purporting are purported to be inbe, the Receivables PoolPurchased Receivables, together with all Collections and Related Security, free and clear of any Adverse Claim (except for as otherwise provided herein or in the lien, if applicable, referred to in Section 4.01(h)Receivables Loan Agreement) whether existing at the time of the Purchase of such Receivable or at any time thereafter;
(v) the failure to maintain, as of the close of business on each Business Day prior to the Termination Date, an amount of capital outstanding which is less than or equal to the lesser of (x) the Purchase Limit minus the Discount Amount on such Business Day, or (y) the Capital Limit on such Business Day;
(vi) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables inwhich are, or purporting are purported to be inbe, the Receivables PoolPurchased Receivables, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligorobligor) of the Obligor obligor to the payment of any Receivable inwhich is, or purporting is purported to be inbe, the Receivables Pool a Purchased Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise VOIs or services Lots related to such Receivable or the furnishing or failure to furnish such merchandise VOIs or servicesLots;
(viii) any failure of the Seller, as Collection Agent Seller or otherwise, the Servicer (if the Originator or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of Article VIthis Agreement or any failure by the Originator, the Seller or any Affiliate thereof to perform its respective duties under the Contracts;
(ix) any products liability breach of contract or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise, insurance the VOls or services the Lots which are the subject of any Receivable or Contract;
(x) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes payable in connection with the Purchased Receivables;
(xi) any repayment by the Agent or the Purchaser of any amount previously distributed in reduction of Capital or payment of Yield or any other amount due hereunder, in each case which amount the Agent or the Purchaser believes in good faith is required to be repaid;
(xii) the commingling of Collections of Pool Purchased Receivables at any time with other funds;
(xixiii) any investigation, litigation or proceeding related to this Agreement or the enforcement use of proceeds of Purchases or legal recognition the ownership of Purchased Assets or in respect of any prior interest under Receivable, Related Security or Contract;
(xiv) any failure by the Mortgage Seller to give reasonably equivalent value to the Originator in or consideration for the transfer by the Originator to the Seller of any Receivables or Related Security, or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the proceeds thereofBankruptcy Code; or
(xiixv) any breakage and other expenses, if any, failure of the Investor Seller, the Originator or the Owner any of their respective agents or representatives (including, without limitation, attorneys' feesagents, disbursements representatives and accrued interestemployees of the Originator acting pursuant to authority granted under Section 6.01) to remit to the Servicer or the Agent, Collections of interest rate swaps, collars, forward agreements and future contracts in connection with Purchased Receivables remitted to the funding Seller or maintenance any such agent or representative. Any amounts subject to the indemnification provisions of any Eligible Asset and this Section 9.01 shall be paid by the costs and expenses specifically set forth in Seller to the definition of Fixed Rate; orAgent within two Business Days following the Agent's written demand therefor.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Equivest Finance Inc)
Indemnities by the Seller. (a) Without limiting any other rights which that the Agent, Purchasers or the Owner, Citibank or CNAI Administrative Agent or any Affiliate thereof of their respective officers, directors, employees, agents, transferees, successors or assigns (each, an “Indemnified Person”) may have hereunder or under applicable law, the Seller hereby agrees to indemnify and hold harmless each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Person from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), awarded Amounts that may be claimed or asserted against or incurred by any such Indemnified Person in connection with or arising out of them the transactions contemplated under this Agreement or under any other Related Document or any actions or failures to act in connection therewith, including any and all reasonable legal costs and expenses arising out of or incurred in connection with disputes between or among any parties to any of the Related Documents; provided, that the Seller shall not be liable for any indemnification to an Indemnified Person to the extent that any such Indemnified Amount (x) results from such Indemnified Person’s gross negligence or willful misconduct, in each case as finally determined by a court of competent jurisdiction, (y) constitutes recourse for uncollectible or uncollected Transferred Receivables as a result of this Agreement the insolvency, bankruptcy or the ownership failure (without cause or justification triggered by the actions of Eligible Assets or in respect of any Receivable Seller or any Contract, excluding, however, (iAffiliate thereof) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct inability on the part of the Agentrelated Obligor to perform its obligations thereunder or (z) income taxes or franchise taxes imposed on any Indemnified Person by the jurisdictions under the laws of which such Indemnified Person is organized or is doing business other than solely as a result of, the Owner, Citibank or CNAI this Agreement or any such Affiliate or Related Document. Subject to clauses (iix), (y) recourse and (except as otherwise specifically provided z) of the proviso in this Agreement) for uncollectible Receivables. Without the immediately preceding sentence, but without limiting the generality of the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof each Indemnified Person any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report Agreement or any other Related Document (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality) or on any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which thereto that shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iiiii) the failure by the Seller to comply with any term, provision or covenant contained in this Agreement, any other Related Document or any agreement executed in connection herewith or therewith (without regard to any qualifications concerning the occurrence or non-occurrence of a Material Adverse Effect or similar concepts of materiality), any applicable law, rule or regulation with respect to any Pool Transferred Receivable or the related ContractContract therefor, including any Privacy Laws, or the nonconformity of any Pool Transferred Receivable or the related Contract therefor with any such applicable law, rule or regulation;
(iv1) the failure to vest and maintain vested in the Owner Seller valid and properly perfected title to and sole legal and beneficial ownership of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables inthat constitute Transferred Receivables, or purporting to be in, the Receivables Pooltogether with all Collections in respect thereof and all other Seller Collateral, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h);
and (v2) the failure to filemaintain or transfer to the Administrative Agent, or for the benefit of itself and other Specified Parties, a first priority, perfected Lien in any delay in filing, financing statements or other similar instruments or documents under portion of the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent timeSeller Collateral;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(viiiv) any dispute, claim, offset or defense of any Obligor (other than its discharge in bankruptcy of the Obligorbankruptcy) of the Obligor to the payment of any Transferred Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, including a defense based on any Dilution Factor or on such Receivable or the related Contract therefor not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related giving rise to such Receivable or the furnishing of or failure to furnish such merchandise or servicesservices or relating to collection activities with respect to such Receivable (if such collection activities were performed by any of the Seller’s Affiliates acting as Servicer);
(viii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ixv) any products liability claim or other claim arising out of or in connection with merchandise, insurance or services which are that is the subject of any ContractContract with respect to any Transferred Receivable;
(vi) the commingling of Collections with respect to Transferred Receivables by the Seller at any time with its other funds or the funds of any other Person;
(vii) any failure by the Seller to cause the filing of, or any delay in filing, financing statements or other similar instruments or documents under the UCC or the PPSA, as applicable, of any applicable jurisdiction or any other applicable laws with respect to any Transferred Receivable that is the subject of a Purchase hereunder, whether at the time of any such Purchase or at any subsequent time to the extent such filing is necessary to maintain the perfection and priority of the interests of the Administrative Agent, for the benefit of the Purchasers, in the Transferred Receivables;
(viii) any investigation, litigation or proceeding related to this Agreement or any other Related Document or the ownership of Receivables or Collections with respect thereto or any other investigation, litigation or proceeding relating to the Seller, the Servicer or any Originator brought against any Indemnified Person as a result of any of the transactions contemplated hereby or by any other Related Document;
(ix) any failure of a Lockbox Account Bank to comply with the terms of the applicable Lockbox Account Agreement;
(x) the commingling of Collections of Pool Receivables at any time with other fundsTermination Event described in Section 8.01(d) or (e) relating to Seller;
(xi) any failure of the enforcement or legal recognition Seller to give reasonably equivalent value to the applicable Originator under the Sale Agreement in consideration of the transfer by such Originator of any prior interest Receivable, or any attempt by any Person to void any transfer of a Receivable by such Originator to the Seller under the Mortgage in statutory provisions or to any Receivables common law or the proceeds thereof; orequitable action;
(xii) any breakage and other expenses, if any, action or omission by Seller or any Transaction Party which reduces or impairs the rights of the Investor Administrative Agent or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection Specified Parties with respect to any Receivable or the funding or maintenance value of any Eligible Asset and such Receivable;
(xiii) any attempt by any Person to void any Purchase or the costs and expenses specifically set forth in the definition of Fixed RateLien granted hereunder under statutory provisions or common law or equitable action; or
(xiv) any withholding, deduction or Charge imposed upon any payments with respect to any Transferred Receivable, any Seller Assigned Agreement or any other Seller Collateral.
(b) Any Indemnified Amounts subject to the indemnification provisions of this Section 10.01 not paid in accordance with Section 2.08 shall be paid by the Seller to the Indemnified Person entitled thereto within five Business Days following demand therefor.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Gulf Corp /De/)
Indemnities by the Seller. Without limiting any other rights which the Agent, the Owner, Citibank or CNAI or any Affiliate thereof Indemnified Parties may have hereunder or under applicable lawLaw, the Seller hereby agrees to indemnify each of the Investors, the Agent, the OwnerGroup Agents, Citibank the Administrators, the Support Facility Providers and CNAI their respective officers, directors, employees, counsel and each Affiliate thereof other agents (collectively, “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities and related liabilities, costs and expenses, including reasonable attorneys' ’ fees and disbursements (all of the foregoing being collectively referred to as "“Indemnified Amounts"), ”) awarded against or incurred by any of them in any action or proceeding between the Seller or the Parent or any Subsidiary or Affiliate of the Parent (so long as the Parent or any such Subsidiary or Affiliate is the Collection Agent) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party arising out of or as a result of this Agreement or Agreement, the other Transaction Documents, the ownership of Eligible Assets or in respect of any Receivable maintenance, either directly or indirectly, by the Agent or any ContractInvestor of the Asset Interest or any of the other transactions contemplated hereby or thereby, or otherwise arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Agent or any Investor of the Asset Interest or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agentsuch Indemnified Party, the Owneras finally determined by a court of competent jurisdiction, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible ReceivablesReceivables that are uncollectable solely due to the Obligor’s financial inability to pay. Without limiting the generality of the foregoing, and subject to the exclusions set forth in the preceding sentence, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Party for Indemnified Amounts relating to or resulting from:
(ia) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made by the Seller (or any officers of its officers) the Seller under or in connection with this Agreement, Agreement or any of the Original Agreementother Transaction Documents, any Investor information in any Collection Agent Report (to the extent provided by the Seller) or any other information or report delivered by the Seller or on the Seller’s behalf pursuant hereto hereto, or pursuant to any of the Original Agreement, other Transaction Documents which shall have been incomplete, false or incorrect in any material respect when made or deemed made;
(iiib) the failure by the Seller to comply with any applicable law, rule or regulation Law with respect to any Pool Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule Law or regulationthe transfer or sale of any Receivable in violation of applicable Law;
(ivc) the failure (i) to vest and maintain vested in the Owner Seller a first priority, perfected ownership interest in the Asset Interest free and clear of an Eligible Asset an undivided percentage ownership interestany Adverse Claim or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Agent, to for the extent benefit of such Eligible Assetthe Secured Parties, in the Receivables in, or purporting to be in, the Receivables PoolAffected Assets, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h)Claim;
(vd) the failure to file, or any delay in filing, financing statements statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, of the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent timeAffected Assets;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(viie) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligorbankruptcy) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, including a defense based on such Receivable or the related Contract not being a the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Receivables or the related Contracts restricting assignment of any Receivables;
(viii) any failure of the Seller, as Collection Agent or otherwise, to perform its duties or obligations in accordance with the provisions of Article VI;
(ixf) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise, insurance merchandise or services which are the subject of any ContractReceivable;
(xg) the transfer of an interest in any Receivable other than an Eligible Receivable;
(h) the failure by the Seller to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its duties or obligations, if any, under the Receivables or related Contracts;
(i) the Net Investment exceeding the Net Receivables Pool Balance, minus the Required Reserves at any time;
(j) the failure of the Seller to pay when due any sales, excise or personal property taxes payable in connection with any of the Receivables;
(k) any repayment by any Indemnified Party of any amount previously distributed in reduction of Net Investment which such Indemnified Party believes in good faith is required to be made;
(l) the commingling by the Seller of Collections of Pool Receivables at any time with any other funds;
(xim) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments or Reinvestments by the Seller or any Originator, the ownership of the Asset Interest, or any Affected Asset (excluding any collection costs of the Agent, any Group Agent or the Investors where the Obligor is financially unable to pay);
(n) failure of any Lock-box Account Bank or Blocked Account Bank to remit any amounts held in the Lock-box Accounts or Blocked Accounts or any related lock-boxes pursuant to the instructions of the Collection Agent, the Seller, the related Originator or the Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Lock-box Account Agreement or Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise;
(o) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Seller or the applicable Originator to qualify to do business or file any notice of business activity report or any similar report;
(p) any attempt by any Person to void, rescind or set-aside any transfer by an Originator to the Seller of any Receivable or Related Security under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(q) any action taken by the Seller in the enforcement or legal recognition collection of any prior interest under Receivable;
(r) any claim by any third party arising from the Mortgage in or to any Receivables or Seller’s administration of the Receivables;
(s) the use of the proceeds thereofof any Investment or Reinvestment; or
(xiit) any breakage and the transactions contemplated hereby being characterized as other expenses, if any, than debt for the purposes of the Investor or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; orCode.
Appears in 1 contract
Samples: Receivables Purchase Agreement (United Rentals Inc /De)
Indemnities by the Seller. Without limiting any other rights which the Deal Agent, the OwnerPurchaser, Citibank or CNAI the Liquidity Providers or any Affiliate thereof of their respective Affiliates may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Deal Agent, the OwnerPurchaser, Citibank and CNAI each Liquidity Provider, each of their respective Affiliates, and each Affiliate thereof of their respective directors, officers, employees, agents and attorneys (all of the foregoing being collectively referred to as "Indemnified Parties") from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), ) awarded against or actually incurred by any of them arising out of or as a result of this Agreement or the ownership of Eligible Assets or in respect of any Receivable or any Contract, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof for Indemnified Amounts relating to or resulting from:
(i) any Purchased Receivable represented or deemed represented by the creation of Seller to be an undivided percentage ownership interest in any Eligible Receivable which is not at the date of the creation of such interest an Eligible Receivable at the time such representation is made or which thereafter ceases to be an Eligible Receivabledeemed made;
(ii) reliance on any representation or warranty made or deemed made by the Seller Seller, the Servicer (if OutSource International or one of its Affiliates) or any of its officers) their respective officers under or in connection with this Agreement, the Original Agreement, any Investor Report or any other information or report delivered by the Seller pursuant hereto or to the Original Agreement, which shall have been false or incorrect in any material respect when made or deemed mademade or delivered;
(iii) the failure by the Seller or the Servicer (if OutSource International or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any of the other Facility Documents, or with any applicable law, rule or regulation with respect to any Pool Receivable Receivable, the related Contract or the related ContractRelated Security, or the nonconformity of any Pool Receivable or Receivable, the related Contract or the Related Security with any such applicable law, rule or regulation;
(iv) (A) the failure to vest and maintain vested in the Owner of an Eligible Asset an undivided Purchaser or to transfer to the Purchaser, legal and equitable title to and ownership of, a percentage ownership interest, corresponding to the extent of such Eligible AssetPurchased Interest, in the Receivables inwhich are, or purporting are purported to be inbe, Purchased Receivables, together with all Collections and Related Security; or (B) the failure to grant to the Deal Agent, for the benefit of itself and the Purchaser, a valid and perfected first priority "security interest," under Article 9 of the UCC, in and to the Receivables Poolwhich are, or are purported to be, Purchased Receivables, together with all Collections and Related Security; in each case free and clear of any Adverse Claim except for whether existing at the lien, if applicable, referred to in Section 4.01(h)time of the Purchase of any such Receivable or at any time thereafter;
(v) the failure to prevent, as of the close of business on each Business Day prior to the Termination Date, a Coverage Shortfall Event from occurring;
(vi) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables inwhich are, or purporting are purported to be inbe, the Receivables PoolPurchased Receivables, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable inwhich is, or purporting is purported to be inbe, the Receivables Pool a Purchased Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(viii) any failure of the Seller, as Collection Agent Seller or otherwise, the Servicer (if OutSource International or one of its Affiliates) to perform its duties or obligations in accordance with the provisions of Article VIthis Agreement or any failure by an Originator, the Seller or any Affiliate thereof to perform its respective duties under the Contracts;
(ix) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise, insurance merchandise or services which are the subject of any Receivable or Contract;
(x) the failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes payable in connection with the Purchased Receivables;
(xi) any repayment by the Deal Agent or the Purchaser of any amount previously distributed in reduction of Capital or payment of Yield or any other amount due hereunder, in each case which amount the Deal Agent or the Purchaser believes in good faith is required to be repaid;
(xii) the commingling of Collections of Pool Purchased Receivables at any time with other funds;
(xixiii) any investigation, litigation or proceeding related to this Agreement or the enforcement use of proceeds of Purchases or legal recognition reinvestments or the ownership of Purchased Property or in respect of any prior interest under Receivable, Related Security or Contract except any such investigation, litigation or proceeding arising from the Mortgage gross negligence or willful misconduct of the Purchaser or Deal Agent;
(xiv) any failure by the Seller to give reasonably equivalent value to each Originator in or consideration for the transfer by such Originator to the Seller of any Receivables or Related Security, or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the proceeds thereofBankruptcy Code; or
(xiixv) any breakage and other expenses, if any, the failure of the Investor Seller, any Originator or the Owner any of their respective agents or representatives (including, without limitation, attorneys' feesagents, disbursements representatives and accrued interestemployees of the Originators acting pursuant to authority granted under Section 6.01) to remit to the Servicer or the Deal Agent, Collections of interest rate swapsPurchased Receivables remitted to the Seller, collarssuch Originator or any such agent or representative. Any amounts subject to the indemnification provisions of this Section 8.01 shall be paid by the Seller to the Deal Agent within five Business Days following the Deal Agent's written demand therefor. Notwithstanding any other provision of this Agreement to the contrary, forward agreements and future contracts in connection the Seller shall not indemnify the Indemnified Parties for or with the funding or maintenance of respect to any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; orIndemnified Amounts that would constitute recourse for uncollectible Purchased Receivables due to credit reasons.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Outsource International Inc)
Indemnities by the Seller. Without limiting any other rights which the Agent, the Owner, Citibank or CNAI any Owner or any Affiliate thereof of their respective Affiliates (each an "Indemnified Party") may have hereunder or under applicable law, the Seller hereby agrees to indemnify each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Party from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), ) awarded against or incurred by any of them arising out of or as a result of this Agreement or the use of proceeds of Purchases or the ownership of Eligible Assets or in respect of any Receivable or any Contract, excluding, however, (ia) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate Indemnified Party or (iib) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting or being limited by the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof each Indemnified Party any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof such Indemnified Party for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible ReceivableReceivable (whether pursuant to Section 7.02 or otherwise);
(ii) reliance on any representation or warranty made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreementany Selling Subsidiary Letter, any Investor Seller Report or any other information or report delivered by the Seller or any Selling Subsidiary pursuant hereto or to the Original Agreementhereto, which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by the Seller or any Selling Subsidiary to comply with any applicable law, rule or regulation with respect to any Pool ` Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule or regulation;
(iv) the failure to vest in the Owner of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, in the Receivables in, or purporting to be in, the Receivables PoolPool and the Related Security and Collections in respect thereof, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h)Claim;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables PoolPool and the Related Security and Collections in respect thereof, whether at the time of any Purchase or reinvestment or at any subsequent time;
(vi) any failure by the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivables;
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(viiivii) any failure of the Seller, as Collection Agent or otherwise, or any Selling Subsidiary to perform its duties or obligations in accordance with hereunder or under the provisions of Article VISelling Subsidiary Letter or to perform its duties or obligations under the Contracts;
(ixviii) any products liability claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;; or
(ix) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Purchases or the ownership of Eligible Assets or in respect of any Receivable or any Contract; or
(x) the commingling of Collections of Pool Receivables at any time with other funds;
(xi) funds provided, that without in any way limiting the enforcement or legal recognition of any prior interest under the Mortgage in or to any Receivables or the proceeds thereof; or
(xii) any breakage and other expenses, if any, scope of the Investor or foregoing indemnity, such indemnity is not intended to restrict the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) Seller from servicing Receivables as the Collection Agent pursuant to Article VI of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; orthis Agreement.
Appears in 1 contract
Samples: Trade Receivables Purchase and Sale Agreement (Polyone Corp)
Indemnities by the Seller. (a) Without limiting any other rights which the Agent, the Owner, Citibank or CNAI or that any Affiliate thereof Indemnified Party may have hereunder or under applicable lawlaw (including, without limitation, the right to recover damages for breach of contract), the Seller hereby agrees to indemnify each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Party from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), awarded against or incurred by any of them Amounts arising out of or as a result of resulting from this Agreement or the ownership other Transaction Documents or the use of Eligible Assets proceeds of the sale of Asset Interests or the security interest granted hereunder or in respect of any Receivable or any Contract, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the Agent, the Owner, Citibank or CNAI or any such Affiliate or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible ReceivablesCollateral. Without limiting or being limited by the foregoing, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof each Indemnified Party any and all amounts necessary to indemnify the Agent, the Owner, Citibank such Indemnified Party from and CNAI against any and each Affiliate thereof for all Indemnified Amounts relating to or resulting fromfrom any of the following:
(i) the creation of an undivided percentage ownership interest characterization in any Receivable Monthly Report, Asset Interest Report or other written statement made by or on behalf of the Seller of any Pool Asset as an Eligible Asset or as included in the Net Conforming Pool Balance or the Net Non-Conforming Pool Balance which, as of the date on which such information was certified, is not at the date of the creation of such interest an Eligible Receivable Asset or which thereafter ceases to should not be an Eligible Receivableincluded in the Net Conforming Pool Balance or the Net Non-Conforming Pool Balance, as applicable;
(ii) reliance on any representation or warranty or statement made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement, the Original Agreement, any Investor Report Agreement or any of the other information or report delivered by the Seller pursuant hereto or to the Original Agreement, Transaction Documents which shall have been false or incorrect in any material respect when made or deemed made;
(iii) the failure by the Seller to comply with any applicable law, rule or regulation of any Governmental Entity with respect to any Pool Receivable Transferred Asset; or the related Contract, or the nonconformity failure of any Pool Receivable or the related Contract with Transferred Asset to conform to any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in the Owner of an Eligible Asset an undivided percentage ownership interest, to the extent of such Eligible Asset, Program Agent a first priority perfected security interest in the Receivables in, or purporting to be in, the Receivables Pool, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h)Collateral;
(v) the failure to filehave filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent timeCollateral;
(vi) any failure by dispute, claim, offset or defense (other than discharge in bankruptcy or insolvency of the Seller to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related CNB Customer) of a CNB Customer to the payment of any Pool Receivables;Asset, whether or not raised in connection with any litigation or arbitration (including, without limitation, a defense based on such Pool Asset or the related CNB Customer Transaction Document not being a legal, valid and binding obligation of such CNB Customer enforceable against it in accordance with its terms), or any other claim relating to collection activities with respect to such Pool Asset; COLONIAL BANK WAREHOUSE LOAN PURCHASE AGREEMENT
(vii) any dispute, claim, offset or defense (other than discharge in bankruptcy or insolvency of the Obligorrelated Mortgagor) of the Obligor a Mortgagor to the payment of any Receivable in, or purporting to be in, the Receivables Pool Mortgage Loan (including, without limitation, a defense based on such Receivable or the related Contract Mortgage Loan not being a legal, valid and binding obligation of such Obligor Mortgagor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related relating to collection activities with respect to such Receivable or the furnishing or failure to furnish such merchandise or servicesMortgage Loan;
(viii) any failure of the SellerSeller to comply with any term, as Collection Agent provision or otherwisecovenant contained in this Agreement or any other Transaction Document to which it is a party, or to perform its duties or obligations in accordance with under the provisions of Article VICNB Customer Transaction Documents;
(ix) any products liability claim or suit arising out of or in connection with merchandise, insurance any Pool Asset or services which are the subject of any ContractMortgage Loan related thereto;
(x) the commingling of Collections of Pool Receivables Assets (or any Related Security) at any time with other funds;
(xi) any investigation, litigation or proceeding related to this Agreement, any other Transaction Document or the enforcement use of proceeds of Asset Interests or legal recognition in respect of any prior interest under the Mortgage in Pool Asset or to any Receivables or the proceeds thereof; orCollateral;
(xii) any breakage claim brought by any Person other than an Indemnified Party arising from any activity by the Seller in servicing, administering or collecting any Pool Asset;
(xiii) the sale by the Originator, or the purchase by the Seller, of any Pool Asset in violation of any applicable law, rule or regulation of any Governmental Entity or any contractual obligation of the Originator;
(xiv) any Adverse Claim attaching to any Pool Asset or any Collateral with respect thereto, other than a Lien created under the Transaction Documents;
(xv) except to the extent such taxes constitute income taxes incurred by such Indemnified Party arising out of or as a result of this Agreement or the security interest in the Collateral, (A) the failure to pay when due any and all stamp, sales, transfer, excise, personal property and other taxes and fees payable by the Seller or the Originator in connection with the Collateral or the execution, delivery, filing and recording of this Agreement or the other agreements and documents to be delivered hereunder (including any UCC financing statements) and (B) the payment by such Indemnified Party of taxes, including, without limitation, any taxes imposed by any jurisdiction on amounts payable and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, if anyto the extent caused by the Seller’s actions or failure to act in breach of this Agreement;
(xvi) any failure by the Seller to give reasonably equivalent value to the Originator in consideration for the transfer by the Originator to the Seller of any Transferred Assets, or any attempt by any Person to void any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Investor Bankruptcy Code; COLONIAL BANK WAREHOUSE LOAN PURCHASE AGREEMENT
(xvii) the inability of any Agent, the Conduit Purchasers or the Owner Committed Purchasers to exercise their rights under this Agreement to review any CNB Customer Loan Agreement which contains a confidentiality provision that purports to restrict its ability to do so, or any litigation or proceeding relating to any such confidentiality provision;
(xviii) the failure of any Mortgage Loan to be purchased (A) under the original Take-Out Commitment applicable to such Mortgage Loan for any reason (other than as a result of a Mortgage Loan which was an Eligible Mortgage Loan at the time it was sold by the Originator to the Seller having subsequently become a Defaulted Mortgage Loan or as the result of the bankruptcy of the related CNB Customer) including as a result of a change in the market value of such Mortgage Loan due to changes in interest rates, and (B) for an amount equal to the Take-Out Price first reported to the Program Agent when the Asset related to such Mortgage Loan first became a Pool Asset;
(xix) the failure of any Interest Rate Hedge to fully protect any Mortgage Loan, AOT Mortgage Pool or AOT Security from the effect of changes in interest rates;
(xx) the possession of the Mortgage Documents by any person other than the Facility Custodian;
(xxi) the failure of any Mortgaged Property to be covered by adequate hazard insurance;
(xxii) the failure of any Mortgage Loan, any AOT Security or any Take-Out Commitment to constitute, for any reason (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with any fraud on the funding or maintenance part of any Eligible Asset Mortgagor of any Mortgage Loan, any CNB Customer or the Originator), the legal, valid and binding obligation of the costs Mortgagor of such Mortgage Loan, the issuer of such AOT Security, or Investor, as applicable, enforceable against such Mortgagor, issuer or Investor in accordance with its terms (subject to Enforceability Exceptions);
(xxiii) the failure of any Mortgage Document with respect to any Mortgage Loan (including, without limitation, the related Mortgage File) to be accurate and expenses specifically set forth complete;
(xxiv) the failure of any AOT Security to be issued with respect to any AOT Mortgage Pool for any reason (other than as a result of the bankruptcy of the related CNB Customer) including as a result of a change in the definition market value of Fixed Ratesuch AOT Mortgage Pool due to changes in interest rates;
(xxv) the failure of any AOT Security to be purchased (A) under the original Mandatory Take-Out Commitment applicable to such AOT Security for any reason (other than as a result of the bankruptcy of the related CNB Customer) including as a result of a change in the market value of such AOT Security or the related AOT Mortgage Pool due to changes in interest rates, and (B) for an amount equal to the Take-Out Price first reported to the Program Agent when a participation interest in the AOT Mortgage Pool with respect to such AOT Security first became a Pool Asset; orand COLONIAL BANK WAREHOUSE LOAN PURCHASE AGREEMENT
(xxvi) the release of funds from any CNB Customer Deposit Account or AOT Securities Account to any CNB Customer which is the subject of any bankruptcy or insolvency proceeding, absent a court order directing that such funds be released to such CNB Customer.
(b) Notwithstanding the foregoing, the Seller shall not be liable to any Indemnified Party for any Indemnified Amounts, (i) to the extent found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from gross negligence or willful misconduct on the part of such Indemnified Party, (ii) resulting from a default by the Mortgagor under the terms of any Mortgage Loan which was an Eligible Mortgage Loan at the time it was sold by the Originator to the Seller, (iii) resulting from the failure of any CNB Customer to pay amounts due under the terms of any CNB Customer Loan or from the impairment of any Underlying Collateral, in each case as a result of the bankruptcy of such CNB Customer, (iv) resulting from the failure of any Mortgage Loan to be purchased under a Take-Out Commitment due to a default by the Mortgagor thereof under the terms of such Mortgage Loan which was an Eligible Mortgage Loan at the time it was sold by the Originator to the Seller or the bankruptcy of the related CNB Customer, or (v) constituting taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party.
(c) Any amounts subject to the indemnification provisions of this Section 10.01 shall be paid by the Seller to the related Indemnified Party within five Business Days following demand therefor accompanied by reasonable supporting documentation with respect to such amounts. Notwithstanding anything to the contrary in this Agreement, solely for purposes of this Section 10.01, any representation, warranty or covenant qualified by materiality or the occurrence of a Material Adverse Effect shall not be so qualified.
Appears in 1 contract
Samples: Warehouse Loan Purchase Agreement (Colonial Bancgroup Inc)
Indemnities by the Seller. Without limiting any other rights which the Agent, the Owner, Citibank or CNAI or any Affiliate thereof Person may have hereunder or under applicable law, the Seller hereby agrees to indemnify indemnifies and holds harmless, on an after-Tax basis, each of the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Party from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts"), awarded against Losses at any time imposed on or incurred by any of them Indemnified Party arising out of or as a result otherwise relating to any Transaction Document, the transactions contemplated thereby or any action taken or omitted by any of this Agreement the Indemnified Parties (including any action taken by the Administrative Agent or the ownership Co-Collateral Agents as attorney-in-fact for the Seller pursuant to Section 3.5(b)), whether arising by reason of Eligible Assets the acts to be performed by the Seller hereunder or in respect of any Receivable or any Contractotherwise, excluding, however, (i) excluding only Indemnified Amounts Losses to the extent resulting (x) a final judgment of a court of competent jurisdiction holds such Indemnified Losses resulted solely from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification, (y) solely due to the credit risk of the Obligor and for which reimbursement would constitute recourse to the Seller or the Collection Agent for uncollectible Receivables or (z) such Indemnified Losses include Taxes on, or measured by, the overall net income of the Administrative Agent, the Owner, Citibank or CNAI Co-Collateral Agents or any such Affiliate or (ii) recourse (except as otherwise specifically provided Purchaser computed in this Agreement) for uncollectible Receivablesaccordance with the Intended Tax Characterization. Without limiting the foregoingforegoing indemnification, but subject to the limitations set forth in clauses (x), (y) and (z) of the previous sentence, the Seller shall pay on demand to the Agent, the Owner, Citibank or CNAI or any Affiliate thereof any and all amounts necessary to indemnify the Agent, the Owner, Citibank and CNAI and each Affiliate thereof Indemnified Party for Indemnified Amounts Losses relating to or resulting from:
(ia) the creation of an undivided percentage ownership interest in any Receivable which is not at the date of the creation of such interest an Eligible Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made by the Seller Seller, any other Swift Entity or Affiliate thereof or the Collection Agent, if it is a Swift Entity, (or any employee or agent of its officersthe Seller, any Swift Entity or the Collection Agent) under or in connection with this Agreement, the Original Agreement, any Investor Periodic Report or any other information or report delivered by the Seller Seller, any other Swift Entity or Affiliate thereof or the Collection Agent, if it is a Swift Entity, pursuant hereto or to the Original Agreementhereto, which shall have been false or incorrect in any material respect when made or deemed made;
(iiib) the failure by the Seller Seller, any other Swift Entity or Affiliate thereof, or the Collection Agent, if it is a Swift Entity, to comply with any applicable law, rule or regulation with respect related to any Pool Receivable or the related ContractRelated Security, or the nonconformity of any Pool Receivable or the related Contract Related Security with any such applicable law, rule or regulationregulation or the failure by the Seller to satisfy any of its obligations under any Transaction Documents;
(ivc) the failure of the Seller to vest and maintain vested in the Owner Administrative Agent, for the benefit of an Eligible Asset an undivided percentage itself, the Co-Collateral Agents and the Purchasers, a perfected ownership interest, to the extent of such Eligible Asset, or security interest in the Receivables in, or purporting Sold Interest and the property conveyed pursuant to be in, the Receivables PoolSection 1.1(e) and Section 1.8, free and clear of any Adverse Claim except for the lien, if applicable, referred to in Section 4.01(h)Lien;
(vd) any commingling of funds (whether or not permitted pursuant to the failure terms of the Transaction Documents) to filewhich the Co-Collateral Agents, the Administrative Agent or any delay in filing, financing statements or Purchaser is entitled hereunder with any other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or reinvestment or at any subsequent timefunds;
(vie) any failure by the Seller of a Lock-Box Bank to timely and duly perform and comply with all material provisions, covenants and other promises required to be observed by it under any Contract related to the Pool Receivablesterms of the applicable Lock-Box Letter;
(viif) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms)Receivable, or any other claim resulting from the sale rendering of the merchandise or services related to such Receivable or the furnishing or failure to furnish any such merchandise services or servicesother similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(viiig) any failure of the Seller, as Collection Agent Seller or otherwise, any Swift Entity to perform its duties or obligations in accordance with the provisions of Article VIthis Agreement or any other Transaction Document to which such Person is a party (as a Collection Agent or otherwise);
(ixh) any products liability action taken by the Administrative Agent as attorney-in-fact for the Seller pursuant to Section 3.5(b);
(i) any environmental liability, product liability, personal injury, copyright infringement, theft of services, property damage, or other breach of contract, antitrust, unfair trade practices or tortious claim or other similar or related claim or action of whatever sort, arising out of or in connection with merchandiseany Receivable or any other suit, insurance claim or services which are action of whatever sort relating to any of the subject of any ContractTransaction Documents;
(xj) any Receivable which is stated to be, but is not as of the commingling of Collections of Pool Receivables at any time with other fundsapplicable Purchase Date, an Eligible Receivable;
(xik) the enforcement failure of the Seller to have filed, or legal recognition any delay by the Seller in filing, financing statements or other similar instruments or documents under the UCC of any prior interest under the Mortgage in applicable jurisdiction or other applicable laws with respect to any Receivables Receivable and the Related Security and Collections in respect thereof, whether at the time of any Purchase or reinvestment or at any subsequent time unless such failure results directly and solely from the Administrative Agent’s failure to take appropriate action;
(l) any action or omission by the Seller reducing or impairing the rights of any Purchaser of a Purchase Interest under this Agreement, any other Transaction Document or any other instrument or document furnished pursuant hereto or thereto or with respect to any Receivable;
(m) any cancellation or modification of a Receivable, the related contract or any Related Security, whether by written agreement, verbal agreement, acquiescence or otherwise, unless such cancellation or modification was made by or with the express consent of the Administrative Agent or a Collection Agent that is not an Originator or an Affiliate of an Originator;
(n) any investigation, litigation (other than any litigation between the Seller and an Indemnified Party in which the Seller is the prevailing party) or proceeding related to or arising from this Agreement, any other Transaction Document or any other instrument or document furnished pursuant hereto or thereto, or any transaction contemplated by this Agreement or the use of proceeds thereoffrom any Purchase or reinvestment pursuant to this Agreement, or the ownership of, or other interest in, any Receivable, the related contract or Related Security;
(o) any failure by the Seller to pay when due any Taxes, including without limitation sales, excise or personal property taxes, payable by the Seller in connection with any Receivable or the related contract or any Related Security with respect thereto;
(p) any claim brought by any Person other than an Indemnified Party arising from any activity of the Seller in servicing, administering or collecting any Receivable; or
(xiiq) any breakage and other expenses, if any, the use of the Investor proceeds of the sales under this Agreement or the Owner (including, without limitation, attorneys' fees, disbursements and accrued interest) of interest rate swaps, collars, forward agreements and future contracts in connection with the funding or maintenance of any Eligible Asset and the costs and expenses specifically set forth in the definition of Fixed Rate; orPurchase Agreement.
Appears in 1 contract
