Indemnities by the Seller. Without limiting any other rights that the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, to indemnify each Indemnified Party from and against any and all claims, damages, expenses, losses and liabilities (including legal costs) arising out of, relating to or resulting from any of the following (all of the foregoing being collectively referred to as “Indemnified Amounts”): (a) subject to Section 2.3 hereof, the failure of any Purchased Loan to meet the Eligibility Criteria as of the date of the initial purchase or its Purchase Date, as the case may be; (b) subject to Section 2.3 hereof, the failure of 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 or any other Purchase Document to have been true and correct when made; (c) the failure by the Seller to comply with any applicable law, rule or regulation with respect to the servicing, administration, enforcement or other dealing with any Purchased Loans; or the failure of any Purchased Loans to conform to any such applicable law, rule or regulation; (d) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security Interest; (e) the failure to have registered or filed in accordance with the provisions hereof, or any delay in so doing, Financing Statements, Registrable Transfers or other similar instruments or documents under any applicable laws of any applicable jurisdiction with respect to the Purchased Assets or any part thereof, whether at the time of any purchase or at any subsequent time; (f) any failure of the Seller to perform its covenants, duties or obligations in accordance with the provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under the Purchased Loans; (g) any failure by the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part of such Indemnified Party.
Appears in 2 contracts
Samples: Subservicing Agreement, Hypothecary Loan Sale Agreement
Indemnities by the Seller. Without limiting any other rights that the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, to indemnify each Indemnified Party from and against any and all claims, damages, expenses, losses and liabilities (including legal costs) arising out of, relating to or resulting from any of the following (all of the foregoing being collectively referred to as “Indemnified Amounts”):
(a) subject to Section 2.3 hereof, the failure of any Purchased Loan to meet the Eligibility Criteria be an Eligible Loan as of the date of the initial purchase or its Purchase Date, as the case may be;
(b) subject to Section 2.3 hereof, the failure of 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 or any other Purchase Document to have been true and correct when made;
(c) the failure by the Seller to comply with any applicable law, rule or regulation with respect to the servicing, administration, enforcement or other dealing with any Purchased Loans; or the failure of any Purchased Loans to conform to any such applicable law, rule or regulation;
(d) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and priority perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security Interest;
(e) the failure to have registered or filed in accordance with the provisions hereoffiled, or any delay in so doingfiling, Financing Statements, Registrable Transfers or other similar instruments or documents under any applicable laws of any applicable jurisdiction with respect to the Purchased Assets or any part thereof, whether at the time of any purchase or at any subsequent time;
(f) any failure of the Seller to perform its covenants, duties or obligations in accordance with the provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under the Purchased Loans;
(g) any failure by the Seller or its assignee to repurchase any Purchased Loan pursuant to any of Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, ; relating to or resulting from, any of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part of such Indemnified Party.
Appears in 2 contracts
Samples: Mortgage Sale Agreement (RBC Covered Bond Guarantor Limited Partnership), Mortgage Sale Agreement (RBC Covered Bond Guarantor Limited Partnership)
Indemnities by the Seller. Without limiting any other rights that which the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) Buyer may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify each the Buyer and its assigns and transferees (each, an "Indemnified Party Party") from and against any and all damages, claims, damageslosses, liabilities and related costs and expenses, losses including attorneys' fees and liabilities (including legal costs) arising out of, relating to or resulting from any of the following disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”):"), awarded against or incurred by any Indemnified Party arising out of or as a result of this Agreement or the purchase of any Transferred Mortgage Assets or in respect of any Transferred Mortgage Asset or any related Mortgage Loan Collateral, including, without limitation, arising out of or as a result of:
(a) subject to Section 2.3 hereofthe inclusion, the failure or purported inclusion, in any Purchase of any Purchased Loan to meet Mortgage Asset that is not an Eligible Mortgage Asset on the Eligibility Criteria date of such Purchase, or the characterization in any statement made by the Seller of any Transferred Mortgage Asset as an Eligible Mortgage Asset which is not an Eligible Mortgage Asset as of the date of the initial purchase or its Purchase Date, as the case may besuch statement;
(b) subject to Section 2.3 hereof, the failure of 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 or any other Purchase Document to Agreement, which shall have been true and correct incorrect when made;
(c) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Transferred Mortgage Asset or the servicingrelated Mortgage Loan Collateral, administration, enforcement or other dealing with any Purchased Loans; or the failure of any Purchased Loans Transferred Mortgage Asset or the related Mortgage Loan Collateral to conform to any such applicable law, rule or regulation;
(d) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested inthe Buyer absolute ownership of the Mortgage Assets that are, or that purport to be, the Purchaser subject of a valid Purchase under this Agreement and enforceable first prioritythe Mortgage Loan Collateral and Collections in respect thereof, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security InterestClaim;
(e) the failure of the Seller to have registered or filed in accordance with the provisions hereoffiled, or any delay in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any applicable laws the UCC of any applicable jurisdiction or other applicable laws with respect to any Mortgage Assets that are, or that purport to be, the Purchased Assets or any part subject of a Purchase under this Agreement and the Mortgage Loan Collateral and Collections in respect thereof, whether at the time of any purchase Purchase or at any subsequent time;
(f) any claim by any Obligor arising out of the Seller's activities in connection with originating or purchasing any Transferred Mortgage Asset or any offset by any Obligor against the Seller arising out of acts by the Seller;
(g) any failure of the Seller, as Seller or Servicer, to perform its covenants, duties or obligations in accordance with the provisions hereof or to perform its duties or obligations under any Mortgage Loan Collateral related to a Transferred Mortgage Asset;
(h) the commingling of Collections of Transferred Mortgage Assets by the Seller or a designee of the Seller, as Servicer or otherwise, at any time with other funds of the Seller or an Affiliate of the Seller;
(i) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Purchases or the ownership of Transferred Mortgage Assets or the Mortgage Loan Collateral or Collections with respect thereto or in respect of any Transferred Mortgage Asset or related Mortgage Loan Collateral;
(j) any failure of the Seller to comply with its covenants contained in Section 5.01; or
(k) 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 servicing, administering or collecting any Transferred Mortgage Asset. 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 Mortgage Assets and (ii) that nothing in this Section 8.01 shall require Seller to indemnify any Person (A) for Mortgage Assets 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 other Purchase Document Transferred Mortgage Asset or to perform its covenants, duties or obligations under the Purchased Loans;
(g) any failure by the Seller or its assignee to repurchase any Purchased related Mortgage Loan pursuant to Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part of such Indemnified PartyCollateral.
Appears in 2 contracts
Samples: Master Repurchase Agreement (Pulte Homes Inc/Mi/), Master Repurchase Agreement (Pulte Homes Inc/Mi/)
Indemnities by the Seller. (a) Without limiting any other rights that the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify each (and pay upon demand to) the Purchaser and its officers, directors, agents and employees (each, an “Indemnified Party Party”) from and against any and all damages, losses, claims, damagestaxes, expensesliabilities, losses costs, expenses and liabilities for all other amounts payable, including reasonable attorneys’fees (including legal costs) arising out of, relating to or resulting from any which attorneys may be employees of the following 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 by reason of (ai) subject the Seller’s failure to Section 2.3 hereofperform any of its duties, covenants or other obligations in accordance with the failure provisions of any Purchased Loan to meet the Eligibility Criteria as of the date of the initial purchase or its Purchase Datethis Agreement, as the case may be;
(bii) subject to Section 2.3 hereof, the failure of any representation or warranty or statement made or deemed made by the Seller (or any officers of its officers), the Seller) under or in connection with this Agreement or any other Purchase Document to written information or report delivered by the Seller pursuant hereto or thereto, which shall have been true false or incorrect when made or deemed made, (iii) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with any Motorcycle or other merchandise, insurance or services provided by the Seller or any of its Affiliates and correct when made;that are the subject of any Contract Asset, (iv) any taxes that may at any time be asserted against any Indemnified Party as a result of or relating to the sale contemplated herein, including any sales, gross receipts in respect of the Contracts, gross margin, general corporation, tangible personal property, Illinois personal property replacement privilege or license taxes and costs, expenses and reasonable counsel fees in defending against the same, whether arising by reason of the acts to be performed by the Seller under this Agreement or imposed against the Purchaser or otherwise, or (v) any Contract being determined to not constitute an Eligible Contract as of the applicable Purchase Date, including without limitation, Indemnified Amounts based on or resulting from:
(ci) the failure by the Seller to comply with any applicable law, rule or regulation with respect to the servicingany Contract Asset related thereto, administration, enforcement or other dealing with any Purchased Loans; or the failure nonconformity of any Purchased Loans to conform to Contract Asset with any such applicable law, rule or regulationregulation or any failure of the Seller to keep or perform any of its obligations, express or implied, with respect to any Contract;
(dii) any dispute, claim, offset or defense of the Obligor (other than discharge or stay in bankruptcy of the Obligor) to the payment of any Contract (including, without limitation, a defense based on such Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the Motorcycle or other merchandise or service provided by the Seller or any of its Affiliates and related to such Contract Asset or the furnishing or failure to furnish such merchandise or services;
(iii) the commingling of Contract Assets with other funds of the Seller;
(iv) any investigation, litigation or proceeding related to or arising from this Agreement, the transactions contemplated hereby, the use of the proceeds of the purchase hereunder, the ownership of the Contract Assets or any other investigation, litigation or proceeding relating to the Seller in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(v) any inability to litigate any claim against any Obligor in respect of any Contract Asset as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty from any legal action, suit or proceeding;
(vi) any failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested inin the Purchaser, or to transfer to the Purchaser, legal and equitable title to, and ownership of, the Purchaser a valid and enforceable first priorityContract Assets, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security InterestClaim;
(evii) the failure to have registered or filed in accordance with the provisions hereoffiled, or any delay in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any applicable laws the UCC of any applicable jurisdiction or other applicable laws with respect to the Purchased Assets or Contract Assets, and the proceeds of any part thereofthereof in accordance with this Agreement, whether at the time of any the purchase or at any subsequent time;
(fviii) with respect to any Contract, (x) any failure of action by the Seller to perform its covenantsSeller, duties or obligations in accordance with the provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under the Purchased Loans;
(gy) any failure by the Seller to take any action required by law or (z) any failure by the Seller to take any action necessary to eliminate the appearance of the Seller being the owner of or having rights in such Contract, which action or failure reduces or impairs the rights of the Purchaser with respect to such Contract or the value of such Contract; and
(ix) any attempt by the Seller or any of its assignee Affiliates to repurchase any Purchased Loan pursuant void the purchase hereunder under statutory provisions or common law or equitable action.
(b) Notwithstanding anything to the contrary contained in Section 2.37.01(a), and the Seller shall pay on demand have no obligation to indemnify (without duplicationand shall not indemnify) to each any Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any of the foregoing provided, however, that the foregoing obligation of indemnification shall not include for:
(i) Indemnified Amounts to the extent resulting that such Indemnified Amounts resulted from gross negligence or wilful willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Contract Assets that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor, or diminution in the value of the Contract Assets other than as a result of the acts or omissions of the Seller, in each case at any time following the Purchase Date related thereto; or
(iii) Franchise taxes imposed upon any Indemnified Party or taxes imposed by the federal government or jurisdiction in which such Indemnified Party’s principal executive office is located, on or measured by the overall net income of such Indemnified Party.
Appears in 2 contracts
Samples: Receivables Sale Agreement (Harley Davidson Inc), Receivables Sale Agreement (Harley Davidson Inc)
Indemnities by the Seller. (a) Without limiting any other rights that which the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify each the Purchaser and its assigns and transferees (each, an "Indemnified Party Party"), from and against any and all damages, claims, damageslosses, liabilities and related costs and expenses, losses including reasonable attorneys' fees and liabilities (including legal costs) arising out of, relating to or resulting from any of the following disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”):"), awarded against or incurred by any Indemnified Party arising out of or as a result of any of the following:
(ai) subject the characterization (A) in any Borrower Report, Weekly Report, Daily Report or (B) for the purpose of inclusion of a Transferred Receivable in the Net Receivables Pool Balance in any other written statement made by the Seller to Section 2.3 hereofthe Program Agent, the failure of any Purchased Loan to meet the Eligibility Criteria Transferred Receivable as an Eligible Receivable which is not an Eligible Receivable as of the date of the initial purchase or its Purchase Date, as the case may beon which such information was certified;
(bii) subject to Section 2.3 hereof, the failure of 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 or any other Purchase Document to Transaction Document, which shall have been true and correct incorrect in any respect when made or deemed made;
(ciii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Transferred Asset or the servicing, administration, enforcement or other dealing with any Purchased Loansrelated Contract; or the failure of any Purchased Loans Transferred Asset or the related Contract to conform to any such applicable law, rule or regulation;
(div) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested inin the Purchaser absolute ownership of the Transferred Assets that are, or that purport to be, the Purchaser subject of a valid and enforceable first priorityPurchase under this Agreement, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim Claim;
(v) any dispute, claim, offset or defense (other than a Permitted Security Interest or Adverse Claim granted by or discharge in favour bankruptcy of the PurchaserObligor) of the Obligor to the payment of any Receivable that is, or that purports to be, the subject of a Purchase under this Agreement from the Seller (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 by any Governmental Authority that any part resulting from the sale of the Purchased Assets consisting of amounts payable by goods or services related to such Receivable or the related Borrowers constitute the property of furnishing or are otherwise subject failure to the ownership, control furnish such goods or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security Interestservices;
(e) the failure to have registered or filed in accordance with the provisions hereof, or any delay in so doing, Financing Statements, Registrable Transfers or other similar instruments or documents under any applicable laws of any applicable jurisdiction with respect to the Purchased Assets or any part thereof, whether at the time of any purchase or at any subsequent time;
(fvi) any failure of the Seller to perform its covenantscomply with any term, duties provision or obligations covenant contained in accordance with the provisions of this Agreement or any other Purchase Transaction Document to which it is a party or to perform its covenants, duties or obligations under the Purchased Loansany Contract related to a Transferred Receivable;
(gvii) any products liability or other claim arising out of or in connection with goods or services which are the subject of any Contract related to a Transferred Receivable originated by the Seller;
(viii) the commingling of Collections of Transferred Assets by the Seller (or a designee of the Seller), as Servicer or otherwise, at any time with other funds;
(ix) any investigation, litigation or proceeding related to this Agreement or any other Transaction Document to which the Seller is a party or the use of proceeds of Purchases by the Seller or in respect of any Transferred Asset with respect thereto;
(x) any claim brought by any Person other than an Indemnified Party arising from any activity the Seller or any designee of the Seller in servicing, administering or collecting any Transferred Asset;
(xi) the sale by the Seller of any Receivable Asset in violation of any applicable law, rule or regulation;
(xii) any Adverse Claim attaching to any Transferred Asset or any Seller Collateral with respect thereto, except a Lien created under the Transaction Documents;
(xiii) the failure to pay when due any and all Other Taxes and the payment by such Indemnified Party of Taxes;
(xiv) any failure by the Purchaser to give reasonably equivalent value to the Seller in consideration for the transfer by the Seller to the Purchaser of any Transferred Assets, or its assignee any attempt by any Person to repurchase void any Purchased Loan Purchases under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code;
(xv) the failure of any Lockbox processor or Deposit Bank to remit any amounts or items of payment held in a Lockbox or Deposit Account pursuant to Section 2.3the instructions of the Program Agent given in accordance with the Financing Agreement, the applicable Deposit Account Agreement or the other Transaction Documents, whether by reason of the exercise of setoff rights or otherwise;
(xvi) the failure of the Seller to furnish accurate and complete documentation (including, without limitation, a Contract or invoice) to any Obligor; and (xvii) any Transferred Receivable becoming (in whole or in part) a Diluted Receivable.
(b) It is expressly agreed and understood by the parties hereto (i) that the foregoing indemnification is not intended to, and shall not, constitute a guarantee of the collectibility or payment of the Transferred Assets and (ii) that nothing in this Section 6.01 shall require the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out ofPerson (A) for Transferred Receivables which are not collected, relating to not paid or resulting from, any uncollectible on account of the foregoing providedinsolvency, bankruptcy, or financial inability to pay of the applicable Obligor or (B) for damages, losses, claims or liabilities or related costs or expenses to the extent found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from such Person's gross negligence or willful misconduct. In no event, however, that shall the foregoing obligation Seller be liable for punitive damages other than arising from a third party claim.
(c) Any amounts subject to the indemnification provisions of indemnification this Section 6.01 shall be paid by the Seller to the related Indemnified Party within five (5) Business Days following demand therefor accompanied by reasonable supporting documentation with respect to such amounts. Notwithstanding anything to the contrary in this Agreement, solely for purposes of this Section 6.01, any representation, warranty or covenant qualified by materiality or the occurrence of a Material Adverse Effect shall not include be so qualified.
(d) No Indemnified Amounts Party shall have any liability (whether in contract, tort or otherwise) to the Seller or any of their security holders or creditors for or in connection with the transactions contemplated hereby, except to the extent resulting such liability is determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnified Party's gross negligence or wilful willful misconduct or breach of its obligations under the Financing Agreement. In no event, however, shall any Indemnified Party be liable on the part any theory of such Indemnified Partyliability for any special, indirect, consequential or punitive damages (including, without limitation, any loss of profits, business or anticipated savings).
Appears in 1 contract
Samples: Secondary Purchase Agreement (Hayes Lemmerz International Inc)
Indemnities by the Seller. Without limiting any other rights that the Purchaser Administrator, the Purchasers, the Liquidity Providers, any other Program Support Provider or any of its their respective Affiliates, employees, officers, directors, agents, counsel, successors, transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable law, rules or regulations, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify each Indemnified Party from and against any and all claims, damages, expenses, losses costs, losses, liabilities and liabilities penalties (including legal costsAttorney Costs) arising out of, relating to or resulting from any of the following (all of the foregoing being collectively referred to as “Indemnified Amounts”):
) arising out of or resulting from this Agreement (whether directly or indirectly), the use of proceeds of purchases or reinvestments, the ownership of the Purchased Interest, or any interest therein, or in respect of any Receivable, Related Security or Contract, excluding, however: (a) subject Indemnified Amounts to Section 2.3 hereof, the failure extent resulting from gross negligence or willful misconduct on the part of any Purchased Loan to meet the Eligibility Criteria as of the date of the initial purchase such Indemnified Party or its Purchase Dateemployees, as the case may be;
officers, directors, agents or counsel, (b) subject any indemnification which has the effect of recourse for the non-payment of the Receivables to any indemnitor (except as otherwise specifically provided under Section 2.3 hereof, the failure of any representation or warranty or statement made or deemed made by the Seller (or any of its officers1.4(e) and this Section 3.1), under or in connection with this Agreement or any other Purchase Document to have been true and correct when made;
(c) the failure overall net income taxes or franchise taxes imposed on such Indemnified Party by the Seller to comply with jurisdiction under the laws of which such Indemnified Party is organized or any applicable lawpolitical subdivision thereof, rule or regulation with respect to in which its principal office is located or in which it is otherwise doing, or has done, business (unless it is doing business, or has done business, solely as a result of such Indemnified Party entering into, receiving any payment under, or enforcing its rights pursuant to, this Agreement). Without limiting or being limited by the servicing, administration, enforcement or other dealing with any Purchased Loans; or the failure of any Purchased Loans to conform to any such applicable law, rule or regulation;
(d) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership inforegoing, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownershipexclusions set forth in the preceding sentence, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security Interest;
(e) the failure to have registered or filed in accordance with the provisions hereof, or any delay in so doing, Financing Statements, Registrable Transfers or other similar instruments or documents under any applicable laws of any applicable jurisdiction with respect to the Purchased Assets or any part thereof, whether at the time of any purchase or at any subsequent time;
(f) any failure of the Seller to perform its covenants, duties or obligations in accordance with the provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under the Purchased Loans;
(g) any failure by the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and the Seller shall pay on demand (without duplicationwhich demand shall be accompanied by documentation of the Indemnified Amounts, in reasonable detail) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, from any of the foregoing providedfollowing:
(i) the failure of any Receivable included in the calculation of the Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable, howeverthe failure of any information contained in an Information Package to be true and correct, that or the foregoing obligation failure of indemnification shall not include Indemnified Amounts any other information provided to any Purchaser or the Administrator with respect to Receivables or this Agreement to be true and correct,
(ii) the failure of any representation, warranty or statement made or deemed made by the Seller (or any of its officers) under or in connection with this Agreement or any other Transaction Document to have been true and correct as of the date made or deemed made in all respects when 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 failure of any Pool Receivable or the related Contract to conform to any such applicable law, rule or regulation,
(iv) the failure to vest and maintain vested in the Administrator (on behalf of the Purchasers) a valid and enforceable: (i) perfected undivided variable percentage ownership interest, to the extent of the Purchased Interest, in the Receivables in, or purporting to be in, the Receivables Pool and the other Pool Assets, or (ii) first priority perfected security interest in the Pool Assets, in each case, free and clear of any Adverse Claim,
(v) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool and the other Pool Assets, whether at the time of any purchase or reinvestment or at any subsequent time,
(vi) 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 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 gross negligence the sale of the goods or wilful misconduct on services related to such Receivable or the part furnishing or failure to furnish such goods or services 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),
(vii) any failure of the Seller (or any of its Affiliates acting as the Servicer) to perform its duties or obligations in accordance with the provisions hereof or under the Contracts,
(viii) any environmental, products liability or other claim, investigation, litigation or proceeding arising out of or in connection with merchandise, insurance or services that are the subject of any Contract,
(ix) the commingling of Collections at any time with other funds (except as contemplated by Section 2(k) of Exhibit IV to the Agreement),
(x) the use of proceeds of purchases or reinvestments or the issuance of any Letter of Credit by the Seller or Servicer,
(xi) any failure of a Lock-Box Bank to comply with the terms of a related Lock-Box Agreement, or
(xii) any reduction in Capital as a result of the distribution of Collections pursuant to Section 1.4(d), if all or a portion of such Indemnified Partydistributions shall thereafter be rescinded or otherwise must be returned for any reason.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Kansas City Power & Light Co)
Indemnities by the Seller. Without limiting any other rights that the Purchaser Administrative Agent or the Purchasers or any of its AffiliatesAffiliate thereof and their respective officers, employeesdirectors, agents, successors, transferees or assigns employees and agents (each, an “"Indemnified Party”") may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify each Indemnified Party from and against any and all claims, damages, expenses, losses and liabilities (including legal costsreasonable attorneys fees and expenses) arising out of, relating to or resulting from any of the following (all of the foregoing being collectively referred to as “as. "Indemnified Amounts”):
") arising out of or resulting from this Agreement or the use of proceeds of purchases or reinvestments or the ownership of Receivable Interests or in respect of any Receivable or any Contract, excluding, however, (a) subject Indemnified Amounts to Section 2.3 hereofthe extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, the failure of any Purchased Loan to meet the Eligibility Criteria as of the date of the initial purchase or its Purchase Date, as the case may be;
(b) subject to Section 2.3 hereof, the failure of any representation recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables or warranty or statement made or deemed made by the Seller (or any of its officers), under or in connection with this Agreement or any other Purchase Document to have been true and correct when made;
(c) the failure by the Seller to comply with any applicable law, rule or regulation with respect to the servicing, administration, enforcement or other dealing with any Purchased Loans; or the failure of any Purchased Loans to conform to any such applicable law, rule or regulation;
(d) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitationexcept as set forth below, any claim income taxes incurred by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property such Indemnified Party arising out of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than as a Permitted Security Interest;
(e) the failure to have registered or filed in accordance with the provisions hereof, or any delay in so doing, Financing Statements, Registrable Transfers or other similar instruments or documents under any applicable laws of any applicable jurisdiction with respect to the Purchased Assets or any part thereof, whether at the time of any purchase or at any subsequent time;
(f) any failure of the Seller to perform its covenants, duties or obligations in accordance with the provisions result of this Agreement or the ownership of Receivable Interests or in respect of any other Purchase Document Receivable or to perform its covenantsany Contract. Without limitation of the generality of the foregoing, duties or obligations under the Purchased Loans;
(g) any failure by the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, from any of the foregoing providedfollowing:
(i) the creation of a Receivable Interest in any Pool Receivable which is not at the date of the creation of such Receivable Interest an Eligible Receivable;
(ii) reliance on any representation or warranty made or deemed made by the Seller or any Seller Subsidiary (or any of their respective Responsible Officers) or any statement made by any Responsible Officer of the Seller or any Seller Subsidiary under or in connection with this Agreement which shall have been incorrect in any material respect when made;
(iii) the failure by the Seller or any Seller Subsidiary to comply with any applicable law, howeverrule or regulation;
(iv) the failure to vest in a Purchaser an undivided percentage ownership interest, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent of such Purchaser's Receivable Interest, in the Receivables (including, without limitation, Receivables of Government Obligors and Foreign Obligors) in, or purporting to be in, the Receivables Pool and the Related Security and Collections in respect thereof, free and clear of any Adverse Claim other than as authorized hereunder;
(v) the failure to vest in the Seller all right, title and interest in the Receivables purchased by the Seller from any Seller Subsidiary pursuant to a Transfer Agreement, free and clear of any. Adverse Claim other than as authorized hereunder;
(vi) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction, under applicable law with respect to the assignment of Receivables of Government Obligors or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool and the Related Security and Collections in respect thereof, whether at the time of any purchase or reinvestment or at any subsequent time;
(vii) any dispute, claim, offset or defense (otherthan 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 gross negligence the sale of the merchandise or wilful misconduct service 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 this Agreement;
(ix) any products liability claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
(x) any loss incurred by any Purchaser as a result of the Outstanding Balance of all Pool Receivables from the same Obligor, expressed as a percentage of the aggregate Outstanding Balance of Eligible Receivables, being in excess of the Concentration Limit or, if applicable, Special Concentration Limit for such Obligor;
(xi) the commingling of Collections of Pool Receivables at any time with other funds;
(xii) any action or omission by the Seller, whether as Collection Agent or otherwise, reducing or impairing the rights of a Purchaser with respect to any Pool Receivable or the value of any Pool Receivable, except in accordance with the Credit and Collection Policy;
(xiii) any failure of the Seller to give reasonably equivalent value to any Seller Subsidiary in consideration of the transfer by such Seller Subsidiary to the Seller of any Receivables, or any attempt by any Person to void any such transfer under statutory provisions or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code;
(xiv) any loss incurred by a Purchaser on any Pool Receivable denominated and payable in a currency other than United States dollars as a result of such Receivable not being payable when due in the full amount of United States dollars determined hereunder after giving effect to any payment under any forward foreign exchange contract or other hedging agreement entered into by the Seller or a Seller Subsidiary with respect to such Receivable; or
(xv) any reductions in the amount of a Pool Receivable the Obligor of which is a Government Obligor, and the Related Security and Collections with respect thereto, as the result of appropriation by the government or the inability to collect any amount from a Government Obligor;
(xvi) any inability to collect the full Outstanding Balance of a Pool Receivable which was entitled to an Administrative Priority as a result of the Obligor's bankruptcy and which was included as an Eligible Receivable as a result of such Administrative Priority;
(xvii) any investigation, litigation or proceeding related to or arising from this Agreement, the transactions contemplated hereby, the use of the proceeds of the Purchase, the ownership of the Receivable Interests or any Pool Receivable, Related Security or Contract or any other investigation, litigation or proceeding relating to the Seller or any Seller Subsidiary in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(xviii) all losses, expenses and liabilities, if any (including, without limitation, any loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Purchaser in connection with such Purchaser's funding or maintenance of the Receivable Interests) which such Purchaser may sustain as the result of the termination or reduction of any Receivable Interest or the failure by the Seller or the Collection Agent (if the Seller or an Affiliate thereof) to make any payment of Capital when due;
(xix) any inability to litigate any claim against any Obligor in respect of any Pool Receivable as a result of such Obligor being immune from civil and commercial law and suit on the part grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(xx) any inability to enforce any judgment rendered in the United States against any Foreign Obligor in such Indemnified Party.Foreign Obligor's country of domicile in respect of any Pool Receivable without reexamination or relitigation of the matters adjudicated upon; (xxi) any Event of Termination described in clause (h) of Section 7.01; or
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Pacific Corp)
Indemnities by the Seller. Without limiting any other rights that which the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify the Purchaser and its assigns and transferees and each of their respective officers, directors, employees and advisors (each, an “Indemnified Party Party”) from and against any and all damages, claims, damageslosses, liabilities and related costs and expenses, losses including reasonable attorneys’ fees and liabilities (including legal costs) arising out of, relating to or resulting from any of the following disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”):), awarded against or incurred by any Indemnified Party arising out of or as a result of this Agreement or the purchase of any Transferred Receivables or in respect of any Transferred Receivable or any Contract, including, without limitation, arising out of or as a result of:
(ai) subject to Section 2.3 hereof, the failure characterization in any Seller Report or other statement made by or on behalf of the Seller of any Purchased Loan to meet the Eligibility Criteria Transferred Receivable as an Eligible Receivable which is not an Eligible Receivable as of the date of the initial purchase such Seller Report or its Purchase Date, as the case may bestatement;
(bii) subject to Section 2.3 hereof, the failure of 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 or any other Purchase Document to Agreement, which shall have been true and correct incorrect in any material respect when made;
(ciii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Transferred Receivable or the servicing, administration, enforcement or other dealing with any Purchased Loansrelated Contract; or the failure of any Purchased Loans Transferred Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(div) the sale by the Seller of any Receivable in violation of applicable laws, rules or regulations;
(v) the failure to sell, assign, transfer and convey to vest in the Purchaser beneficial absolute ownership inof the Receivables that are, and or that purport to vest in and maintain vested inbe, the Purchaser subject of a valid Purchase under this Agreement and enforceable first prioritythe Related Security and Collections in respect thereof, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted it being agreed that this clause (v) is not intended to be an indemnity for the failure of any Underlying Inventory Security Interest or Adverse Claim granted by or to constitute a first priority security interest in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security Interestinventory);
(evi) the failure of the Seller to have registered or filed in accordance with the provisions hereoffiled, or any delay in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any applicable laws the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables that are, or that purport to be, the Purchased Assets or any part subject of a Purchase under this Agreement and the Related Security and Collections in respect thereof, whether at the time of any purchase Purchase or at any subsequent time;
(fvii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable that is, or that purports to be, the 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 services 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 Seller, as Collection Agent or otherwise, to perform its covenants, duties or obligations in accordance with the provisions hereof or to perform its duties or obligations under any Contract related to a Transferred Receivable;
(ix) any products liability or other claim by an Obligor or other third party arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
(x) the commingling of Collections of Transferred Receivables by the Seller or a designee of the Seller, as Collection Agent or otherwise, at any time with other funds of the Seller or an Affiliate of the Seller;
(xi) 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;
(xii) any failure of the Seller to comply with its covenants contained in this Agreement;
(xiii) any Collection Agent Fees or other costs and expenses payable to any replacement Collection Agent, to the extent in excess of the Collection Agent Fees payable to the initial Collection Agent hereunder;
(xiv) 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 servicing, administering or collecting any Transferred Receivable; or
(xv) any Transferred Receivable (in whole or in part) becoming a Diluted 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 or withholding taxes (in the case of withholding taxes, other than (i) withholding taxes that are imposed by Canada or any political subdivision thereof on any Indemnified Party or that are withheld from any Collections or other payments made hereunder or (ii) due to changes in law) incurred by such Person arising out of or as a result of this Agreement or in respect of any Transferred Receivable or any Contract; provided, that, for the sake of clarity, the Seller agrees to indemnify each Indemnified Party for the full amount of any withholding taxes that are imposed by Canada or any political subdivision thereof on any Indemnified Party or that are withheld from any Collections or other payments made hereunder, as well as to indemnify each Indemnified Party for any taxes attributable to the transactions contemplated by this Agreement or any other Purchase Transaction Document or to perform its covenants, duties or obligations under the Purchased Loans;
(g) that are imposed on any failure by the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify as a result of such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to having a permanent establishment in Canada for the purposes of a Tax Convention or resulting from, any carrying on business in Canada for the purposes of the foregoing providedTax Act (unless it acquired such permanent establishment or carried on such business, howeveras the case may be, that otherwise than as a result of the foregoing obligation of indemnification shall transactions contemplated hereby), together in each case with any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, and whether or not include Indemnified Amounts to the extent resulting from gross negligence such taxes were correctly or wilful misconduct on the part of such Indemnified Partylegally asserted.
Appears in 1 contract
Samples: Secondary Purchase Agreement (Ingersoll Rand Co LTD)
Indemnities by the Seller. Without limiting any other rights that the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “CMGFSC Indemnified Party”) Party may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify the Issuer and each of its successors, permitted transferees and assigns, and all officers, directors, shareholders, controlling Persons, employees and agents of any of the foregoing (each of the foregoing Persons, a “CMGFSC Indemnified Party Party”), from and against any and all claims, damages, expenseslosses, losses and claims (whether on account of settlements or otherwise), actions, suits, demands, judgments, liabilities (including legal costspenalties), obligations or disbursements of any kind or nature and related costs and expenses (including reasonable attorneys’ fees and disbursements) awarded against or incurred by any of them, arising out of, relating to of or resulting from as a result of any of the following (all of the foregoing being collectively referred to as foregoing, collectively, “CMGFSC Indemnified AmountsLosses”):
(a) subject to Section 2.3 hereof, any representation or warranty made by the failure of Seller under any Purchased Loan to meet the Eligibility Criteria as of the date of Transaction Documents, any Monthly Originator Report or any other information or report delivered by the initial purchase Seller with respect to the Seller or its Purchase Datethe KF Purchased Assets, as the case may behaving been untrue or incorrect in any respect when made or deemed to have been made;
(b) subject to Section 2.3 hereof, the failure of 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 or any other Purchase Document to have been true and correct when made;
(c) the failure by the Seller to comply with any material applicable law, rule or regulation Requirement of Law with respect to the servicing, administration, enforcement any KF Purchased Asset or other dealing with any Purchased Loans; or the failure of any Purchased Loans to conform to any such applicable law, rule or regulation;
(d) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security Interest;
(e) the failure to have registered or filed in accordance with the provisions hereof, or any delay in so doing, Financing Statements, Registrable Transfers or other similar instruments or documents under any applicable laws of any applicable jurisdiction with respect to the Purchased Assets or any part thereof, whether at the time of any purchase or at any subsequent time;
(f) any failure of the Seller a KF Purchased Asset to perform its covenants, duties or obligations in accordance comply with the provisions any such material Requirement of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under the Purchased Loans;
(g) any failure by the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any Law as of the foregoing provided, however, that date of the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part sale of such Indemnified Party.KF Purchased Asset hereunder;
Appears in 1 contract
Indemnities by the Seller. Without limiting any other rights that the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “CMF Indemnified Party”) Party may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify ARSC and each Indemnified Party of its successors, permitted transferees and assigns, and all officers, directors, shareholders, controlling Persons, employees and agents of any of the foregoing (each of the foregoing Persons, a "CMF INDEMNIFIED PARTY"), from and against any and all claims, damages, expenseslosses, losses and claims (whether on account of settlements or otherwise), actions, suits, demands, judgments, liabilities (including legal costspenalties), obligations or disbursements of any kind or nature and related costs and expenses (including reasonable attorneys' fees and disbursements) awarded against or incurred by any of them, arising out of, relating to of or resulting from as a result of any of the following (all of the foregoing being collectively referred to as “Indemnified Amounts”foregoing, collectively, "CMF INDEMNIFIED LOSSES"):
(a) subject any representation or warranty made by the Seller under any of the Transaction Documents, any Daily Seller Report or any other information or report delivered by the Seller with respect to the Seller or the ARSC Purchased Assets, having been untrue or incorrect in any respect when made or deemed to have been made; PROVIDED, HOWEVER, that the Seller's obligation to make a CMF Noncomplying Asset Adjustment pursuant to Section 2.3 hereof, 4.3(a) with respect to any representation made in Section 6.1(l) as to Eligible Receivables having been incorrect when made shall be the failure of any Purchased Loan only remedy available to meet the Eligibility Criteria as of the date of the initial purchase ARSC or its Purchase Date, as the case may beassignees relating to such incorrect representation;
(b) subject to Section 2.3 hereof, the failure of 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 or any other Purchase Document to have been true and correct when made;
(c) the failure by the Seller to comply with any material applicable law, rule or regulation applicable to the Seller with respect to the servicing, administration, enforcement any ARSC Purchased Asset or other dealing any failure of a ARSC Purchased Asset to comply with any Purchased Loans; or the failure of any Purchased Loans to conform to any such applicable law, rule or regulation;
(d) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour regulation as of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part date of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour sale of such Governmental Authority other than a Permitted Security InterestARSC Purchased Asset hereunder;
(e) the failure to have registered or filed in accordance with the provisions hereof, or any delay in so doing, Financing Statements, Registrable Transfers or other similar instruments or documents under any applicable laws of any applicable jurisdiction with respect to the Purchased Assets or any part thereof, whether at the time of any purchase or at any subsequent time;
(f) any failure of the Seller to perform its covenants, duties or obligations in accordance with the provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under the Purchased Loans;
(g) any failure by the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part of such Indemnified Party.
Appears in 1 contract
Indemnities by the Seller. Without limiting any other rights that which the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable law, but without duplication, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify the Purchaser and its permitted successors and assigns and all officers, directors, agents and employees of the foregoing (each of the foregoing Persons being individually referred to herein as an "Indemnified Party Party") from and against any and all damages, losses, claims, damagesjudgments, liabilities and related costs and expenses, losses including reasonable attorneys' fees and liabilities (including legal costs) arising out ofdisbursements, awarded against or incurred by any Indemnified Party relating to or resulting from or in connection with any of the following (all collectively, the "Indemnified Losses", and each an "Indemnified Loss"), other than any such Indemnified Loss (x) constituting recourse for Receivables which are uncollectible for credit reasons or (y) which arise solely from the gross negligence or willful misconduct of the foregoing being collectively referred to as “affected Indemnified Amounts”):Party:
(ai) subject to Section 2.3 hereof, the failure sale or transfer of any Purchased Loan Noncomplying Receivable to meet the Eligibility Criteria as of the date of the initial purchase or its Purchase Date, as the case may bePurchaser pursuant hereto;
(bii) subject to Section 2.3 hereof, the failure of reliance on any representation or warranty or statement made or deemed made in writing by the Seller (or any of its officers), ) under or in connection with this Agreement Agreement, any Seller Transfer Report or any "Monthly Report" (as defined in the Credit Agreement and/or the Indenture, as applicable), or reliance on any other Purchase Document information or report delivered by the Seller or by the Master Servicer with respect to the Seller (to the extent based on information provided by the Seller) pursuant hereto, which shall have been true false, incorrect or materially misleading in any respect when made (it being agreed that the incorrectness of any such representation or warranty or the determination that any such representation or warranty was materially misleading, and correct when madethe obligations of the Seller pursuant to this clause (ii) resulting therefrom, shall in each case, be determined without giving effect to any limitation on the "knowledge," "best of knowledge" or other similar limitation on the knowledge of the Seller contained in any such representation or warranty);
(ciii) the failure by the Seller to comply with any term, provision or covenant contained in this Agreement, or any agreement executed in connection with this Agreement or with any applicable law, rule or regulation with respect to any Receivable, the servicing, administration, enforcement or other dealing with any Purchased Loans; related Settlement Purchase Agreement or the failure "Related Security" (as defined in the Credit Agreement), or the nonconformity of any Purchased Loans to conform to Receivable, the related Settlement Purchase Agreement or the Related Security with any such applicable law, rule or regulation;
(div) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested inin the Purchaser or to transfer to the Purchaser, legal and equitable title to, and first priority perfected ownership of, the Purchaser a valid Receivables and enforceable first priorityother Transferred Assets which are, opposable and perfected ownership interest in the Purchased Assets (including upon registration or are purported to be, sold or otherwise transferred by the Purchaser of any Registrable Transfers) Seller hereunder, free and clear of any Adverse Claim Lien (other than a Permitted Security Interest or Adverse Claim granted by or Liens created in favour favor of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of Purchaser hereunder and Liens created under the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security InterestOperative Documents);
(ev) the failure to have registered or filed in accordance with the provisions hereoffile, or any delay in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any applicable laws the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables and other Transferred Assets which are, or are purported to be, sold or otherwise transferred by the Purchased Assets or any part thereofSeller hereunder, whether at the time of any purchase Purchase or at any subsequent time;
(fvi) the failure by the Seller 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;
(vii) the failure of the Seller to perform pay when due any sales taxes or other governmental fees or charges imposed in connection with the transfer of the Purchased Assets hereunder;
(viii) the failure of the Seller or any of its covenantsagents, duties employees or obligations representatives to remit to the Purchaser, Collections of Transferred Assets remitted to the Seller or any such agent, employees or representatives in accordance with the terms hereof;
(ix) the assignment by a Claimant or the Seller under a Settlement Agreement of the rights to Scheduled Payments (or any portion thereof) under a Settlement Purchase Agreement in contravention of an anti-assignment provision in such Settlement Agreement that prohibits the transfer of the rights to such Scheduled Payments (or any such thereof); and
(x) any Indemnified Loss arising under a Receivable, the Settlement Agreement underlying which was not the subject of a Qualified Assignment, to the extent such Indemnified Loss would not have been incurred had such Settlement Agreement been the subject of a Qualified Assignment (without regard to whether there may have been a different Annuity Provider had there been a Qualified Assignment and disregarding any rights against any Person which would have been an Assignee had there been a Qualified Assignment). Any Indemnified Amounts payable under this Section 7.01 shall, be paid by the Seller to the Purchaser within five (5) Business Days following the Purchaser's written demand therefor, setting forth in reasonable detail the basis for such demand. The agreements of the Seller contained in this Section 7.01 shall survive the Collection Date. In addition, in no event shall Indemnified Losses include any consequential, special or punitive damages. The provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under Section 7.01 shall survive the Purchased Loans;
(g) any failure by the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any termination of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part of such Indemnified Partythis Agreement.
Appears in 1 contract
Indemnities by the Seller. Without limiting any other rights that the Administrative Agent, the Purchaser Agent, the Conduit Purchasers (including any related financing conduit if any such Conduit Purchaser funds itself through another issuing entity), the Committed Purchasers, the Program Support Providers, any Program Manager or any of its Affiliatestheir respective officers, directors, agents, employees, agents, successors, transferees controlling Persons or assigns Affiliates of any of the foregoing (each, an “Indemnified Party”) may have hereunder hereunder, under any other Transaction Document or under applicable lawLaw, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify and hold harmless each Indemnified Party from and against any and all damages, losses, claims, damagesliabilities, deficiencies, costs, disbursements and expenses, losses including interest, penalties, amounts paid in settlement and liabilities (including legal costs) arising out of, relating to or resulting from any of the following reasonable internal and external attorneys’ fees and expenses (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any Indemnified Party (including in connection with or relating to):
(ai) subject to Section 2.3 hereofany investigation, litigation or lawsuit (actual or threatened) or order, consent decree, judgment, claim or other action of whatever sort (including the failure preparation of any Purchased Loan to meet the Eligibility Criteria as of the date of the initial purchase or its Purchase Date, as the case may be;
(b) subject to Section 2.3 hereof, the failure of any representation or warranty or statement made or deemed made by the Seller (or any of its officersdefense with respect thereto), under in each case, in any way arising out of, resulting from or in connection with related to this Agreement or any other Purchase Document to have been true and correct when madeTransaction Document, the funding or maintenance or financing, either directly or indirectly, by any Indemnified Party of the Investments made hereunder or the use of the proceeds thereof or in respect of any Collateral or any Facility Account or the enforcement, servicing, administration or collection thereof, or any other transaction contemplated hereby or thereby;
(cii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to the servicing, administration, enforcement or other dealing with any Purchased Loans; or the failure occurrence of any Purchased Loans to conform to any such applicable lawFacility Event, rule Portfolio Event, Seller Event or regulationServicer Default;
(diii) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested inthe Seller ownership of the Portfolio Receivables, the Purchaser a valid Related Security with respect thereto and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) other Collateral free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security InterestClaims;
(eiv) the failure to have registered or filed vest in accordance with the provisions hereof, or any delay Administrative Agent a first priority perfected security interest prior to all other interests in so doing, Financing Statements, Registrable Transfers or other similar instruments or documents under any applicable laws of any applicable jurisdiction with respect to the Purchased Assets or any part thereof, whether at the time of any purchase or at any subsequent time;
(f) any failure all of the Seller to perform its covenantsPortfolio Receivables, duties or obligations in accordance with the provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under the Purchased Loans;
(g) any failure by the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part of such Indemnified Party.Related
Appears in 1 contract
Samples: Securitization Agreement (Bungeltd)
Indemnities by the Seller. Without limiting any other rights that the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “CFC Indemnified Party”) Party may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify ARSC and each of its successors, permitted transferees and assigns, and all officers, directors, shareholders, controlling Persons, employees and agents of any of the foregoing (each of the foregoing Persons, a “CFC Indemnified Party Party”), from and against any and all claims, damages, expenseslosses, losses and claims (whether on account of settlements or otherwise), actions, suits, demands, judgments, liabilities (including legal costspenalties), obligations or disbursements of any kind or nature and related costs and expenses (including reasonable attorneys’ fees and disbursements) awarded against or incurred by any of them, arising out of, relating to of or resulting from as a result of any of the following (all of the foregoing being collectively referred to as foregoing, collectively, “CFC Indemnified AmountsLosses”):
(a) subject any representation or warranty made by the Seller under any of the Transaction Documents, any Daily Seller Report or any other information or report delivered by the Seller with respect to the Seller or the ARSC Purchased Assets, having been untrue or incorrect in any respect when made or deemed to have been made; provided, however, that the Seller’s obligation to make a CFC Noncomplying Asset Adjustment pursuant to Section 2.3 hereof, 4.3(a) with respect to any representation made in Section 6.1(l) as to Eligible Receivables having been incorrect when made shall be the failure of any Purchased Loan only remedy available to meet the Eligibility Criteria as of the date of the initial purchase ARSC or its Purchase Date, as the case may beassignees relating to such incorrect representation;
(b) subject to Section 2.3 hereof, the failure of 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 or any other Purchase Document to have been true and correct when made;
(c) the failure by the Seller to comply with any material applicable law, rule or regulation applicable to the Seller with respect to the servicing, administration, enforcement any ARSC Purchased Asset or other dealing any failure of a ARSC Purchased Asset to comply with any Purchased Loans; or the failure of any Purchased Loans to conform to any such applicable law, rule or regulationregulation as of the date of the sale of such ARSC Purchased Asset hereunder;
(c) the failure to vest and maintain in ARSC a valid ownership or security interest in the ARSC Purchased Assets, free and clear of any Lien arising through the Seller or anyone claiming through or under the Seller (including without limitation any such failure arising from a circumstance described in the definition of Permitted Exceptions);
(d) the any failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part Seller to perform its duties or obligations in accordance with the provisions of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of Transaction Documents or are otherwise subject any Contract, in each case to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than which it is a Permitted Security Interestparty;
(e) the failure to have registered or filed in accordance with the provisions hereoffile, or any delay in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any applicable laws the UCC of any applicable jurisdiction or other applicable laws with respect to the transfer of any ARSC Purchased Assets or any part thereofto ARSC, whether at the time of any purchase sale or at any subsequent time;
(f) the failure by the Seller to pay when due any failure taxes owing by it (including sales, excise or property taxes) payable in connection with the ARSC Purchased Assets, other than any such taxes, assessments or charges that are being diligently contested in good faith by appropriate proceedings, for which adequate reserves in accordance with GAAP have been set aside on its books and that have not given rise to any Liens (other than Permitted Liens); (g) any reduction in the Unpaid Balance of any CFC Receivable included in the ARSC Purchased Assets as a result of (i) any cash discount or any adjustment by the Seller or any Affiliate of the Seller (other than Cartus, the Issuer or ARSC), (ii) any offsetting account payable of the Seller to perform its covenantsan Obligor, duties (iii) a set-off in respect of any claim by, or obligations in accordance with defense or credit of, the provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under the Purchased Loans;
(g) any failure by related Obligor against the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and Affiliate of the Seller shall pay on demand (without duplicationother than Cartus, the Issuer or ARSC) to each Indemnified Party any and all amounts necessary to indemnify (whether such Indemnified Party from and against any and all Indemnified Amounts arising claim, defense or credit arises out of, relating to or resulting from, any of the foregoing provided, however, that same or a related or an unrelated transaction) or (iv) the foregoing obligation of indemnification shall not include Indemnified Amounts the Seller to pay to the extent resulting from gross negligence related Obligor any rebate or wilful misconduct on the part of such Indemnified Party.refund;
Appears in 1 contract
Indemnities by the Seller. Without limiting any other rights that which the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify the Purchaser and its assigns and transferees and each of their respective officers, directors, employees and advisors (each, an “Indemnified Party Party”) from and against any and all damages, claims, damageslosses, liabilities and related costs and expenses, losses including reasonable attorneys’ fees and liabilities (including legal costs) arising out of, relating to or resulting from any of the following disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”):), awarded against or incurred by any Indemnified Party arising out of or as a result of this Agreement or the purchase or contribution of any Transferred Receivables or in respect of any Transferred Receivable or any Contract, including, without limitation, arising out of or as a result of:
(ai) subject to Section 2.3 hereof, the failure characterization in any Seller Report or other statement made by or on behalf of the Seller of any Purchased Loan to meet the Eligibility Criteria Transferred Receivable as an Eligible Receivable which is not an Eligible Receivable as of the date of the initial purchase such Seller Report or its Purchase Date, as the case may bestatement;
(bii) subject to Section 2.3 hereof, the failure of 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 or any other Purchase Document to Agreement, which shall have been true and correct incorrect in any material respect when made;
(ciii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Transferred Receivable or the servicing, administration, enforcement or other dealing with any Purchased Loansrelated Contract; or the failure of any Purchased Loans Transferred Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(div) the sale by the Seller of any Receivable in violation of applicable laws, rules or regulations;
(v) the failure to sell, assign, transfer and convey to vest in the Purchaser beneficial absolute ownership inof the Receivables that are, and or that purport to vest in and maintain vested inbe, the Purchaser subject of a valid Purchase or contribution under this Agreement and enforceable first prioritythe Related Security and Collections in respect thereof, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted it being agreed that this clause (v) is not intended to be an indemnity for the failure of any Underlying Inventory Security Interest or Adverse Claim granted by or to constitute a first priority security interest in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security Interestinventory);
(evi) the failure of the Seller to have registered or filed in accordance with the provisions hereoffiled, or any delay in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any applicable laws the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables that are, or that purport to be, the Purchased Assets subject of a Purchase or any part contribution under this Agreement and the Related Security and Collections in respect thereof, whether at the time of any purchase Purchase or contribution or at any subsequent time;
(fvii) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable that is, or that purports to be, the subject of a Purchase or contribution under this Agreement (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services or relating to collection activities with respect to such Receivable (if such collection activities were performed by the Seller acting as Collection Agent);
(viii) any failure of the Seller Seller, as Collection Agent, subcontractor of the Collection Agent or otherwise, to perform its covenants, duties or obligations in accordance with the provisions of this Agreement or any other Purchase Document hereof or to perform its covenants, duties or obligations under the Purchased Loansany Contract related to a Transferred Receivable;
(gix) any failure products liability or other claim by an Obligor or other third party arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
(x) the commingling of Collections of Transferred Receivables by the Seller or its assignee to repurchase a designee of the Seller, as Collection Agent or otherwise, at any Purchased Loan pursuant to Section 2.3, and time with other funds of the Seller shall pay on demand or an Affiliate of the Seller;
(without duplicationxi) any investigation, litigation or proceeding related to each 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;
(xii) any failure of the Seller to comply with its covenants contained in this Agreement;
(xiii) any Collection Agent Fees or other costs and expenses payable to any replacement Collection Agent, to the extent in excess of the Collection Agent Fees payable to the initial Collection Agent hereunder;
(xiv) any claim brought by any Person other than an Indemnified Party arising from any and all amounts necessary to indemnify such Indemnified Party from and against activity by the Seller or any and all Indemnified Amounts arising out of, relating to or resulting from, any Affiliate of the foregoing providedSeller in servicing, however, administering or collecting any Transferred Receivable; or
(xv) any Transferred Receivable (in whole or in part) becoming a Diluted Receivable. It is expressly agreed and understood by the parties hereto (i) that the foregoing obligation indemnification is not intended to, and shall not, constitute a guarantee of indemnification 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 include Indemnified Amounts collected, not paid or uncollectible on account of the insolvency, bankruptcy, or financial inability to pay of the extent resulting from gross negligence or wilful misconduct on the part of such Indemnified Party.applicable Obligor,
Appears in 1 contract
Samples: Initial Purchase and Contribution Agreement (Ingersoll Rand Co LTD)
Indemnities by the Seller. Without limiting any other rights that (a) The Seller hereby agrees to indemnify the Purchaser or any of and its Affiliates, employeesand all of their respective officers, agentstrustees, successorsdirectors, transferees or assigns agents and employees (each, each of the foregoing Persons being individually referred to herein as an “Purchaser Indemnified Party”) may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, to indemnify each Indemnified Party from and against any and all damages, losses, claims, damagesjudgments, liabilities and related costs and expenses, losses including reasonable attorneys’ fees and liabilities (including legal costs) arising out ofdisbursements, relating to awarded against, asserted against or incurred by any Purchaser Indemnified Party resulting from a third party claim (collectively, the “Indemnified Losses”, and each an “Indemnified Loss”), other than any Indemnified Loss arising solely from the gross negligence or willful misconduct of the following (all of the foregoing being collectively referred to as “affected Purchaser Indemnified Amounts”):Party, arising in connection with:
(ai) subject to Section 2.3 hereof, the failure of any Purchased Loan to meet the Eligibility Criteria as of the date of the initial purchase or its Purchase Date, as the case may be;
(b) subject to Section 2.3 hereof, the failure of any representation or warranty or statement made or deemed made in writing by the Seller (or any of its officers), Affiliates or officers under or in connection with this Agreement Agreement, any Purchase Notice or reliance on any other Purchase Document information or report delivered by, or on behalf of, the Seller with respect to have been true and correct the Seller or the Purchased Assets pursuant to this Agreement, which was false, incorrect or materially misleading in any respect when made or deemed made;
(cii) the failure by the Seller, or any Affiliate of the Seller, to comply with any term, provision or covenant contained in this Agreement, or any agreement executed in connection with this Agreement, including, for this purpose, the Related Documents and/or the Transaction Documents;
(iii) the failure to vest in the Purchaser or to transfer to the Purchaser, legal and equitable title to, and ownership of, the Purchased Assets free and clear of any Adverse Claims other than Permitted Adverse Claims in accordance with, and subject to the terms and conditions of this Agreement, except where any such failure is caused by an action of the Purchaser and except for Adverse Claims arising after the Purchase Date;
(iv) the failure by the Seller to comply with be duly qualified to do business, to be in good standing or to have filed appropriate fictitious or assumed name registration documents in any applicable law, rule or regulation with respect to the servicing, administration, enforcement or other dealing with any Purchased Loansjurisdiction; or and
(v) the failure of the Seller, any Purchased Loans Affiliate of the Seller or any of their respective agents, employees or representatives to conform remit to the Purchaser, Collected Funds remitted to the Seller, such Affiliate or any such applicable lawagent, rule employees or regulation;
(d) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security Interest;
(e) the failure to have registered or filed representatives in accordance with the provisions hereof, or any delay in so doing, Financing Statements, Registrable Transfers or other similar instruments or documents under any applicable laws of any applicable jurisdiction with respect to the Purchased Assets or any part thereof, whether at the time of any purchase or at any subsequent time;
(f) any failure of the Seller to perform its covenants, duties or obligations in accordance with the provisions terms of this Agreement or any other Purchase Document or to perform its covenantsAgreement, duties or obligations under the Purchased Loans;
(g) any failure by Related Documents and/or the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part of such Indemnified PartyTransaction Documents.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Rochdale High Yield Advances Fund LLC)
Indemnities by the Seller. (a) Without limiting any other rights that which the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) Buyer may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify each the Buyer and its permitted successors and assigns (including, without limitation, Triple-A, the Collateral Agent and the Surety) and their respective officers, directors, agents and employees (each, an “Indemnified Party Party”), from and against any and all damages, losses, claims, damages, liabilities and related costs and expenses, losses including reasonable attorneys’ fees and liabilities (including legal costs) arising out of, relating to or resulting from any of the following disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any Indemnified Party relating to or resulting from any of the following (excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of an Indemnified Party or (ii) recourse (except with respect to payment and performance obligations provided for in this Sale Agreement) for uncollectible Receivables):
(ai) subject to Section 2.3 hereof, the failure transfer of any Purchased Loan to meet the Eligibility Criteria Receivable which was not, as of the date of the initial purchase or its Purchase DatePurchase, as the case may bean Eligible Receivable;
(bii) subject to Section 2.3 hereof, the failure of 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 Sale Agreement, any Settlement Report or any other Purchase Document to information or report delivered by the Seller pursuant hereto, which shall have been true and correct false or incorrect in any material respect when mademade or deemed made or delivered;
(ciii) the failure by the Seller (individually or as Servicer) to comply with any term, provision or covenant contained in this Sale Agreement (other than any covenant contained in Section 5.04, a breach of which shall constitute an Event of Termination but shall not give rise to indemnification under this Section 8.01), or any agreement executed in connection with this Sale Agreement or with any applicable law, rule or regulation with respect to any Receivable, the servicingrelated Contract, administration, enforcement or other dealing with any Purchased Loans; the Related Security or the failure other Transferred Assets, or the nonconformity of any Purchased Loans to conform to Receivable, the related Contract, the Related Security or the other Transferred Assets with any such applicable law, rule or regulation;
(div) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration by Buyer or to transfer to the Purchaser Buyer valid legal and equitable title to and ownership of any Registrable Transfers) the Transferred Assets, free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, free and clear of any claim by any Governmental Authority that any part Permitted Encumbrance except in favor of the Purchased Assets consisting Buyer or its assignees) whether existing at the time of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour Purchase of such Governmental Authority other than a Permitted Security InterestReceivable or at any time thereafter;
(ev) the failure to have registered or filed in accordance with the provisions hereoffile, or any delay in so doingfiling (other than solely as a result of the action or inaction of the Buyer), Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any applicable laws the UCC of any applicable jurisdiction or other applicable laws against the Seller with respect to the Purchased Assets any Contract or any part thereofReceivables which are, or are purported to be, Transferred Assets, whether at the time of any purchase Purchase or at any subsequent time;
(fvi) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale or lease of the Equipment and/or services related thereto or the furnishing or failure to furnish such Equipment and/or services;
(vii) any failure of the Seller Seller, as Servicer or otherwise, to perform its covenants, duties or obligations in accordance with the provisions of this Agreement Article VI;
(viii) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with the Equipment or any other Purchase Document goods, merchandise and/or services which are the subject of any Receivable or to perform its covenants, duties or obligations under the Purchased LoansContract;
(gix) the failure to pay when due any failure taxes, including, without limitation, sales, excise or personal property taxes payable in connection with the Transferred Assets;
(x) the termination, rejection or non-assumption by the Seller of any Contract prior to the original term of such Contract, whether such rejection, early termination or its assignee to repurchase any Purchased Loan non-assumption is made pursuant to an equitable cause, statute, regulation, judicial proceeding or other applicable laws (including, without limitation, Section 2.3, 365 of the Bankruptcy Code);
(xi) the failure of the Seller and the Seller shall pay on demand Obligors under the Contracts to maintain casualty and liability insurance for the Equipment related to the Receivables in an amount at least equal to the Discounted Receivables Balance for all Receivables at such time;
(without duplicationxii) the failure of any Lock-Box Bank to each Indemnified Party remit any and all amounts necessary to indemnify such Indemnified Party from and against funds in the Lock-Box Accounts as required hereunder; and
(xiii) the commingling of Collections of any and all Indemnified Amounts arising out of, relating to or resulting from, Transferred Assets with any other funds of the foregoing providedSeller, howeverother than, that for as long as the foregoing obligation of indemnification shall not include Indemnified Amounts Seller and the Buyer are parties to the Escrow Agreement, to the extent resulting from gross negligence or wilful misconduct on such commingling is contemplated thereunder. Any amounts subject to the part indemnification provisions of such this Section 8.01 shall be paid by the Seller to the applicable Indemnified Party within two Business Days following the Indemnified Party’s demand therefor.
Appears in 1 contract
Indemnities by the Seller. Without limiting any other ------------------------- rights that which the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify each the Purchaser and its assigns and referees (each, an "Indemnified Party Party") from and against any and all damages, claims, damages----------------- losses, liabilities and related costs and expenses, losses including reasonable attorneys' fees and liabilities (including legal costs) arising out of, relating to or resulting from any of the following disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”):"), awarded against or incurred by any ------------------- Indemnified Party arising out of or as a result of:
(ai) subject to Section 2.3 hereofthe inclusion, the failure or purported inclusion, in any Purchase of any Purchased Loan to meet the Eligibility Criteria as of Receivable that is not an Eligible Receivable on the date of the initial purchase or its Purchase Date, as the case may besuch Purchase;
(bii) subject to Section 2.3 hereof, the failure of 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 or any other Purchase Document to Agreement, which shall have been true and correct incorrect in any material respect when made;
(ciii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Transferred Receivable or the servicing, administration, enforcement or other dealing with any Purchased Loansrelated Contract; or the failure of any Purchased Loans Transferred Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(div) the failure to sell, assign, transfer and convey to vest in the Purchaser beneficial absolute ownership inof the Receivables that are, and or that purport to vest in and maintain vested inbe, the Purchaser subject of a valid Purchase or contribution under this Agreement and enforceable first prioritythe Related Security and Collections in respect thereof, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security InterestClaim;
(ev) the failure of the Seller to have registered or filed in accordance with the provisions hereoffiled, or any delay in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any applicable laws the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables that are, or that purport to be, the Purchased Assets subject of a Purchase or any part contribution under this Agreement and the Related Security and Collections in respect thereof, whether at the time of any purchase Purchase or contribution or at any subsequent time;
(fvi) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Payor) of the Payor to the payment of any Receivable that is, or that purports to be, the subject of a Purchase or contribution under this Agreement (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Payor 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 relating to collection activities with respect to such Receivable (if such collection activities were performed by the Seller acting as Servicer) 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;
(vii) any failure of the Seller Seller, as Servicer or otherwise, to perform its covenants, duties or obligations in accordance with the provisions hereof or to perform its duties or obligations under any Contract related to a Transferred Receivable;
(viii) any products liability or other claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
(ix) the commingling of Collections of Transferred Receivables by the Seller or a designee of the Seller, as Servicer or otherwise, at any time with other funds 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, except to the extent any such investigation, litigation or proceeding relates to a possible matter involving an Indemnified Party for which neither the Seller nor any of its Affiliates is at fault;
(xi) any failure of the Seller to comply with its covenants contained in Section 5.1;
(xii) any Servicer Fees or other costs and expenses payable to any replacement Servicer, to the extent in excess of the Servicer 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 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 8.1 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 Payor, (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 other Purchase Document Transferred Receivable or to perform its covenants, duties or obligations under the Purchased Loans;
(g) any failure by the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part of such Indemnified PartyContract.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Healthcare Financial Partners Inc)
Indemnities by the Seller. Without limiting any other rights that which the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable law, but without duplication, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify the Purchaser and its permitted successors and assigns and all officers, directors, agents and employees of the foregoing (each of the foregoing Persons being individually referred to herein as an "Indemnified Party Party") from and against any and all damages, losses, claims, damagesjudgments, liabilities and related costs and expenses, losses including reasonable attorneys' fees and liabilities (including legal costs) arising out ofdisbursements, awarded against or incurred by any Indemnified Party relating to or resulting from or in connection with any of the following (all collectively, the "Indemnified Losses", and each an "Indemnified Loss"), other than any such Indemnified Loss (x) constituting recourse for Receivables which are uncollectible for credit reasons or (y) which arise solely from the gross negligence or willful misconduct of the foregoing being collectively referred to as “affected Indemnified Amounts”):Party:
(ai) subject to Section 2.3 hereof, the failure sale of any Purchased Loan Non-Complying Receivable to meet the Eligibility Criteria as of the date of the initial purchase or its Purchase Date, as the case may bePurchaser pursuant hereto;
(bii) subject to Section 2.3 hereof, the failure of reliance on any representation or warranty or statement made or deemed made in writing by the Seller (or any of its officers), ) under or in connection with this Agreement Agreement, any Seller Transfer Report or any "Monthly Report" (as defined in the Pooling and Servicing Agreement), or reliance on any other Purchase Document information or report delivered by the Seller or by the Master Servicer with respect to the Seller (to the extent based on information provided by the Seller) pursuant hereto, which shall have been true false, incorrect or materially misleading in any respect when made (it being agreed that the incorrectness of any such representation or warranty, and correct when madethe substitution or repurchase obligation of the Seller pursuant to this clause (ii) resulting therefrom, shall in each case, be determined without giving effect to any limitation on the "knowledge," "best of knowledge" or other similar limitation on the knowledge of the Seller contained in any such representation or warranty);
(ciii) the failure by the Seller to comply with any term, provision or covenant contained in this Agreement, or any agreement executed in connection with this Agreement or with any applicable law, rule or regulation with respect to any Receivable, the servicing, administration, enforcement or other dealing with any Purchased Loans; related Settlement Purchase Agreement or the failure "Related Security" (as defined in the Pooling and Servicing Agreement), or the nonconformity of any Purchased Loans to conform to Receivable, the related Settlement Purchase Agreement or the Related Security with any such applicable law, rule or regulation;
(div) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested inin the Purchaser or to transfer to the Purchaser, legal and equitable title to, and first priority perfected ownership of, the Purchaser a valid Receivables and enforceable first priority, opposable and perfected ownership interest in the other Purchased Assets (including upon registration which are, or are purported to be, sold or otherwise transferred by the Purchaser of any Registrable Transfers) Seller hereunder, free and clear of any Adverse Claim Lien (other than a Permitted Security Interest or Adverse Claim granted by or Liens created in favour favor of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of Purchaser hereunder and Liens created under the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security InterestOperative Documents);
(ev) the failure to have registered or filed in accordance with the provisions hereoffile, or any delay in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any applicable laws the UCC of any applicable jurisdiction or other applicable laws with respect to the any Receivables and other Purchased Assets which are, or any part thereofare purported to be, sold or otherwise transferred by the Seller hereunder, whether at the time of any purchase Purchase or at any subsequent time;
(fvi) the failure by the Seller 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;
(vii) the failure of the Seller to perform pay when due any sales taxes or other governmental fees or charges imposed in connection with the transfer of the Purchased Assets hereunder;
(viii) the failure of the Seller or any of its covenantsagents, duties employees or obligations representatives to remit to the Purchaser, Collections of Purchased Assets remitted to the Seller or any such agent, employees or representatives in accordance with the terms hereof; and
(ix) the assignment by a Claimant under a Settlement Agreement of the rights to Scheduled Payments (or any portion thereof) that have been or which are hereafter transferred by such Claimant to the Seller pursuant to a Settlement Purchase Agreement in contravention of an anti-assignment provision in such Settlement Agreement that prohibits the Claimant's transfer of the rights to such Scheduled Payments (or any such thereof). Any Indemnified Amounts payable under this Section 7.01 shall, be paid by the Seller to the Purchaser within five (5) Business Days following the Purchaser's written demand therefor, setting forth in reasonable detail the basis for such demand. The agreements of the Seller contained in this Section 7.01 shall survive the Collection Date. In addition, in no event shall Indemnified Losses include any consequential, special or punitive damages. The provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under Section 7.01 shall survive the Purchased Loans;
(g) any failure by the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any termination of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part of such Indemnified Partythis Agreement.
Appears in 1 contract
Indemnities by the Seller. Without limiting any other rights that the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “CFC Indemnified Party”) Party may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify ARSC and each of its successors, permitted transferees and assigns, and all officers, directors, shareholders, controlling Persons, employees and agents of any of the foregoing (each of the foregoing Persons, a “CFC Indemnified Party Party”), from and against any and all claims, damages, expenseslosses, losses and claims (whether on account of settlements or otherwise), actions, suits, demands, judgments, liabilities (including legal costspenalties), obligations or disbursements of any kind or nature and related costs and expenses (including reasonable attorneys’ fees and disbursements) awarded against or incurred by any of them, arising out of, relating to of or resulting from as a result of any of the following (all of the foregoing being collectively referred to as foregoing, collectively, “CFC Indemnified AmountsLosses”):
(a) subject any representation or warranty made by the Seller under any of the Transaction Documents, any Daily Seller Report or any other information or report delivered by the Seller with respect to the Seller or the ARSC Purchased Assets, having been untrue or incorrect in any respect when made or deemed to have been made; provided, however, that the Seller’s obligation to make a CFC Noncomplying Asset Adjustment pursuant to Section 2.3 hereof, 4.3(a) with respect to any representation made in Section 6.1(l) as to Eligible Receivables having been incorrect when made shall be the failure of any Purchased Loan only remedy available to meet the Eligibility Criteria as of the date of the initial purchase ARSC or its Purchase Date, as the case may beassignees relating to such incorrect representation;
(b) subject to Section 2.3 hereof, the failure of 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 or any other Purchase Document to have been true and correct when made;
(c) the failure by the Seller to comply with any material applicable law, rule or regulation applicable to the Seller with respect to the servicing, administration, enforcement any ARSC Purchased Asset or other dealing any failure of a ARSC Purchased Asset to comply with any Purchased Loans; or the failure of any Purchased Loans to conform to any such applicable law, rule or regulation;
(d) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour regulation as of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part date of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour sale of such Governmental Authority other than a Permitted Security InterestARSC Purchased Asset hereunder;
(e) the failure to have registered or filed in accordance with the provisions hereof, or any delay in so doing, Financing Statements, Registrable Transfers or other similar instruments or documents under any applicable laws of any applicable jurisdiction with respect to the Purchased Assets or any part thereof, whether at the time of any purchase or at any subsequent time;
(f) any failure of the Seller to perform its covenants, duties or obligations in accordance with the provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under the Purchased Loans;
(g) any failure by the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part of such Indemnified Party.
Appears in 1 contract
Samples: Omnibus Amendment (Realogy Corp)
Indemnities by the Seller. Without limiting any other rights that which the Purchaser Company or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Purchase and Sale Indemnified Party”) Party may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify the Company and each of its assigns, officers, directors, employees and agents (each of the foregoing Persons being individually called a "Purchase and Sale Indemnified Party Party"), forthwith on demand, from and against any and all claims, damages, expenses, costs, losses and liabilities (including legal costsAttorney Costs) arising out of, relating to or resulting from any of the following (all of the foregoing being collectively referred to as “"Purchase and Sale Indemnified Amounts”):") awarded against or incurred by any of them arising out of or resulting from this Agreement (whether directly or indirectly), the use of the proceeds acquired by the Seller hereunder , the ownership of the Receivables and Related Rights or in respect of any Receivable, Related Security or Contract. Without limiting or being limited by the foregoing, and subject to the exclusions set forth below, the Seller shall pay on demand to each Purchase and Sale Indemnified Party any and all amounts necessary to indemnify such party from and against any and all Purchase and Sale Indemnified Amounts resulting from any of the following:
(a) subject the transfer by the Seller of an interest in any Receivable or Related Right to Section 2.3 hereof, any Person other than the failure of any Purchased Loan to meet the Eligibility Criteria as of the date of the initial purchase or its Purchase Date, as the case may beCompany;
(b) subject to Section 2.3 hereof, the failure breach of 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 or any other Purchase Document to Transaction Document, or any information or report delivered by the Seller pursuant hereto or thereto which shall have been true and correct false or incorrect in any respect when made or deemed made;
(c) the failure by the Seller to comply with any applicable law, rule or regulation with respect to the servicing, administration, enforcement or other dealing with any Purchased Loans; Receivable or the failure related Contract, or the nonconformity of any Purchased Loans to conform to Receivable or the related Contract with any such applicable law, rule or regulation;
(d) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, in the Purchaser a valid and enforceable first priority, opposable and perfected Company an ownership interest in the Purchased Assets (including upon registration by Receivables and the Purchaser of any Registrable Transfers) Related Rights free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security InterestClaim;
(e) the failure of the Seller to have registered or filed in accordance file with the provisions hereofrespect to itself, or any delay by the Seller in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any applicable laws the UCC of any applicable jurisdiction or other applicable laws with respect to the Purchased Assets any Receivables or purported Receivables or any part thereofRelated Rights, whether at the time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable (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 goods or services related to any such Receivable or the furnishing of or failure to furnish such goods or services;
(g) any product liability claim arising out of or in connection with goods or services that are the subject of any Receivable;
(h) any litigation, proceeding or investigation against the Seller;
(i) any tax or governmental fee or charge (other than any tax excluded pursuant to the proviso below), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase, contribution or ownership of the Receivables or any Related Right connected with any such Receivables; and
(j) any failure of the Seller to perform its covenants, duties or obligations in accordance with the provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under the Purchased Loans;
(g) any failure by the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any of the foregoing providedTransaction Document; excluding, however, that the foregoing obligation of indemnification shall not include (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or wilful willful misconduct on the part of such a Purchase and Sale Indemnified Party, (ii) any indemnification which has the effect of recourse for non-payment of the Receivables due to credit reasons to any indemnitor (except as otherwise specifically provided under this Section 8.1) and (iii) any tax based upon or measured by net income or gross receipts.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Warnaco Group Inc /De/)
Indemnities by the Seller. Without limiting any other rights that which the Purchaser Administrative Agent or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) the Owners may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify each the Purchaser, the Administrative Agent, the APA Purchasers and the CP Dealers and any successors and permitted assigns and their respective officers, directors and employees (collectively, “Indemnified Party Parties”), from and against any and all damages, losses, claims, damagesliabilities, costs and expenses, losses and liabilities including, without limitation, reasonable attorneys’ fees (including legal costs) arising out of, relating to or resulting from any which such attorneys may be employees of the following APA Purchasers and the CP Dealers or the Administrative Agent, as applicable) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”):), arising out of or in connection with:
(ai) subject to Section 2.3 hereofany dispute, action, suit, litigation or proceeding arising out of or as a result of (x) this Agreement, the failure other Transfer Documents, the ownership or maintenance by the Administrative Agent, the Purchaser or any APA Purchaser of the Eligible Loans, (y) the use of proceeds of Transfers by the Seller, or (z) any Eligible Loan; provided that no Indemnified Party shall have the right to be indemnified under this paragraph (i) in respect of any Purchased Loan litigation instituted by (x) any person (a “Participant”) participating in the interest of any APA Purchaser under the Revolving Asset Purchase Agreement against any APA Purchaser or the Agent, (y) any APA Purchaser against any Participant, any APA Purchaser or the Agent, or (z) any holder of any security of any APA Purchaser (in its capacity as such) against any APA Purchaser, to meet the Eligibility Criteria as extent any such litigation does not arise out of any misconduct (alleged in good faith by such APA Purchaser) by or on behalf of the date of the initial purchase or its Purchase Date, as the case may be;Seller.
(bii) subject to Section 2.3 hereof, the failure of any representation or warranty (other than a representation or statement made or deemed warranty in Section 3.2 hereof) made by the Seller (including, in its capacity as the Servicer) or any officers of the Seller (including, in its officers), capacity as the Servicer) under or in connection with this Agreement Agreement, any of the other Transfer Documents, any Servicer Report or any other Purchase Document to information or report delivered by the Seller or the Servicer pursuant hereto, which shall have been true and correct false or incorrect in any material respect when made or deemed made;
(ciii) the failure by the Seller (including, in its capacity as the Servicer) to comply with any applicable law, rule or regulation with respect to the servicing, administration, enforcement or other dealing with any Purchased Loans; Eligible Loan or the failure nonconformity of any Purchased Loans to conform to Eligible Loan with any such applicable law, rule or regulation;
(div) any claim resulting from the sale of merchandise or services by the Seller, any Affiliate of the Seller or any designee of the Seller to the related Mortgagor with respect to any Eligible Loan or the furnishing or failure to furnish such merchandise or services by the Seller, any Affiliate of the Seller or any designee of the Seller;
(v) the transfer of an ownership interest in any mortgage loan other than an Eligible Loan;
(vi) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of Seller (individually or as Servicer) to comply with any Registrable Transfers) free and clear of term, provision or covenant contained in this Agreement or any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, other Transfer Documents to which it is a party or to perform any claim by of its respective duties under any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security InterestEligible Loan;
(evii) the failure to have registered or filed in accordance with Net Investment exceeds the provisions hereof, or any delay in so doing, Financing Statements, Registrable Transfers or other similar instruments or documents under any applicable laws of any applicable jurisdiction with respect to the Purchased Assets or any part thereof, whether at the time of any purchase or Maximum Net Investment at any subsequent time;
(fviii) any the failure of the Seller to perform its covenantspay when due any taxes, duties including without limitation, sales, excise or obligations personal property taxes payable by the Seller in accordance connection with any of the provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under the Purchased Eligible Loans;
(gix) 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;
(x) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which a Mortgagor may be located as a result of the failure of the Seller to qualify to do business or file any notice of business activity report or any similar report; or
(xi) any action taken by the Seller, or the Servicer (if the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and Affiliate or designee of the Seller shall pay on demand (without duplicationSeller) to each in the enforcement or collection of any Eligible Loan; provided that no Indemnified Party any and all amounts necessary shall have the right to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from be indemnified hereunder (x) for its own gross negligence or wilful willful misconduct on the part as determined by a court of competent jurisdiction, (y) for any lost profits of such Indemnified Party, or (z) any claim for punitive damages claimed by such Indemnified Party against the Seller.
Appears in 1 contract
Samples: Mortgage Loan Repurchase and Servicing Agreement (PHH Corp)
Indemnities by the Seller. Without limiting any other rights that The Seller hereby agrees to indemnify each of the Purchaser or Agent, the Purchasers, their respective successors, permitted transferees and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of its Affiliates, employees, agents, successors, transferees or assigns the foregoing (each, an “"Indemnified Party”) may have hereunder or under applicable law"), the Seller hereby agreesforthwith on demand, subject to the exclusions set forth below, to indemnify each Indemnified Party from and against any and all claims, damages, losses, claims (whether on account of settlements or otherwise), liabilities and related costs and expenses, losses including reasonable attorneys, fees and liabilities disbursements (including legal costscollectively, the "Indemnified Amounts") awarded against or incurred by any of them arising out ofof or as a result of any Facility Document or the transactions contemplated thereby or the use of proceeds therefrom, including, without limitation, in respect of the ownership of an Undivided Interest or in respect of any Receivable or any Receivable Document, excluding, however, Indemnified Amounts to the extent resulting from (a) nonpayment by any Obligor of an amount due and payable with respect to a Receivable unless such nonpayment results from a dispute, claim, offset or defense described in Section 14.1(vi) or the noncompliance with applicable laws, rules or regulations described in Section 14.1(iii), (b) negligence or willful misconduct on the part of such Indemnified Party or (c) disputes between assigning Purchasers and Assignee Purchasers, or disputes between selling Purchasers and Participants, if such disputes relate solely to the conduct of such Persons and not to the failure of the Seller or the Master Servicer to perform any Facility Document. Without limiting the foregoing, the Seller shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from any of the following (all of the foregoing being collectively referred to as “Indemnified Amounts”):from:
(ai) subject to Section 2.3 hereof, the failure transfer by the Seller of any Purchased Loan to meet the Eligibility Criteria as of the date of the initial purchase or its Purchase Date, as the case may beinterest in any Receivable other than an Undivided Interest;
(bii) subject to Section 2.3 hereof, the failure breach of 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 any Facility Document, any report or settlement statement or any other Purchase Document to information or report delivered by the Seller or the Servicer pursuant thereto, which shall have been true and correct false or incorrect when made or deemed made;
(ciii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to the servicing, administration, enforcement or other dealing with any Purchased Loans; Receivable or the failure related Receivable Documents, or the nonconformity of any Purchased Loans to conform to Receivable or the related Receivable Documents with any such applicable law, rule or regulation;
(div) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration by Purchasers' ownership interests in the Purchaser of any Registrable Transfers) Undivided Interests, free and clear of any Adverse Claim Lien (other than Permitted Encumbrances on the Mortgaged Properties and any Lien arising solely as a Permitted Security result of an act of the Purchasers or the Agent, whether existing at the time of the Purchase of such Undivided Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, at any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security Interesttime thereafter);
(ev) the failure to have registered or filed in accordance with the provisions hereoffile, or any delay in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any the UCC or other applicable laws of any applicable jurisdiction with respect to the Purchased Assets any Receivable, all or any part thereof, of the Assigned Collateral whether at the time of any purchase Purchase or at any subsequent time;
(fvi) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the obligor to the payment of any Receivable (including, without limitation, a defense based on the related Receivable or Receivable Documents not being the legal, valid and binding obligations of such obligor enforceable against it in accordance with its respective terms), or any other claim resulting from the sale of the services or goods related to such Receivable or the furnishing or failure to furnish such services or goods;
(vii) any failure of the Seller Seller, as the Servicer or otherwise, to perform its covenants, duties or obligations in accordance with the provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under the Purchased Loans;Article 10; and
(gviii) any failure Tax, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of any Undivided Interest, or other interest in the Assigned Collateral or Facility Documents other than Taxes upon or measured by net income, gross receipts or profits of the Indemnified Party; indemnification in respect of any such amounts shall be in an amount necessary to make the Indemnified Party whole after taking into account any tax consequences to the Indemnified Party of the receipt of the indemnity provided hereunder or of any refund of any Tax previously indemnified hereunder, including the effect of such tax or refund on the amount of tax measured by net income, gross receipts or profits which is or was payable by the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part of such Indemnified Party. The indemnities provided herein shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Receivables Transfer Agreement (Trendwest Resorts Inc)
Indemnities by the Seller. Without limiting any other rights that Subject to the Purchaser or any terms and conditions of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable lawthis Agreement, the Seller hereby agreesshall defend, subject to indemnify and hold harmless the exclusions set forth below, to indemnify each Indemnified Party Purchaser Indemnitees from and against any and an amount equal to 49% of all claims, damages, expenses, losses and liabilities (including legal costs) Damages arising out of, relating to of or resulting from any of the following (all of the foregoing being collectively referred to as “Indemnified Amounts”):from:
(a) subject Claims or losses asserted against the Company or any Subsidiary by any employee seconded, dispatched or under temporary contract with the Company from Seller or any Seller-Related Company during the period from the JV Formation Date prior to Section 2.3 hereofthe Closing, the failure and relating to any alleged violation of any Purchased Loan Applicable Law pertaining to meet labor relations and employment matters; and
(b) Any accounts receivable from [*], whether billed or unbilled, outstanding as of the Eligibility Criteria Closing for products or services provided by the Company or any Subsidiary and delivered to [*] prior to the Closing and which relate to the contracts identified on Schedule 11.3(b) that has not been paid as of the date three (3) years from the Closing Date (the “[*]”). Notwithstanding anything herein to the contrary, (i) the Seller’s indemnification obligations in respect of a claim arising under Section 11.3(b) (the initial purchase or its Purchase “Seller’s [*] Indemnification”) will become effective only after the date three (3) years from the Closing Date, ; (ii) as a condition to the case may be;
(b) subject to Section 2.3 hereofSeller’s [*] Indemnification obligation, the failure Purchaser and/or the Company must, prior to seeking any indemnification from the Seller, prosecute to completion a lawsuit for the collection of any representation overdue or warranty unpaid [*]; (iii) the Seller shall have no indemnification obligations for claims arising under this Section 11.3(b) (1) for any uncollected [*] which the Purchaser, the Company or statement made any Subsidiary has waived, compromised or deemed made reduced pursuant to an effort, or an agreement with [*], to obtain new business from [*] or to maintain or not damage its business relationship with [*], or (2) for any [*] to the extent [*] is ultimately determined to have reasonably withheld payment by reason of a technical flaw, defect or other failure in the product or service provided by the Seller (Company or any of its officers)Subsidiary, under which failure has not been corrected or in connection with this Agreement or any other Purchase Document to have been true otherwise resolved; and correct when made;
(civ) the failure by Purchaser shall provide to the Seller to comply with any applicable law, rule or regulation periodic updates with respect to the servicingcollection of the [*], administrationincluding all payments by [*] or any off-sets, enforcement discharge or other dealing with any Purchased Loans; or the failure of any Purchased Loans to conform to any such applicable law, rule or regulation;
(d) the failure to sell, assign, transfer and convey deductions relating to the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration [*] by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security Interest;
(e) the failure to have registered or filed in accordance with the provisions hereof, or any delay in so doing, Financing Statements, Registrable Transfers or other similar instruments or documents under any applicable laws of any applicable jurisdiction with respect to the Purchased Assets or any part thereof, whether at the time of any purchase or at any subsequent time;
(f) any failure of the Seller to perform its covenants, duties or obligations in accordance with the provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under the Purchased Loans;
(g) any failure by the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3Company, and the Seller shall be entitled to conduct audits on reasonable notice and request to determine the accuracy of such information provided by the Purchaser. The Seller shall be obligated to reimburse the Purchaser and/or the Company for any Action brought pursuant to this Section 11.3(b)(ii) above as follows:
(1) The Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any 49% of the foregoing providedreasonable fees and expenses for prosecuting such lawsuit only up to an amount equal to 49% of the amount Note: [*] indicates material that has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment. actually paid to the Company as a result of the lawsuit or compromised settlement; and
(2) The Seller shall pay 49% of any difference between the amount actually paid as a result of action taken pursuant to Section 11.3(b)(ii)and the amount of the applicable [*], howeverif the amount awarded or paid is lower than the [*] amount. In conjunction with the purchase and sale of the Remaining Shares pursuant to Section 12.4 or 12.5 below, the Purchaser and/or the Company shall calculate and provide written notice to the Seller of the specific amount of uncollected and outstanding [*] at the time. If, at the time of such purchase and sale of the Remaining Shares, or at any time thereafter, all or any portion of the [*] remains outstanding, and an event or events shall occur which have a Seller Material Adverse Effect, upon thirty (30) days written notice from the Purchaser, the Seller shall deliver to the Purchaser a letter of credit to be issued by a bank reasonably acceptable to the Purchaser which unconditionally guarantees to the Purchaser the payment of 49% of the amount of any then outstanding [*], which letter of credit shall remain outstanding until the date Seller’s indemnity obligations under Section 11.3(b) are satisfied in full. However, the Purchaser agrees that the foregoing obligation of indemnification Seller shall not include Indemnified Amounts have no obligations with respect to the extent resulting from gross negligence [*], under this Section 11.3(b) or wilful misconduct on otherwise of the part Agreement (and any obligation to provide or maintain a letter of such Indemnified Partycredit, as provided in this section), in the event and as of the date that the [*] have been paid in full and are no longer outstanding.
Appears in 1 contract
Indemnities by the Seller. Without limiting any other rights that the Administrative Agent, the Purchaser Agent, the Conduit Purchasers (including any related financing conduit if any such Conduit Purchaser funds itself through another issuing entity), the Committed Purchasers, the Program Support Providers, any Program Manager or any of its Affiliatestheir respective officers, directors, agents, employees, agents, successors, transferees controlling Persons or assigns Affiliates of any of the foregoing (each, an “Indemnified Party”) may have hereunder hereunder, under any other Transaction Document or under applicable lawLaw, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify and hold harmless each Indemnified Party from and against any and all damages, losses, claims, damagesliabilities, deficiencies, costs, disbursements and expenses, losses including interest, penalties, amounts paid in settlement and liabilities (including legal costs) arising out of, relating to or resulting from any of the following reasonable internal and external attorneys’ fees and expenses (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any Indemnified Party (including in connection with or relating to):
(ai) subject to Section 2.3 hereofany investigation, litigation or lawsuit (actual or threatened) or order, consent decree, judgment, claim or other action of whatever sort (including the failure preparation of any Purchased Loan to meet the Eligibility Criteria as of the date of the initial purchase or its Purchase Date, as the case may be;
(b) subject to Section 2.3 hereof, the failure of any representation or warranty or statement made or deemed made by the Seller (or any of its officersdefense with respect thereto), under in each case, in any way arising out of, resulting from or in connection with related to this Agreement or any other Purchase Document to have been true and correct when madeTransaction Document, the funding or maintenance or financing, either directly or indirectly, by any Indemnified Party of the Investments made hereunder or the use of the proceeds thereof or in respect of any Collateral or any Facility Account or the enforcement, servicing, administration or collection thereof, or any other transaction contemplated hereby or thereby;
(cii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to the servicing, administration, enforcement or other dealing with any Purchased Loans; or the failure occurrence of any Purchased Loans to conform to any such applicable lawFacility Event, rule Portfolio Event, Seller Event or regulationServicer Default;
(diii) the failure to sellvest in the Seller ownership of the Portfolio Receivables, assign, transfer the Related Security with respect thereto and convey to other Collateral free of any Adverse Claims;
(iv) the Purchaser beneficial ownership in, and failure to vest in and maintain vested inthe Administrative Agent a first priority perfected ownership or security interest prior to all other interests in all of the Portfolio Receivables, the Purchaser a valid Related Security with respect thereto, the Facility Accounts and enforceable first priorityother Collateral, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim Claim;
(v) any dispute, claim, setoff or defense (other than discharge in bankruptcy) of an Obligor to the payment of any Receivable (including a Permitted Security Interest defense based on such Receivable or Adverse Claim granted by the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or in favour any other claim resulting from the sale of the Purchasermerchandise, goods or services related to such Receivable or the furnishing or failure to furnish such merchandise, goods or services or relating to collection activities with respect to such Receivable or from any breach or alleged breach of any provision of the Receivables or any Contracts related thereto restricting assignment of any Receivables; or
(vi) including, without limitation, any claim the commingling by any Governmental Authority that Transaction Party of Collections of Portfolio Receivables at any part time with any other funds, the payment of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or any Collections into an Adverse Claim of or in favour of such Governmental Authority account other than a Permitted Security Interest;
(e) the failure to have registered or filed in accordance with the provisions hereofFacility Account, or any delay in so doing, Financing Statements, Registrable Transfers failure of a bank or other similar instruments or documents under financial institution at which a Facility Account is maintained to remit any applicable laws of any applicable jurisdiction with respect to amounts held in the Purchased Assets Facility Accounts or any part thereof, related lock-boxes pursuant to applicable instructions whether at the time of any purchase or at any subsequent time;
(f) any failure by reason of the Seller to perform its covenantsexercise of setoff rights or otherwise; excluding, duties or obligations in accordance with the provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under the Purchased Loans;
however (ga) any failure by the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting that such Indemnified Amounts resulted from gross negligence the negligence, fraud or wilful misconduct on the part of such Indemnified Party, (b) recourse (except as otherwise specifically provided in this Agreement or any other Transaction Document) for Uncollectible Portfolio Receivables and Related Security with respect thereto, (c) any Excluded Taxes, and (d) any Indemnified Amount to the extent the same has been fully and finally paid in cash to such Indemnified Party pursuant to any other provision of this Agreement or any other Transaction Document.
Appears in 1 contract
Samples: Securitization Agreement (Bunge LTD)
Indemnities by the Seller. Without limiting any other rights that the Purchaser or which any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) Affected Party may have hereunder or under applicable lawlaw (including, without limitation, the right to recover damages for breach of contract), the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify any Purchaser, the Program Agent, each Managing Agent, the Servicer (if not an Affiliate of the Seller) and any Liquidity Provider (the "Indemnified Party Parties"), from and against any and all damages, losses, claims, damages, liabilities and related costs and expenses, losses including reasonable attorneys' fees and liabilities (including legal costs) arising out of, relating to or resulting from any of the following disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”):"), awarded against or incurred by such Indemnified Party to the extent relating to or arising from or as a result of this Agreement or the acquisition by a Purchaser of a Purchased Interest. Without limiting the generality of the foregoing indemnification, the Seller shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from any of the following:
(ai) subject to Section 2.3 hereof, the failure transfer of an interest in any Purchased Loan to meet the Eligibility Criteria as of the date of the initial purchase or its Purchase Date, as the case may beTransferred Receivable other than an Eligible Receivable;
(bii) subject to Section 2.3 hereof, the failure of 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 or any other Purchase Facility Document to which it is a party which shall have been true and correct false or incorrect in any respect when made or deemed made;
(ciii) the failure by the Seller to comply with any term, provision or covenant contained in this Agreement, the Sale Agreement or any other Facility Document to which it is party or with any applicable law, rule or regulation with respect to any Transferred Receivable, the servicingrelated Contract, administration, enforcement or other dealing with any Purchased Loans; or the failure Related Security, or the nonconformity of any Purchased Loans to conform to Transferred Receivable, the related Contract or the Related Security with any such applicable law, rule or regulation;
(div) any Adverse Claim attaching to any Transferred Receivable or any Related Security or Collections with respect thereto, whether existing at the time that such Transferred Receivable initially arose or at any time thereafter;
(v) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with services the provision of which gave rise to or are the subject of any Transferred Receivable or Contract;
(vi) the failure to sellpay when due any taxes, assignincluding, transfer and convey to the Purchaser beneficial ownership inwithout limitation, and to vest in and maintain vested insales, the Purchaser a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration excise or personal property taxes payable by the Purchaser Seller, ATTWS, AWRC or any Originator in connection with the Receivables Assets;
(vii) the payment by such Indemnified Party of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) taxes, including, without limitation, any claim taxes imposed by any Governmental Authority that any part of the Purchased Assets consisting of jurisdiction on amounts payable and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, to the extent caused by the related Borrowers constitute the property Seller's actions or failure to act in breach of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security Interestthis Agreement;
(eviii) the failure to have registered vest and maintain vested in the Program Agent or filed to transfer to the Program Agent, on behalf of the Purchasers and the Liquidity Providers, a first priority perfected ownership interest in accordance the Transferred Receivables, together with all Collections and Related Security, free and clear of any Lien except a Lien in favor of any Affected Party, whether existing at the provisions hereoftime such Transferred Receivable arose or at any time thereafter;
(ix) the failure to file, or any delay in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any the applicable UCC or other applicable laws of any applicable jurisdiction naming the Seller as "Debtor" with respect to the Purchased Assets or any part thereof, whether at the time of any purchase or at any subsequent timeReceivables Assets;
(fx) any dispute, claim, offset or defense (other than as a result of the bankruptcy or insolvency of the related Obligor) of an Obligor to the payment of any Transferred Receivable (including, without limitation, a defense based on such Transferred Receivable not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of services related to such Transferred Receivable or the furnishing or failure to furnish such services (other than as a result of the bankruptcy or insolvency of the related Obligor);
(xi) the commingling of Collections with any other funds of the Seller, any Affiliate of the Seller to perform its covenants, duties or obligations in accordance with the provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under the Purchased LoansPerson;
(gxii) any failure by the Seller to give reasonably equivalent value to AWRC or its assignee any Selling Originator in consideration for the transfer by AWRC or such Selling Originator, as applicable, to repurchase the Seller of any Purchased Loan Transferred Receivables, or any attempt by any Person to void any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision or the Bankruptcy Code;
(xiii) the failure of any Lock-Box Processor or Lock-Box Bank to remit any amounts or items of payment held in a Lock-Box Account or in a Lock-Box pursuant to Section 2.3the instructions of the Program Agent given in accordance with this Agreement, and the applicable Lock-Box Agreement or the other Facility Documents, whether by reason of the exercise of setoff rights or otherwise;
(xiv) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of purchases made pursuant to this Agreement or any other Facility Document delivered hereunder or in respect of any of the Purchased Assets related hereto;
(xv) any claim brought by any Person arising from any activity by the Seller or an Affiliate of the Seller in servicing, administering or collecting any Transferred Receivable; or
(xvi) the sale by the Seller, AWRC or any Originator of any Receivable in violation of any applicable law, rule or regulation; provided, that the Seller shall pay on demand (without duplication) not be required to each indemnify any Indemnified Party to the extent of any and all amounts necessary to indemnify (w) resulting from the gross negligence or willful misconduct of such Indemnified Party from and against or any and all Indemnified Amounts arising out of, relating to or resulting from, any of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part member of such Indemnified Party's Purchase Group, or (x) constituting recourse for the lack of creditworthiness of an Obligor or the failure of an Obligor to pay a Transferred Receivable due to bankruptcy, insolvency or the financial inability of such Obligor to pay such Transferred Receivable, or (y) constituting net income taxes that are imposed by the United States or franchise taxes or net income taxes that are imposed on such Indemnified Party by the state or foreign jurisdiction under the laws of which such Indemnified Party is organized or in which it is otherwise doing business or any political subdivision thereof, arising out of or as a result of this Agreement or the ownership of Purchased Interests or in respect of any Transferred Receivable or any Contract, or (z) which other provisions of this Agreement expressly provide are not payable by the Seller hereunder. Any amounts subject to the indemnification provisions of this Section 8.01 shall be paid by the Seller to the related Indemnified Party within five (5) Business Days following demand therefor.
Appears in 1 contract
Samples: Receivables Purchase Agreement (At&t Wireless Services Inc)
Indemnities by the Seller. Without limiting any other rights that the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “CMF Indemnified Party”) Party may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify ARSC and each of its successors, permitted transferees and assigns, and all officers, directors, shareholders, controlling Persons, employees and agents of any of the foregoing (each of the foregoing Persons, a “CMF Indemnified Party Party”), from and against any and all claims, damages, expenseslosses, losses and claims (whether on account of settlements or otherwise), actions, suits, demands, judgments, liabilities (including legal costspenalties), obligations or disbursements of any kind or nature and related costs and expenses (including reasonable attorneys’ fees and disbursements) awarded against or incurred by any of them, arising out of, relating to of or resulting from as a result of any of the following (all of the foregoing being collectively referred to as foregoing, collectively, “CMF Indemnified AmountsLosses”):
(a) subject any representation or warranty made by the Seller under any of the Transaction Documents, any Daily Seller Report or any other information or report delivered by the Seller with respect to the Seller or the ARSC Purchased Assets, having been untrue or incorrect in any respect when made or deemed to have been made; provided, however, that the Seller’s obligation to make a CMF Noncomplying Asset Adjustment pursuant to Section 2.3 hereof, 4.3(a) with respect to any representation made in Section 6.1(l) as to Eligible Receivables having been incorrect when made shall be the failure of any Purchased Loan only remedy available to meet the Eligibility Criteria as of the date of the initial purchase ARSC or its Purchase Date, as the case may beassignees relating to such incorrect representation;
(b) subject to Section 2.3 hereof, the failure of 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 or any other Purchase Document to have been true and correct when made;
(c) the failure by the Seller to comply with any material applicable law, rule or regulation applicable to the Seller with respect to the servicing, administration, enforcement any ARSC Purchased Asset or other dealing any failure of a ARSC Purchased Asset to comply with any Purchased Loans; or the failure of any Purchased Loans to conform to any such applicable law, rule or regulationregulation as of the date of the sale of such ARSC Purchased Asset hereunder;
(c) the failure to vest and maintain in ARSC a valid ownership or security interest in the ARSC Purchased Assets, free and clear of any Lien arising through the Seller or anyone claiming through or under the Seller (including without limitation any such failure arising from a circumstance described in the definition of Permitted Exceptions);
(d) the any failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part Seller to perform its duties or obligations in accordance with the provisions of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of Transaction Documents or are otherwise subject any Contract, in each case to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than which it is a Permitted Security Interestparty;
(e) the failure to have registered or filed in accordance with the provisions hereoffile, or any delay in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any applicable laws the UCC of any applicable jurisdiction or other applicable laws with respect to the transfer of any ARSC Purchased Assets or any part thereofto ARSC, whether at the time of any purchase sale or at any subsequent time;
(f) any the failure of by the Seller to perform its covenantspay when due any taxes owing by it (including sales, duties excise or obligations property taxes) payable in connection with the ARSC Purchased Assets, other than any such taxes, assessments or charges that are being diligently contested in good faith by appropriate proceedings, for which adequate reserves in accordance with the provisions of this Agreement or GAAP have been set aside on its books and that have not given rise to any Liens (other Purchase Document or to perform its covenants, duties or obligations under the Purchased Loansthan Permitted Liens);
(g) any failure reduction in the Unpaid Balance of any CMF Receivable included in the ARSC Purchased Assets as a result of (i) any cash discount or any adjustment by the Seller or its assignee any Affiliate of the Seller (other than CMSC, the Issuer or ARSC), (ii) any offsetting account payable of the Seller to repurchase an Obligor, (iii) a set-off in respect of any Purchased Loan claim by, or defense or credit of, the related Obligor against the Seller or any Affiliate of the Seller (other than CMSC, the Issuer or ARSC) (whether such claim, defense or credit arises out of the same or a related or an unrelated transaction) or (iv) the obligation of the Seller to pay to the related Obligor any rebate or refund;
(h) any product liability or personal injury claim in connection with the service which is the subject of any CMF Receivable or CMF Related Property; and
(i) any investigation, litigation or proceeding related to any use by the Seller of the proceeds of any Purchase made hereunder. Notwithstanding anything to the contrary in this Agreement, any representations, warranties and covenants made by the Seller in this Agreement or the other Transaction Documents that are qualified by or limited to events or circumstances that have, or are reasonably likely to have, given rise to a Material Adverse Effect, shall (solely for purposes of the indemnification obligations set forth in this Section 10.1) be deemed not to be so qualified or limited. Notwithstanding the foregoing, no indemnification payments shall be payable by the Seller pursuant to this Section 2.3, and 10.1 until all amounts owing by the Seller shall pay on demand (without duplication) to each Indemnified Party any Issuer under the Indenture have been paid in full and all amounts necessary payable by the Seller to indemnify such Indemnified Party from CMSC under the CMF Subordinated Note have been paid in full. Notwithstanding the foregoing (and against any and all Indemnified Amounts arising out ofwith respect to clause (ii) below, relating without prejudice to the rights that ARSC may have pursuant to the other provisions of this Agreement or resulting from, the provisions of any of the foregoing providedother Transaction Documents), however, that the foregoing obligation of indemnification in no event shall not include any CMF Indemnified Amounts to the extent Party be indemnified for any CMF Indemnified Losses (i) resulting from gross negligence or wilful willful misconduct on the part of such CMF Indemnified Party, (ii) to the extent the same includes losses in respect of ARSC Purchased Assets and reimbursement therefor that would constitute credit recourse to the Seller for the amount of any ARSC Purchased Asset not paid by the related Obligor or (iii) resulting from the action or omission of the Servicer. If for any reason the indemnification provided in this Section 10.1 is unavailable to a CMF Indemnified Party or is insufficient to hold a CMF Indemnified Party harmless, then the Seller shall contribute to the maximum amount payable or paid to such CMF 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 CMF Indemnified Party on the one hand and the Seller on the other hand, but also the relative fault of such CMF Indemnified Party and the Seller, and any other relevant equitable considerations.
Appears in 1 contract
Indemnities by the Seller. Without limiting any other rights that which the Purchaser Administrative Agent or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) the Owners may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify each the Purchaser, the Administrative Agent, the APA Purchasers and the CP Dealers and any successors and permitted assigns and their respective officers, directors and employees (collectively, "Indemnified Party Parties"), from and against any and all damages, losses, claims, damagesliabilities, costs and expenses, losses and liabilities including, without limitation, reasonable attorneys' fees (including legal costs) arising out of, relating to or resulting from any which such attorneys may be employees of the following APA Purchasers and the CP Dealers or the Administrative Agent, as applicable) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”):"), arising out of or in connection with:
(ai) subject to Section 2.3 hereofany dispute, action, suit, litigation or proceeding arising out of or as a result of (x) this Agreement, the failure other Transfer Documents, the ownership or maintenance by the Administrative Agent, the Purchaser or any APA Purchaser of the Eligible Loans, (y) the use of proceeds of Transfers by the Seller, or (z) any Eligible Loan; provided that no Indemnified Party shall have the right to be indemnified under this paragraph (i) in respect of any Purchased Loan litigation instituted by (x) any person (a "Participant") participating in the interest of any APA Purchaser under the Revolving Asset Purchase Agreement against any APA Purchaser or the Agent, (y) any APA Purchaser against any Participant, any APA Purchaser or the Agent, or (z) any holder of any security of any APA Purchaser (in its capacity as such) against any APA Purchaser, to meet the Eligibility Criteria as extent any such litigation does not arise out of any misconduct (alleged in good faith by such APA Purchaser) by or on behalf of the date of the initial purchase or its Purchase Date, as the case may be;Seller.
(bii) subject to Section 2.3 hereof, the failure of any representation or warranty (other than a representation or statement made or deemed warranty in Section 3.2 hereof) made by the Seller (including, in its capacity as the Servicer) or any officers of the Seller (including, in its officers), capacity as the Servicer) under or in connection with this Agreement Agreement, any of the other Transfer Documents, any Servicer Report or any other Purchase Document to information or report delivered by the Seller or the Servicer pursuant hereto, which shall have been true and correct false or incorrect in any material respect when made or deemed made;
(ciii) the failure by the Seller (including, in its capacity as the Servicer) to comply with any applicable law, rule or regulation with respect to the servicing, administration, enforcement or other dealing with any Purchased Loans; Eligible Loan or the failure nonconformity of any Purchased Loans to conform to Eligible Loan with any such applicable law, rule or regulation;
(div) any claim resulting from the sale of merchandise or services by the Seller, any Affiliate of the Seller or any designee of the Seller to the related Mortgagor with respect to any Eligible Loan or the furnishing or failure to furnish such merchandise or services by the Seller, any Affiliate of the Seller or any designee of the Seller;
(v) the transfer of an ownership interest in any mortgage loan other than an Eligible Loan;
(vi) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of Seller (individually or as Servicer) to comply with any Registrable Transfers) free and clear of term, provision or covenant contained in this Agreement or any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, other Transfer Documents to which it is a party or to perform any claim by of its respective duties under any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security InterestEligible Loan;
(evii) the failure to have registered or filed in accordance with Net Investment exceeds the provisions hereof, or any delay in so doing, Financing Statements, Registrable Transfers or other similar instruments or documents under any applicable laws of any applicable jurisdiction with respect to the Purchased Assets or any part thereof, whether at the time of any purchase or Maximum Net Investment at any subsequent time;
(fviii) any the failure of the Seller to perform its covenantspay when due any taxes, duties including without limitation, sales, excise or obligations personal property taxes payable by the Seller in accordance connection with any of the provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under the Purchased Eligible Loans;
(gix) 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;
(x) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which a Mortgagor may be located as a result of the failure of the Seller to qualify to do business or file any notice of business activity report or any similar report; or
(xi) any action taken by the Seller, or the Servicer (if the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and Affiliate or designee of the Seller shall pay on demand (without duplicationSeller) to each in the enforcement or collection of any Eligible Loan; provided that no Indemnified Party any and all amounts necessary shall have the right to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from be indemnified hereunder (x) for its own gross negligence or wilful willful misconduct on the part as determined by a court of competent jurisdiction, (y) for any lost profits of such Indemnified Party, or (z) any claim for punitive damages claimed by such Indemnified Party against the Seller.
Appears in 1 contract
Samples: Mortgage Loan Repurchase and Servicing Agreement (PHH Corp)
Indemnities by the Seller. (a) Without limiting any other rights that which the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) Buyer may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify each Indemnified Party the Buyer and its permitted successors and assigns (including, without limitation, Triple-A, the Collateral Agent and the Surety) and their respective officers, directors, agents and employees (each, an "INDEMNIFIED PARTY"), from and against any and all damages, losses, claims, damages, liabilities and related costs and expenses, losses including reasonable attorneys' fees and liabilities disbursements (including legal costsall of the foregoing being collectively referred to as "INDEMNIFIED AMOUNTS") arising out of, awarded against or incurred by any Indemnified Party relating to or resulting from any of the following (all excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the foregoing being collectively referred an Indemnified Party or (ii) recourse (except with respect to as “Indemnified Amounts”payment and performance obligations provided for in this Agreement) for uncollectible Receivables):
(ai) subject to Section 2.3 hereof, the failure transfer of any Purchased Loan to meet the Eligibility Criteria Receivable which was not, as of the date of the initial purchase or its Purchase DatePurchase, as the case may bean Eligible Receivable;
(bii) subject to Section 2.3 hereof, the failure of 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, any Settlement Report or any other Purchase Document to information or report delivered by the Seller pursuant hereto, which shall have been true and correct false or incorrect in any material respect when mademade or deemed made or delivered;
(ciii) the failure by the Seller (individually or as Servicer) to comply with any term, provision or covenant contained in this Agreement (other than any covenant contained in SECTION 5.04, a breach of which shall constitute an Event of Termination but shall not give rise to indemnification under this SECTION 8.01), or any agreement executed in connection with this Agreement or with any applicable law, rule or regulation with respect to any Receivable, the servicingrelated Contract, administration, enforcement or other dealing with any Purchased Loans; the Related Security or the failure other Transferred Assets, or the nonconformity of any Purchased Loans to conform to Receivable, the related Contract, the Related Security or the other Transferred Assets with any such applicable law, rule or regulation;
(div) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, in the Purchaser a valid and enforceable first priority, opposable and perfected ownership Buyer or to transfer to the Buyer an interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) Transferred Assets, free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, free and clear of any claim by any Governmental Authority that any part Permitted Encumbrance except in favor of the Purchased Assets consisting Buyer or its assignees) whether existing at the time of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour Purchase of such Governmental Authority other than a Permitted Security InterestReceivable or at any time thereafter;
(ev) the failure to have registered or filed in accordance with the provisions hereoffile, or any delay in so doingfiling (other than solely as a result of the action or inaction of the Buyer), Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any applicable laws the UCC of any applicable jurisdiction or other applicable laws against the Seller with respect to the Purchased Assets any Contract or any part thereofReceivables which are, or are purported to be, Transferred Assets, whether at the time of any purchase Purchase or at any subsequent time;
(fvi) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale or lease of the Equipment and/or services related thereto or the furnishing or failure to furnish such Equipment and/or services;
(vii) any failure of the Seller Seller, as Servicer or otherwise, to perform its covenants, duties or obligations in accordance with the provisions of this Agreement ARTICLE VI;
(viii) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with the Equipment or any other Purchase Document goods, merchandise and/or services which are the subject of any Receivable or to perform its covenants, duties or obligations under the Purchased LoansContract;
(gix) the failure to pay when due any failure taxes, including, without limitation, sales, excise or personal property taxes payable in connection with the Transferred Assets;
(x) the termination, rejection or non-assumption by the Seller of any Contract prior to the original term of such Contract, whether such rejection, early termination or its assignee to repurchase any Purchased Loan non-assumption is made pursuant to an equitable cause, statute, regulation, judicial proceeding or other applicable laws (including, without limitation, Section 2.3, 365 of the Bankruptcy Code);
(xi) the failure of the Seller and the Obligors under the Contracts to maintain casualty and liability insurance for the Equipment related to the Receivables in an amount at least equal to the Discounted Receivables Balance for all Receivables at such time;
(xii) the failure of any Lock-Box Bank to remit any funds in the Lock-Box Accounts as required hereunder; and
(xiii) the commingling of Collections of any Transferred Assets with any other funds of the Seller. Any amounts subject to the indemnification provisions of this SECTION 8.01 shall be paid by the Seller shall pay on demand (without duplication) to each the applicable Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any of within two Business Days following the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part of such Indemnified Party's demand therefor.
Appears in 1 contract
Indemnities by the Seller. Without limiting any other rights that the Purchaser or which any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) Affected Party may have hereunder or under applicable lawlaw (including, without limitation, the right to recover damages for breach of contract), the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify any Purchaser, the Program Agent, each Managing Agent, the Servicer (if not an Affiliate of the Seller) and any Liquidity Provider (the "Indemnified Party Parties"), from and against any and all damages, losses, claims, damages, liabilities and related costs and expenses, losses including reasonable attorneys' fees and liabilities (including legal costs) arising out of, relating to or resulting from any of the following disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”):"), awarded against or incurred by such Indemnified Party to the extent relating to or arising from or as a result of this Agreement or the acquisition by a Purchaser of a Purchased Interest. Without limiting the generality of the foregoing indemnification, the Seller shall indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting from any of the following:
(ai) subject to Section 2.3 hereof, the failure transfer of an interest in any Purchased Loan to meet the Eligibility Criteria as of the date of the initial purchase or its Purchase Date, as the case may beTransferred Receivable other than an Eligible Receivable;
(bii) subject to Section 2.3 hereof, the failure of 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 or any other Purchase Facility Document to which it is a party which shall have been true and correct false or incorrect in any respect when made or deemed made;
(ciii) the failure by the Seller to comply with any term, provision or covenant contained in this Agreement, the Sale Agreement or any other Facility Document to which it is party or with any applicable law, rule or regulation with respect to any Transferred Receivable, the servicingrelated Contract, administration, enforcement or other dealing with any Purchased Loans; or the failure Related Security, or the nonconformity of any Purchased Loans to conform to Transferred Receivable, the related Contract or the Related Security with any such applicable law, rule or regulation;
(div) any Adverse Claim attaching to any Transferred Receivable or any Related Security or Collections with respect thereto, whether existing at the time that such Transferred Receivable initially arose or at any time thereafter;
(v) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with services the provision of which gave rise to or are the subject of any Transferred Receivable or Contract;
(vi) the failure to sellpay when due any taxes, assignincluding, transfer and convey to the Purchaser beneficial ownership inwithout limitation, and to vest in and maintain vested insales, the Purchaser a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration excise or personal property taxes payable by the Purchaser Seller, ATTWS or any Originator in connection with the Receivables Assets;
(vii) the payment by such Indemnified Party of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) taxes, including, without limitation, any claim taxes imposed by any Governmental Authority that any part of the Purchased Assets consisting of jurisdiction on amounts payable and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, to the extent caused by the related Borrowers constitute the property Seller's actions or failure to act in breach of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security Interestthis Agreement;
(eviii) the failure to have registered vest and maintain vested in the Program Agent or filed to transfer to the Program Agent, on behalf of the Purchasers and the Liquidity Providers, a first priority perfected ownership interest in accordance the Transferred Receivables, together with all Collections and Related Security, free and clear of any Lien except a Lien in favor of any Affected Party, whether existing at the provisions hereoftime such Transferred Receivable arose or at any time thereafter;
(ix) the failure to file, or any delay in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any the applicable UCC or other applicable laws of any applicable jurisdiction naming the Seller as "Debtor" with respect to the Purchased Assets or any part thereof, whether at the time of any purchase or at any subsequent timeReceivables Assets;
(fx) any dispute, claim, offset or defense (other than as a result of the bankruptcy or insolvency of the related Obligor) of an Obligor to the payment of any Transferred Receivable (including, without limitation, a defense based on such Transferred Receivable not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of services related to such Transferred Receivable or the furnishing or failure to furnish such services (other than as a result of the bankruptcy or insolvency of the related Obligor);
(xi) the commingling of Collections with any other funds of the Seller, any Affiliate of the Seller to perform its covenants, duties or obligations in accordance with the provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under the Purchased LoansPerson;
(gxii) any failure by the Seller to give reasonably equivalent value to any Originator in consideration for the transfer by such Originator to the Seller of any Transferred Receivables, or its assignee any attempt by any Person to repurchase void any Purchased Loan such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision or the Bankruptcy Code;
(xiii) the failure of any Lock-Box Processor or Lock-Box Bank to remit any amounts or items of payment held in a Lock-Box Account or in a Lock-Box pursuant to Section 2.3the instructions of the Program Agent given in accordance with this Agreement, and the applicable Lock-Box Agreement or the other Facility Documents, whether by reason of the exercise of setoff rights or otherwise;
(xiv) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of purchases made pursuant to this Agreement or any other Facility Document delivered hereunder or in respect of any of the Purchased Assets related hereto;
(xv) any claim brought by any Person arising from any activity by the Seller or an Affiliate of the Seller in servicing, administering or collecting any Transferred Receivable; or
(xvi) the sale by the Seller or any Originator of any Receivable in violation of any applicable law, rule or regulation; provided, that the Seller shall pay on demand (without duplication) not be required to each indemnify any Indemnified Party to the extent of any and all amounts necessary to indemnify (w) resulting from the gross negligence or willful misconduct of such Indemnified Party from and against or any and all Indemnified Amounts arising out of, relating to or resulting from, any of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part member of such Indemnified Party's Purchase Group, or (x) constituting recourse for the lack of creditworthiness of an Obligor or the failure of an Obligor to pay a Transferred Receivable due to bankruptcy, insolvency or the financial inability of such Obligor to pay such Transferred Receivable, or (y) constituting net income taxes that are imposed by the United States or franchise taxes or net income taxes that are imposed on such Indemnified Party by the state or foreign jurisdiction under the laws of which such Indemnified Party is organized or in which it is otherwise doing business or any political subdivision thereof, arising out of or as a result of this Agreement or the ownership of Purchased Interests or in respect of any Transferred Receivable or any Contract, or (z) which other provisions of this Agreement expressly provide are not payable by the Seller hereunder. Any amounts subject to the indemnification provisions of this Section 8.01 shall be paid by the Seller to the related Indemnified Party within five (5) Business Days following demand therefor.
Appears in 1 contract
Samples: Receivables Purchase Agreement (At&t Wireless Services Inc)
Indemnities by the Seller. Without limiting any other rights that the Purchaser Administrator or the Issuer or any of its their respective Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”"INDEMNIFIED PARTY") may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify each Indemnified Party from and against any and all claims, damages, expenses, losses and liabilities (including legal costsLegal Costs) (all of the foregoing being collectively referred to as "INDEMNIFIED AMOUNTS") arising out of, relating to or resulting from (whether directly or indirectly), and the Seller shall pay on demand to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts relating to or resulting from, any of the following (all of the foregoing being collectively referred to as “Indemnified Amounts”):following:
(a) subject to Section 2.3 hereof, the failure of (i) any Receivable included in the calculation of the Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable, (ii) any Receivable identified as a Purchased Loan Receivable pursuant to meet the Eligibility Criteria SECTION 1.3(b) to be an Eligible Receivable as of the date of such identification, (iii) any information contained in a Portfolio Report to be true and correct, or (iv) any other information provided to the initial purchase Issuer or its Purchase Date, as the case may beAdministrator with respect to Receivables or this Agreement to be true and correct;
(b) subject to Section 2.3 hereof, the failure of any representation or warranty or written statement made or deemed made by the Seller (Seller, as Servicer or any of its officers)otherwise, under or in connection with this Agreement or any other Purchase Document to have been true and correct in all respects when made or deemed to be made;
(c) the failure by the Seller Seller, as Servicer or otherwise, to comply with any applicable law, rule or regulation with respect to the servicing, administration, enforcement or other dealing with any Purchased LoansReceivable or the related Contract; or the failure of any Purchased Loans Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(d) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser Issuer a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) Interest, free and clear of any Adverse Claim (other than a Permitted Security Interest or an Adverse Claim created or granted by or in favour of the PurchaserIssuer) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets Interest consisting of amounts payable by the related Borrowers Obligors in respect of goods and services, sales or other taxes constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security InterestAuthority;
(e) the failure to have registered or filed in accordance with the provisions hereoffiled, or any delay in so doingfiling, Financing Statements, Registrable Transfers Statements or other similar instruments or documents under any applicable laws the PPSA of any applicable jurisdiction or other applicable laws with respect to the Purchased Assets Interest or any part thereof, whether at the time of any purchase or purchase price payment or at any subsequent time, necessary or desirable to vest in the Issuer a first priority perfected security interest in the Purchased Interest free and clear of any Adverse Claim (other than any Adverse Claim created or granted by the Issuer);
(f) any Dilution or other dispute, claim, offset or defence (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Purchased Receivable (including, without limitation, a defence based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the goods or services related to such Purchased Receivable or the furnishing or failure to furnish such goods or services or relating to collection activities with respect to such Purchased 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);
(g) any failure of the Seller Seller, as Servicer or otherwise, to perform its covenants, duties or obligations in accordance with the provisions of this Agreement or any other Purchase Document hereof or to perform its covenants, duties or obligations under the Purchased LoansContracts;
(gh) any failure products liability or other claim, investigation, litigation or proceeding arising out of or in connection with merchandise, insurance or services which are the subject of any Contract;
(i) the commingling of Collections of or with respect to the Purchased Interest at any time with other funds;
(j) any Canadian, foreign, federal, provincial, state, municipal, local or other tax of any kind or nature whatsoever that may be imposed on the Administrator or the Issuer on account of any payment made under this Article 3;
(k) any Canadian, foreign, federal, provincial, state, municipal, local or other tax of any kind or nature whatsoever that may be imposed on the Issuer or the Purchased Interest (except for Taxes on the net income or profits of the Issuer and any additional taxes that result solely by virtue of an assignment to or the exercise of any rights hereunder by a non-resident of Canada) with respect to, or resulting from any delay in paying or any omission to pay, any taxes required to be paid, deducted or withheld and remitted, in connection with the execution, delivery, filing, recording and enforcement hereof and of the Transaction Documents or in connection with the consummation of the transactions (including any purchase by the Issuer of Purchased Interest or performance of the obligations contemplated hereby and thereby or under the Transaction Documents, provided that the Issuer shall first provide the Seller with reasonable documentary evidence that such taxes or its assignee payments are due and owing by the Issuer and further provided that any such gross-up shall be reduced to repurchase the extent of any Purchased Loan benefit, deduction, credit or other reduction in taxes otherwise payable by the Issuer received by or otherwise to the Issuer in respect of any such payment, as determined in the sole discretion of the Issuer;
(l) any remittance from Collections which may be required by the Minister of National Revenue pursuant to Section 2.3the EXCISE TAX ACT (Canada);
(m) any reduction in Capital as a result of the distribution of Collections pursuant to SECTION 1.4(d), and in the event that all or a portion of such distributions shall thereafter be rescinded or otherwise must be returned for any reason; or
(n) the failure of (i) the Net Receivables Pool Balance to be greater than or equal to the Required Amount, (ii) the Seller shall pay on demand (without duplicationif it is the Servicer) to each Indemnified Party any and all amounts necessary identify on the Termination Date Eligible Receivables having an aggregate Outstanding Balance at least equal to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out ofthe Required Amount, relating to or resulting from, any (iii) the aggregate Outstanding Balance of the foregoing providedPurchased Receivables to be equal to the Required Amount on the Termination Date; excluding, however, that the foregoing obligation of indemnification shall not include in each case (a) Indemnified Amounts to the extent resulting from gross negligence negligence, wilful misfeasance or wilful misconduct on the part of such Indemnified Party, (b) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables, (c) any overall 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 any political subdivision thereof or (d) any consequential, punitive or exemplary damages. At the request of the Issuer, the Seller will, at its expense, co-operate with the Issuer in any action, suit or proceeding brought by or against the Issuer relating to any of the transactions contemplated by this Agreement, any Receivable or any Contract (other than an action, suit or proceeding by the Seller against the Issuer or by the Issuer against the Seller). In addition, the Seller agrees to notify the Issuer and the Issuer agrees to notify the Seller promptly upon learning of any pending or threatened action, suit or proceeding, if the judgment or expenses of defending such action, suit or proceeding would be covered by this Section 3.1 and (except as aforesaid) to consult with the Issuer concerning the defence and prior to settlement; provided, however, that if (i) the Seller shall have acknowledged that this Section 3.1 would cover any judgment or expenses in any action, suit or proceeding, and (ii) the Seller has the financial ability to satisfy such judgment or expenses, then the Seller shall have the right, at its expense, on behalf of the Issuer or otherwise, to defend such action, suit or proceeding with counsel selected by it, and shall have reasonable discretion as to whether to litigate, appeal or enter into an exclusively monetary settlement.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Stone Container Corp)
Indemnities by the Seller. Without limiting any other rights that which the Purchaser may have hereunder or any under applicable Law, each of the Sellers hereby agree to indemnify the Purchaser and its Affiliates, employees, agents, successors, assigns and transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, to indemnify each Indemnified Party from and against any and all claims, damages, losses, liabilities and related costs and expenses, losses including reasonable attorneys’ fees and liabilities (including legal costs) arising out of, relating to or resulting from any of the following disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”):), awarded against or incurred by any Indemnified Party arising out of or as a result of this Agreement or the Purchase or contribution of any Transferred Receivables or in respect of any Transferred Receivable or any Contract, including, without limitation, arising out of or as a result of:
(ai) subject to Section 2.3 hereof, the failure characterization in any Seller Report or other statement made by such Seller of any Purchased Loan to meet the Eligibility Criteria Transferred Receivable as an Eligible Receivable which is not an Eligible Receivable as of the date of the initial purchase such Seller Report or its Purchase Date, as the case may bestatement;
(bii) subject to Section 2.3 hereof, the failure of any representation or warranty or statement made or deemed made by the such Seller (or any of its officers), ) under or in connection with this Agreement or any other Purchase Document to Agreement, which shall have been true and correct incorrect in any material respect when made;
(ciii) the failure by the such Seller to comply with any applicable law, rule or regulation Law with respect to any Transferred Receivable or the servicing, administration, enforcement or other dealing with any Purchased Loansrelated Contract; or the failure of any Purchased Loans Transferred Receivable or the related Contract to conform to any such applicable law, rule or regulationLaw;
(div) the failure to sell, assign, transfer and convey to vest in the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and perfected absolute ownership interest in the Purchased Assets (including upon registration by Receivables that are, or that purport to be, the Purchaser subject of any Registrable Transfers) a Purchase or contribution under this Agreement and the Related Security and Collections in respect thereof, free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour those identified on Schedule VI of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security InterestRFA;
(ev) the failure of such Seller to have registered or filed in accordance with the provisions hereoffiled, or any delay in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any applicable laws the UCC of any applicable jurisdiction or other applicable Law with respect to any Receivables that are, or that purport to be, the Purchased Assets subject of a Purchase or any part contribution under this Agreement and the Related Security and Collections in respect thereof, whether at the time of any purchase Purchase or contribution or at any subsequent time;
(fvi) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable that is, or that purports to be, the subject of a Purchase or contribution under this Agreement (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services or relating to collection activities with respect to such Receivable or any Contract related thereto (if such collection activities were performed by the Herc Seller acting as Collection Agent or any of its Affiliates or by any agent or independent contractor retained by such Seller or any of its Affiliates);
(vii) any products liability, environmental or other claim by an Obligor or other third party arising out of or in connection with merchandise, or services which are the subject of any Receivable or the related Contract;
(viii) the commingling of Collections of Transferred Receivables by such Seller at any time with other funds;
(ix) 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 (including, without limitation, in connection with the preparation of a defense or appearing as a third party witness in connection therewith and regardless of whether such investigation, litigation or proceeding is brought by such Seller, an Indemnified Party or any other Person or an Indemnified Party is otherwise a party thereto);
(x) any failure of the such Seller to perform its covenants, their duties or obligations in accordance with the provisions hereof or under the Contracts;
(xi) any failure or delay of such Seller in providing any Obligor with an invoice or other evidence of indebtedness;
(xii) any Collection Agent Fees or other costs and expenses payable to any replacement Collection Agent, to the extent in excess of the Collection Agent Fees payable to the Herc Seller hereunder;
(xiii) any claim brought by any Person other than an Indemnified Party arising from any activity by such Seller or any Affiliate of such 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 collectability or payment of the Transferred Receivables and (ii) that nothing in this Section 8.01 shall require the Sellers 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 other Purchase Document Transferred Receivable or to perform its covenants, duties or obligations under the Purchased Loans;
(g) any failure by the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part of such Indemnified PartyContract.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Herc Holdings Inc)
Indemnities by the Seller. (a) Without limiting any other rights that the Purchaser Purchaser, the Administrative Agent or any director, officer, employee or agent of its Affiliates, employees, agents, successors, transferees or assigns such party (each, each an “Indemnified Party”"INDEMNIFIED PARTY") may have hereunder hereunder, or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify each Indemnified Party from and against any and all claims, losses, liabilities, obligations, damages, expensespenalties, losses actions, judgments, suits, and liabilities related costs and expenses of any nature whatsoever (including reasonable legal costsfees and disbursements) (other than taxes imposed or measured by the net income of the Purchaser or any Administrative Agent in the jurisdiction in which such party has its principal office), which may be imposed on, incurred by or asserted against an Indemnified Party in any way arising out of, of or relating to or resulting from any breach of the following Seller's obligations under this Agreement, excluding, however, Indemnified Amounts to the extent resulting solely from gross negligence or willful misconduct on the part of such Indemnified Party (all of the foregoing being collectively referred to as “Indemnified Amounts”):
(a) subject to Section 2.3 hereof, the failure of any Purchased Loan to meet the Eligibility Criteria as of the date of the initial purchase "INDEMNIFIED AMOUNTS"). Without limiting or its Purchase Date, as the case may be;
(b) subject to Section 2.3 hereof, the failure of any representation or warranty or statement made or deemed made being limited by the Seller (or any of its officers)foregoing, under or in connection with this Agreement or any other Purchase Document to have been true and correct when made;
(c) the failure by the Seller to comply with any applicable law, rule or regulation with respect to the servicing, administration, enforcement or other dealing with any Purchased Loans; or the failure of any Purchased Loans to conform to any such applicable law, rule or regulation;
(d) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security Interest;
(e) the failure to have registered or filed in accordance with the provisions hereof, or any delay in so doing, Financing Statements, Registrable Transfers or other similar instruments or documents under any applicable laws of any applicable jurisdiction with respect to the Purchased Assets or any part thereof, whether at the time of any purchase or at any subsequent time;
(f) any failure of the Seller to perform its covenants, duties or obligations in accordance with the provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under the Purchased Loans;
(g) any failure by the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from:
(i) 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, any Related Document or any report or other information delivered by the Seller pursuant hereto or thereto which shall have been incorrect in any material respect when made or deemed made or delivered; or
(ii) 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 Receivable or its related Contract, or the nonconformity of any Pool Receivable or its related Contract with any such applicable law, rule or regulation.
(b) Any Indemnified Amounts subject to the indemnification provisions of this Section 8.1 shall be paid to the Indemnified Party within five Business Days following demand therefor.
(c) The Seller certifies that it may assign the rights of indemnity granted to it by the Originator under the Receivables Sale Agreement to the Purchaser and the Purchaser may in turn assign such rights. The Seller hereby assigns to the Purchaser such rights of indemnity. The Originator hereby acknowledges such assignment and agrees that the Purchaser may enforce such indemnities directly without joinder of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part of such Indemnified PartySeller.
Appears in 1 contract
Samples: Receivables Purchase and Servicing Agreement (Sunbeam Corp/Fl/)
Indemnities by the Seller. Without limiting any other rights that which the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable law, but without duplication, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify the Purchaser and its permitted successors and assigns and all officers, directors, agents and employees of the foregoing (each of the foregoing Persons being individually referred to herein as an "Indemnified Party Party") from and against any and all damages, losses, claims, damagesjudgments, liabilities and related costs and expenses, losses including reasonable attorneys' fees and liabilities (including legal costs) arising out ofdisbursements, awarded against or incurred by any Indemnified Party relating to or resulting from or in connection with any of the following (all collectively, the "Indemnified Losses", and each an "Indemnified Loss"), other than any such Indemnified Loss (x) constituting recourse for Receivables which are uncollectible for credit reasons or (y) which arise solely from the gross negligence or willful misconduct of the foregoing being collectively referred to as “affected Indemnified Amounts”):Party:
(ai) subject to Section 2.3 hereof, the failure sale or transfer of any Purchased Loan Noncomplying Receivable to meet the Eligibility Criteria as of the date of the initial purchase or its Purchase Date, as the case may bePurchaser pursuant hereto;
(bii) subject to Section 2.3 hereof, the failure of reliance on any representation or warranty or statement made or deemed made in writing by the Seller (or any of its officers), ) under or in connection with this Agreement Agreement, any Seller Transfer Report or any "Monthly Report" (as defined in the Indenture), or reliance on any other Purchase Document information or report delivered by the Seller or by the Master Servicer with respect to the Seller (to the extent based on information provided by the Seller) pursuant hereto, which shall have been true false, incorrect or materially misleading in any respect when made (it being agreed that the incorrectness of any such representation or warranty or the determination that any such representation or warranty was materially misleading, and correct when madethe obligations of the Seller pursuant to this clause (ii) resulting therefrom, shall in each case, be determined without giving effect to any limitation on the "knowledge," "best of knowledge" or other similar limitation on the knowledge of the Seller contained in any such representation or warranty);
(ciii) the failure by the Seller to comply with any term, provision or covenant contained in this Agreement, or any agreement executed in connection with this Agreement or with any applicable law, rule or regulation with respect to any Receivable, the servicing, administration, enforcement or other dealing with any Purchased Loans; related Settlement Purchase Agreement or the failure "Related Security" (as defined in the Indenture), or the nonconformity of any Purchased Loans to conform to Receivable, the related Settlement Purchase Agreement or the Related Security with any such applicable law, rule or regulation;
(div) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested inin the Purchaser or to transfer to the Purchaser, legal and equitable title to, and first priority perfected ownership of, the Purchaser a valid Receivables and enforceable first priorityother Transferred Assets which are, opposable and perfected ownership interest in the Purchased Assets (including upon registration or are purported to be, sold or otherwise transferred by the Purchaser of any Registrable Transfers) Seller hereunder, free and clear of any Adverse Claim Lien (other than a Permitted Security Interest or Adverse Claim granted by or Liens created in favour favor of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of Purchaser hereunder and Liens created under the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security InterestOperative Documents);
(ev) the failure to have registered or filed in accordance with the provisions hereoffile, or any delay in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any applicable laws the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables and other Transferred Assets which are, or are purported to be, sold or otherwise transferred by the Purchased Assets or any part thereofSeller hereunder, whether at the time of any purchase Purchase or at any subsequent time;
(fvi) the failure by the Seller 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;
(vii) the failure of the Seller to perform pay when due any sales taxes or other governmental fees or charges imposed in connection with the transfer of the Purchased Assets hereunder;
(viii) the failure of the Seller or any of its covenantsagents, duties employees or obligations representatives to remit to the Purchaser, Collections of Transferred Assets remitted to the Seller or any such agent, employees or representatives in accordance with the terms hereof;
(ix) the assignment by a Claimant, the Company or the Seller under a Settlement Agreement of the rights to Scheduled Payments (or any portion thereof) under a Settlement Purchase Agreement in contravention of an anti-assignment provision in such Settlement Agreement that prohibits the transfer of the rights to such Scheduled Payments (or any such thereof); and
(x) any Indemnified Loss arising under a Receivable, the Settlement Agreement underlying which was not the subject of a Qualified Assignment, to the extent such Indemnified Loss would not have been incurred had such Settlement Agreement been the subject of a Qualified Assignment (without regard to whether there may have been a different Annuity Provider had there been a Qualified Assignment and disregarding any rights against any Person which would have been an Assignee had there been a Qualified Assignment). Any Indemnified Amounts payable under this Section 7.01 shall, be paid by the Seller to the Purchaser within five (5) Business Days following the Purchaser's written demand therefor, setting forth in reasonable detail the basis for such demand. The agreements of the Seller contained in this Section 7.01 shall survive the Collection Date. In addition, in no event shall Indemnified Losses include any consequential, special or punitive damages. The provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under Section 7.01 shall survive the Purchased Loans;
(g) any failure by the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any termination of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part of such Indemnified Partythis Agreement.
Appears in 1 contract
Indemnities by the Seller. Without limiting any other rights that the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “CFC Indemnified Party”) Party may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify ARSC and each of its successors, permitted transferees and assigns, and all officers, directors, shareholders, controlling Persons, employees and agents of any of the foregoing (each of the foregoing Persons, a “CFC Indemnified Party Party”), from and against any and all claims, damages, expenseslosses, losses and claims (whether on account of settlements or otherwise), actions, suits, demands, judgments, liabilities (including legal costspenalties), obligations or disbursements of any kind or nature and related costs and expenses (including reasonable attorneys’ fees and disbursements) awarded against or incurred by any of them, arising out of, relating to of or resulting from as a result of any of the following (all of the foregoing being collectively referred to as foregoing, collectively, “CFC Indemnified AmountsLosses”):
(a) subject any representation or warranty made by the Seller under any of the Transaction Documents, any Daily Seller Report or any other information or report delivered by the Seller with respect to the Seller or the ARSC Purchased Assets, having been untrue or incorrect in any respect when made or deemed to have been made; provided, however, that the Seller’s obligation to make a CFC Noncomplying Asset Adjustment pursuant to Section 2.3 hereof, 4.3(a) with respect to any representation made in Section 6.1(l) as to Eligible Receivables having been incorrect when made shall be the failure of any Purchased Loan only remedy available to meet the Eligibility Criteria as of the date of the initial purchase ARSC or its Purchase Date, as the case may beassignees relating to such incorrect representation;
(b) subject to Section 2.3 hereof, the failure of 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 or any other Purchase Document to have been true and correct when made;
(c) the failure by the Seller to comply with any material applicable law, rule or regulation applicable to the Seller with respect to the servicing, administration, enforcement any ARSC Purchased Asset or other dealing any failure of a ARSC Purchased Asset to comply with any Purchased Loans; or the failure of any Purchased Loans to conform to any such applicable law, rule or regulationregulation as of the date of the sale of such ARSC Purchased Asset hereunder;
(c) the failure to vest and maintain in ARSC a valid ownership or security interest in the ARSC Purchased Assets, free and clear of any Lien arising through the Seller or anyone claiming through or under the Seller (including without limitation any such failure arising from a circumstance described in the definition of Permitted Exceptions);
(d) the any failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part Seller to perform its duties or obligations in accordance with the provisions of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of Transaction Documents or are otherwise subject any Contract, in each case to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than which it is a Permitted Security Interestparty;
(e) the failure to have registered or filed in accordance with the provisions hereoffile, or any delay in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any applicable laws the UCC of any applicable jurisdiction or other applicable laws with respect to the transfer of any ARSC Purchased Assets or any part thereofto ARSC, whether at the time of any purchase sale or at any subsequent time;
(f) any the failure of by the Seller to perform its covenantspay when due any taxes owing by it (including sales, duties excise or obligations property taxes) payable in connection with the ARSC Purchased Assets, other than any such taxes, assessments or charges that are being diligently contested in good faith by appropriate proceedings, for which adequate reserves in accordance with the provisions of this Agreement or GAAP have been set aside on its books and that have not given rise to any Liens (other Purchase Document or to perform its covenants, duties or obligations under the Purchased Loansthan Permitted Liens);
(g) any failure reduction in the Unpaid Balance of any CFC Receivable included in the ARSC Purchased Assets as a result of (i) any cash discount or any adjustment by the Seller or its assignee any Affiliate of the Seller (other than Cartus, the Issuer or ARSC), (ii) any offsetting account payable of the Seller to repurchase an Obligor, (iii) a set-off in respect of any Purchased Loan claim by, or defense or credit of, the related Obligor against the Seller or any Affiliate of the Seller (other than Cartus, the Issuer or ARSC) (whether such claim, defense or credit arises out of the same or a related or an unrelated transaction) or (iv) the obligation of the Seller to pay to the related Obligor any rebate or refund;
(h) any product liability or personal injury claim in connection with the service which is the subject of any CFC Receivable or CFC Related Property; and
(i) any investigation, litigation or proceeding related to any use by the Seller of the proceeds of any Purchase made hereunder. Notwithstanding anything to the contrary in this Agreement, any representations, warranties and covenants made by the Seller in this Agreement or the other Transaction Documents that are qualified by or limited to events or circumstances that have, or are reasonably likely to have, given rise to a Material Adverse Effect, shall (solely for purposes of the indemnification obligations set forth in this Section 10.1) be deemed not to be so qualified or limited. Notwithstanding the foregoing, no indemnification payments shall be payable by the Seller pursuant to this Section 2.3, and 10.1 until all amounts owing by the Seller shall pay on demand (without duplication) to each Indemnified Party any Issuer under the Indenture have been paid in full and all amounts necessary payable by the Seller to indemnify such Indemnified Party from Cartus under the CFC Subordinated Note have been paid in full. Notwithstanding the foregoing (and against any and all Indemnified Amounts arising out ofwith respect to clause (ii) below, relating without prejudice to the rights that ARSC may have pursuant to the other provisions of this Agreement or resulting from, the provisions of any of the foregoing providedother Transaction Documents), however, that the foregoing obligation of indemnification in no event shall not include any CFC Indemnified Amounts to the extent Party be indemnified for any CFC Indemnified Losses (i) resulting from gross negligence or wilful willful misconduct on the part of such CFC Indemnified Party, (ii) to the extent the same includes losses in respect of ARSC Purchased Assets and reimbursement therefor that would constitute credit recourse to the Seller for the amount of any ARSC Purchased Asset not paid by the related Obligor or (iii) resulting from the action or omission of the Servicer. If for any reason the indemnification provided in this Section 10.1 is unavailable to a CFC Indemnified Party or is insufficient to hold a CFC Indemnified Party harmless, then the Seller shall contribute to the maximum amount payable or paid to such CFC 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 CFC Indemnified Party on the one hand and the Seller on the other hand, but also the relative fault of such CFC Indemnified Party and the Seller, and any other relevant equitable considerations.
Appears in 1 contract
Samples: Omnibus Amendment (NRT Settlement Services of Missouri LLC)
Indemnities by the Seller. Without limiting any other rights that which the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify each the Purchaser and its assigns and transferees (each, an "Indemnified Party Party"), from and against any and all damages, claims, damageslosses, liabilities and related costs and expenses, losses including reasonable attorneys' fees and liabilities (including legal costs) arising out of, relating to or resulting from any of the following disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”):
(a) subject to Section 2.3 hereof"), awarded against or incurred by any Indemnified Party arising out of or as a result of this Agreement or the failure purchase of any Purchased Loan to meet Assets or in respect of any Purchased Asset, Participated Receivable or any Contract, including, without limitation, arising out of or as a result of:
(i) the Eligibility Criteria characterization in any Seller Report or other statement made by the Seller of any Purchased Receivable or Participated Receivable as an Eligible Receivable which is not an Eligible Receivable as of the date of the initial purchase or its Purchase Date, as the case may beon which such information was certified;
(bii) subject to Section 2.3 hereof, the failure of 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 or any other Purchase Document to Agreement, which shall have been true and correct incorrect in any material respect when made;
(ciii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to the servicing, administration, enforcement or other dealing with any Purchased LoansAsset, Participated Receivable or the related Contract; or the failure of any Purchased Loans Asset, Participated Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(div) the failure to sell, assign, transfer and convey to vest in the Purchaser beneficial absolute ownership inof the Purchased Receivables and Participation Interests that are, and or that purport to vest in and maintain vested inbe, the Purchaser subject of a valid Purchase under this Agreement and enforceable first prioritythe Related Security and Collections in respect thereof, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security InterestClaim;
(ev) the failure of the Seller to have registered or filed in accordance with the provisions hereoffiled, or any delay in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any applicable laws the UCC of any applicable jurisdiction or other applicable laws with respect to any Purchased Receivables or Participation Interests that are, or that purport to be, the Purchased Assets or any part subject of a Purchase under this Agreement and the Related Security and Collections in respect thereof, whether at the time of any purchase Purchase or at any subsequent time;
(fvi) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable that is, or that purports to be, the subject of (A) a Purchase under this Agreement, or (B) a Participation Interest purchased under this Agreement from the Seller (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 or relating to collection activities with respect to such Receivable (if such collection activities were performed by the Seller acting as Collection Agent);
(vii) any failure of the Seller to perform its covenants, duties or obligations in accordance with the provisions hereof or to perform its duties or obligations under any Contract related to a Purchased Receivable or Participated Receivable;
(viii) any products liability or other claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract related to a Purchased Receivable or Participated Receivable;
(ix) the commingling of Collections of Purchased Assets by the Seller (or a designee of the Seller), as Collection Agent or otherwise, at any time with other funds 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 by the Seller or the ownership by the Seller of Receivables, Participation Interests (and the Government Receivables with respect thereto) the Related Security, or Collections with respect thereto or in respect of any Receivable, Participation Interests (and the Government Receivables with respect thereto) Related Security or Contract;
(xi) any failure of the Seller to comply with its covenants contained in this Agreement;
(xii) any claim brought by any Person other than an Indemnified Party arising from any activity the Seller or any designee of the Seller in servicing, administering or collecting any Purchased Asset or Participated Receivable; or
(xiii) any Purchased Asset becoming (in whole or in part) a Diluted Receivable or a Diluted Participation Interest; or
(xiv) in the case of a Contract between an Originator and a PBM, where such PBM acts as an agent for Contract Payors rather than as a principal, the inability of the Program Agent, as collateral assignee pursuant to this Agreement and the other Purchase Agreements of such Contract, to enforce any Receivable arising under such contract directly (by contract or by operation of law) against such Contract Payor, except to the extent such Contract Payor is a Governmental Entity and such enforcement rights are limited by the 1972 Amendments to the Social Security Act; or
(xv) the inability of the Purchaser to exercise its rights under this Agreement to review any Contract 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. 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 Purchased Assets and (ii) that nothing in this Section 8.01 shall require the Seller to indemnify any Person (A) for Purchased Receivables and Participation Interests 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 measured by income incurred by such Person arising out of or as a result of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under the Purchased Loans;
(g) any failure by the Seller or its assignee to repurchase in respect of any Purchased Loan pursuant to Section 2.3Asset, and the Seller shall pay on demand (without duplication) to each Indemnified Party Participated Receivable or any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part of such Indemnified PartyContract.
Appears in 1 contract
Indemnities by the Seller. (a) Without limiting any other rights that which the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify each the Purchaser and its assigns and transferees (each, an "Indemnified Party Party"), from and against any and all damages, claims, damageslosses, liabilities and related costs and expenses, losses including reasonable attorneys' fees and liabilities (including legal costs) arising out of, relating to or resulting from any of the following disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”):"), awarded against or incurred by any Indemnified Party arising out of or as a result of any of the following:
(ai) subject the characterization (A) in any Borrower Report, Weekly Report, Daily Report or (B) for the purpose of inclusion of a Transferred Receivable in the Net Receivables Pool Balance in any other written statement made by the Seller to Section 2.3 hereofthe Program Agent, the failure of any Purchased Loan to meet the Eligibility Criteria Transferred Receivable as an Eligible Receivable which is not an Eligible Receivable as of the date of the initial purchase or its Purchase Date, as the case may beon which such information was certified;
(bii) subject to Section 2.3 hereof, the failure of 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 or any other Purchase Document to Transaction Document, which shall have been true and correct incorrect in any respect when made or deemed made;
(ciii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Transferred Asset or the servicing, administration, enforcement or other dealing with any Purchased Loansrelated Contract; or the failure of any Purchased Loans Transferred Asset or the related Contract to conform to any such applicable law, rule or regulation;
(div) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested inin the Purchaser absolute ownership of the Transferred Assets that are, or that purport to be, the Purchaser subject of a valid and enforceable first priorityPurchase under this Agreement, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim Claim;
(v) any dispute, claim, offset or defense (other than a Permitted Security Interest or Adverse Claim granted by or discharge in favour bankruptcy of the PurchaserObligor) of the Obligor to the payment of any Receivable that is, or that purports to be, the subject of a Purchase under this Agreement from the Seller (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 by any Governmental Authority that any part resulting from the sale of the Purchased Assets consisting of amounts payable by goods or services related to such Receivable or the related Borrowers constitute the property of furnishing or are otherwise subject failure to the ownership, control furnish such goods or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security Interestservices;
(e) the failure to have registered or filed in accordance with the provisions hereof, or any delay in so doing, Financing Statements, Registrable Transfers or other similar instruments or documents under any applicable laws of any applicable jurisdiction with respect to the Purchased Assets or any part thereof, whether at the time of any purchase or at any subsequent time;
(fvi) any failure of the Seller to perform its covenantscomply with any term, duties provision or obligations covenant contained in accordance with the provisions of this Agreement or any other Purchase Transaction Document to which it is a party or to perform its covenants, duties or obligations under the Purchased Loansany Contract related to a Transferred Receivable;
(gvii) any products liability or other claim arising out of or in connection with goods or services which are the subject of any Contract related to a Transferred Receivable originated by the Seller;
(viii) the commingling of Collections of Transferred Assets by the Seller (or a designee of the Seller), as Servicer or otherwise, at any time with other funds;
(ix) any investigation, litigation or proceeding related to this Agreement or any other Transaction Document to which the Seller is a party or the use of proceeds of Purchases by the Seller or in respect of any Transferred Asset with respect thereto;
(x) any claim brought by any Person other than an Indemnified Party arising from any activity the Seller or any designee of the Seller in servicing, administering or collecting any Transferred Asset;
(xi) the sale by the Seller of any Receivable Asset in violation of any applicable law, rule or regulation;
(xii) any Adverse Claim attaching to any Transferred Asset or any Seller Collateral with respect thereto, except a Lien created under the Transaction Documents;
(xiii) the failure to pay when due any and all Other Taxes and the payment by such Indemnified Party of Taxes;
(xiv) any failure by the Purchaser to give reasonably equivalent value to the Seller in consideration for the transfer by the Seller to the Purchaser of any Transferred Assets, or its assignee any attempt by any Person to repurchase void any Purchased Loan Purchases under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code;
(xv) the failure of any Lockbox processor or Deposit Bank to remit any amounts or items of payment held in a Lockbox or Deposit Account pursuant to Section 2.3the instructions of the Program Agent given in accordance with the Financing Agreement, the applicable Deposit Account Agreement or the other Transaction Documents, whether by reason of the exercise of setoff rights or otherwise; SECONDARY PURCHASE AGREEMENT
(xvi) the failure of the Seller to furnish accurate and complete documentation (including, without limitation, a Contract or invoice) to any Obligor; and
(xvii) any Transferred Receivable becoming (in whole or in part) a Diluted Receivable.
(b) It is expressly agreed and understood by the parties hereto (i) that the foregoing indemnification is not intended to, and shall not, constitute a guarantee of the collectibility or payment of the Transferred Assets and (ii) that nothing in this Section 6.01 shall require the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out ofPerson (A) for Transferred Receivables which are not collected, relating to not paid or resulting from, any uncollectible on account of the foregoing providedinsolvency, bankruptcy, or financial inability to pay of the applicable Obligor or (B) for damages, losses, claims or liabilities or related costs or expenses to the extent found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from such Person's gross negligence or willful misconduct. In no event, however, that shall the foregoing obligation Seller be liable for punitive damages other than arising from a third party claim.
(c) Any amounts subject to the indemnification provisions of indemnification this Section 6.01 shall be paid by the Seller to the related Indemnified Party within five (5) Business Days following demand therefor accompanied by reasonable supporting documentation with respect to such amounts. Notwithstanding anything to the contrary in this Agreement, solely for purposes of this Section 6.01, any representation, warranty or covenant qualified by materiality or the occurrence of a Material Adverse Effect shall not include be so qualified.
(d) No Indemnified Amounts Party shall have any liability (whether in contract, tort or otherwise) to the Seller or any of their security holders or creditors for or in connection with the transactions contemplated hereby, except to the extent resulting such liability is determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnified Party's gross negligence or wilful willful misconduct or breach of its obligations under the Financing Agreement. In no event, however, shall any Indemnified Party be liable on the part any theory of such Indemnified Partyliability for any special, indirect, consequential or punitive damages (including, without limitation, any loss of profits, business or anticipated savings).
Appears in 1 contract
Samples: Secondary Purchase Agreement (Hayes Lemmerz International Inc)
Indemnities by the Seller. Without limiting any other rights that which the Purchaser may have hereunder or any of under applicable Law, the Seller hereby agrees to indemnify the Purchaser and its Affiliates, employees, agents, successors, assigns and transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, to indemnify each Indemnified Party from and against any and all damages, claims, damageslosses, liabilities and related costs and expenses, losses including reasonable attorneys’ fees and liabilities (including legal costs) arising out of, relating to or resulting from any of the following disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”):), awarded against or incurred by any Indemnified Party arising out of or as a result of this Agreement or the other Transaction Documents or the Purchase or contribution of any Receivables or in respect of any such Receivable or any related Contract, including, without limitation, arising out of or as a result of:
(a) subject to Section 2.3 hereof, the failure characterization in any Servicer Report or other statement made by the Seller of any Purchased Loan to meet Receivable as an Eligible Receivable or as included in the Eligibility Criteria Net Receivables Pool Balance which is not an Eligible Receivable or should not be included in the Net Receivables Pool Balance as of the date of the initial purchase or its Purchase Date, as the case may besuch Servicer Report;
(b) subject to Section 2.3 hereof, the failure of any representation or warranty or statement made or deemed made by the Seller (or any of its officers), the Parent (including, the Parent or any of its Affiliates in the capacity as the Servicer) or any Originator (or any of their respective officers) under or in connection with this Agreement or any of the other Purchase Document to Transaction Documents, which shall have been true and correct incorrect in any material respect when made;
(c) the failure by the Seller Seller, the Parent (including, the Parent or any of its Affiliates in the capacity as the Servicer) or any Originator to comply with any applicable law, rule or regulation Law with respect to any Receivable or the servicing, administration, enforcement or other dealing with any Purchased Loansrelated Contract; or the failure of any Purchased Loans Receivable or the related Contract to conform to any such applicable law, rule Law; or regulationthe sale of any Receivable under this Agreement in violation of any applicable Law;
(d) the failure to sell, assign, transfer and convey to vest in the Purchaser beneficial absolute ownership inof the Receivables that are, and or that purport to vest in and maintain vested inbe, the Purchaser subject of a valid Purchase or contribution under this Agreement and enforceable first prioritythe Related Security and Collections in respect thereof, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security InterestClaim;
(e) the failure of the Seller to have registered or filed in accordance with the provisions hereoffiled, or any delay in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any applicable laws the UCC of any applicable jurisdiction or other applicable Laws with respect to any Receivables that are, or that purport to be, the Purchased Assets subject of a Purchase or any part contribution under this Agreement and the Related Security and Collections in respect thereof, whether at the time of any purchase Purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable that is, or that purports to be, the subject of a Purchase or contribution under this Agreement (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services or relating to collection activities with respect to such Receivable (if such collection activities were performed by the Seller acting as Servicer);
(g) any failure of the Seller Seller, as Servicer or otherwise, to perform its covenants, duties or obligations in accordance with the provisions hereof and of the other Transaction Documents or to perform its duties or obligations (if any) under any Contract related to a Receivable;
(h) any products liability or other claim arising out of or in connection with merchandise, insurance or services which are the subject of any Contract related to a Receivable;
(i) the commingling of Collections of Receivables by the Seller or a designee of the Seller, as Servicer or otherwise, at any time with other funds of the Seller or an Affiliate of the Seller;
(j) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Purchases by the Seller or the ownership by the Seller of Receivables, the Related Security, or Collections with respect thereto or in respect of any Receivable, Related Security or Contract (including, without limitation, in connection with the preparation of a defense or appearing as a third party witness in connection therewith and regardless of whether such investigation, litigation or proceeding is brought by the Seller, an Indemnified Party or any other Person or an Indemnified Party is otherwise a party thereto);
(k) any failure of the Seller to comply with its covenants contained in this Agreement or any other Transaction Document;
(l) any claim brought by any Person other than an Indemnified Party arising from any activity by the Seller or any designee of the Seller in servicing, administering or collecting any Receivable;
(m) any Receivable originated or acquired by the Seller becoming (in whole or in part) a Diluted Receivable;
(n) any failure of such Seller to pay when due any sales, excise or personal property taxes payable in connection with any of the Receivables;
(o) any action taken by such Seller or any of its Affiliates in the enforcement or collection of any Receivable; or
(p) the use of the proceeds of any Purchase by the Seller. 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 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 any other Purchase Transaction Document or to perform its covenants, duties in respect of any Receivable or obligations under the Purchased Loans;
(g) any failure by the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part of such Indemnified PartyContract.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (DST Systems Inc)
Indemnities by the Seller. Without limiting any other rights that the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify (and pay upon demand to) the Purchaser and its respective assigns, officers, directors, agents and employees (each an “Indemnified Party Party”) from and against any and all damages, losses, claims, damagestaxes, expensesliabilities, losses costs, expenses and liabilities for all other amounts payable, including reasonable attorneys’ fees (including legal costs) arising out of, relating to or resulting from any which attorneys may be employees of the following Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”):) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition by Purchaser of the Receivables including, without limitation, Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to such Seller) relating to or resulting from:
(ai) subject to Section 2.3 hereof, the failure of any Purchased Loan to meet the Eligibility Criteria as of the date of the initial purchase or its Purchase Date, as the case may be;
(b) subject to Section 2.3 hereof, the failure of any representation or warranty or statement made or deemed made by the Seller (or any officers of its officers), such Person) under or in connection with this Agreement Agreement, any other Transaction Document or any other Purchase Document information or report required to be delivered by any such Person pursuant hereto or thereto, which shall have been true and correct false or incorrect when made or deemed made;
(cii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to the servicingany Receivable or Contract related thereto, administration, enforcement or other dealing with any Purchased Loans; or the failure nonconformity of any Purchased Loans to conform to Receivable or Contract included therein with any such applicable law, rule or regulationregulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(d) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security Interest;
(e) the failure to have registered or filed in accordance with the provisions hereof, or any delay in so doing, Financing Statements, Registrable Transfers or other similar instruments or documents under any applicable laws of any applicable jurisdiction with respect to the Purchased Assets or any part thereof, whether at the time of any purchase or at any subsequent time;
(fiii) any failure of the Seller to perform its covenantsduties, duties covenants or other obligations in accordance with the provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under the Purchased LoansTransaction Document;
(giv) any environmental liability, products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(vi) the commingling of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of any Receivable purchased hereunder, the ownership of the Receivables or any other investigation, litigation or proceeding relating to Seller in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Event of Termination described in Section 7.01(f) or Section 7.01(h) of this Agreement;
(x) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Purchaser to give reasonably equivalent value to Seller hereunder in consideration of the transfer by Seller of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xi) any failure to vest and maintain vested in the Purchaser (or its assignees), or to transfer to the Purchaser (or its assignees), legal and equitable title to, and ownership of, the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Seller Transaction Documents);
(xii) the failure to have filed, or its assignee 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 repurchase any Purchased Loan pursuant to Section 2.3Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at closing or at any subsequent time;
(xiii) any action or omission by Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to which reduces or resulting from, any impairs the rights of the foregoing providedPurchaser with respect to any Receivable of such Seller or reduces the Outstanding Balance of any Receivable;
(xiv) any attempt by any Person to void any transfer of Receivables hereunder under statutory provisions or common law or equitable action;
(xv) the failure of any Receivable transferred hereunder and identified as an Eligible Receivable to be an Eligible Receivable at the time so included and identified; and
(xvi) any Dilution with respect to any Transferred Receivable. Notwithstanding the foregoing, however, it is expressly agreed and understood by the parties hereto (i) that the foregoing obligation indemnification is not intended to, and shall not, constitute a guarantee of indemnification 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 include Indemnified Amounts collected, not paid or uncollectible on account of the insolvency, bankruptcy, lack of creditworthiness or financial inability or unwillingness to pay of the applicable Obligor, (B) for damages, losses, claims or liabilities or related costs or expenses to the extent resulting found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from an Indemnified Party’s gross negligence or wilful misconduct on the part willful misconduct, or (C) for any income taxes or franchise taxes incurred by such Person arising out of such Indemnified Partyor 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 that the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) which EagleFunding may have hereunder - 50 - 56 or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify each EagleFunding and its permitted successors and assigns (including, without limitation, EagleFunding, and the Deal Agent) and their respective officers, directors, agents and employees (each, an "Indemnified Party Party"), from and against any and all damages, losses, claims, damages, liabilities and related costs and expenses, losses including reasonable attorneys' fees and liabilities disbursements (including legal costsall of the foregoing being collectively referred to as "Indemnified Amounts") arising out of, awarded against or incurred by any Indemnified Party relating to or resulting from any of the following (all excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of the foregoing being collectively referred an Indemnified Party or (ii) recourse (except with respect to as “Indemnified Amounts”payment and performance obligations provided for in this EagleFunding Purchase Agreement) for uncollectible Receivables):
(ai) subject to Section 2.3 hereof, the failure transfer of any Purchased Loan to meet the Eligibility Criteria Receivable which was not, as of the date of the initial purchase or its Receivables Purchase Date, as the case may bean Eligible Receivable;
(bii) subject to Section 2.3 hereof, the failure of any representation or warranty or statement made or deemed made by the Seller or the Originator (or any of its their respective officers), ) under or in connection with the Originator Purchase Agreement or this Agreement EagleFunding Purchase Agreement, any Settlement Report or any other Purchase Document to information or report delivered by the Seller or the Originator pursuant hereto, which shall have been true and correct false or incorrect in any material respect when mademade or deemed made or delivered;
(ciii) the failure by the Seller or the Originator (individually or as Servicer) to comply with any term, provision or covenant contained in this EagleFunding Purchase Agreement or the Originator Purchase Agreement, or any agreement executed in connection with this EagleFunding Purchase Agreement or the Originator Purchase Agreement or with any applicable law, rule or regulation with respect to the servicing, administration, enforcement or other dealing with any Purchased Loans; Receivable, the related Contract, the Related Security or the failure other Purchased Interests, or the nonconformity of any Purchased Loans to conform to Receivable, the related Contract, the Related Security or the other Purchased Interests with any such applicable law, rule or regulation;
(div) the failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and perfected in EagleFunding or to transfer to EagleFunding an ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) Interests, free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, free and clear of any claim by any Governmental Authority that any part Permitted Encumbrance except in favor of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of EagleFunding or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security Interest;its assignees)
(ev) the failure to have registered or filed in accordance with the provisions hereoffile, or any delay in so doingfiling (other than solely as a result of the action or inaction of EagleFunding), Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any applicable laws the UCC of any applicable jurisdiction or other applicable laws against the Obligor with respect to the any Contract or Receivables which are, or are purported to be, Purchased Assets or any part thereofInterests, whether at the time of any purchase Purchase or at any subsequent time;
(fvi) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Purchased Receivable (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 enforceable against it in accordance with its terms), or any other claim resulting from the sale or lease of the Equipment and/or services related thereto or the furnishing or failure to furnish such Equipment and/or services;
(vii) any failure of the Seller or the Originator, as Servicer or otherwise, to perform its covenants, duties or obligations in accordance with the provisions of this Agreement Article VI hereof or Article VI of the Originator Purchase Agreement;
(viii) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with the Equipment or any other Purchase Document goods, merchandise and/or services which are the subject of any Receivable or to perform its covenants, duties or obligations under the Purchased LoansContract;
(gix) the failure to pay when due any failure taxes, including, without limitation, sales, excise or personal property taxes payable in connection with the Purchased Interests;
(x) the termination, rejection or non-assumption by the Seller of any Contract prior to the original term of such Contract, whether such rejection, early termination or its assignee to repurchase any Purchased Loan non-assumption is made pursuant to an equitable cause, statute, regulation, judicial proceeding or other applicable laws (including, without limitation, Section 2.3365 of the Bankruptcy Code);
(xi) the failure of the Seller, the Originator and the Obligors under the Contracts to maintain casualty and liability insurance for the Equipment related to the Purchased Receivables in an amount at least equal to the Discounted Receivables Balance for such Purchased Receivables;
(xii) the failure of any Lock-Box Bank to remit any funds in the Lock-Box Accounts as required hereunder; and
(xiii) the commingling of Collections of any Transferred Assets with any other funds of the Seller. Any amounts subject to the indemnification provisions of this Section 8.01 shall be paid by the Seller shall pay on demand (without duplication) to each the applicable Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any of within two Business Days following the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part of such Indemnified Party's demand therefor.
Appears in 1 contract
Indemnities by the Seller. Without limiting any other rights that which the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify each the Purchaser and its assigns and transferees or any of their respective officers, directors, employees or advisors (each, an “Indemnified Party Party”) from and against any and all damages, claims, damageslosses, expenses, losses liabilities and liabilities related costs and expenses (including legal costsreasonable attorneys’ fees, but excluding consequential damages incurred by an Indemnified Party (it being agreed that consequential damages payable by an Indemnified Party to a third party are not excluded)) arising out of, relating to or resulting from any of the following (all of the foregoing being collectively referred to as “Indemnified Amounts”):), awarded against or incurred by any Indemnified Party arising out of or as a result of this Agreement or the purchase or contribution of any Transferred Receivables or in respect of any Transferred Receivable, including, without limitation, arising out of or as a result of:
(ai) subject to Section 2.3 hereof, the failure characterization in any Seller Report or other statement made by the Seller of any Purchased Loan to meet the Eligibility Criteria Transferred Receivable as an Eligible Receivable which is not an Eligible Receivable as of the date of the initial purchase such Seller Report or its Purchase Date, as the case may bestatement;
(bii) subject to Section 2.3 hereof, the failure of 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 or any other Purchase Document to Agreement, which shall have been true and correct incorrect in any material respect when made;
(ciii) the failure by the Seller to comply with any applicable law, rule or regulation with respect to any Transferred Receivable or the servicing, administration, enforcement or other dealing with any Purchased Loansrelated Contract; or the failure of any Purchased Loans Transferred Receivable or the related Contract to conform to any such applicable law, rule or regulation;
(div) the failure to sell, assign, transfer and convey to vest in the Purchaser beneficial absolute ownership inof the Receivables that are, and or that purport to vest in and maintain vested inbe, the Purchaser subject of a valid and enforceable first priority, opposable and perfected ownership interest in Purchase from the Purchased Assets (including upon registration Seller or contribution by the Purchaser of any Registrable Transfers) Seller under this Agreement and the Related Security and Collections in respect thereof, free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security InterestClaim;
(ev) the failure of the Seller to have registered or filed in accordance with the provisions hereoffiled, or any delay in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any applicable laws the UCC of any applicable jurisdiction with respect to any Receivables that are, or that purport to be, the Purchased Assets subject of a Purchase from the Seller or any part contribution by the Seller under this Agreement and the Related Security and Collections in respect thereof, whether at the time of any purchase such Purchase or contribution or at any subsequent time;
(fvi) any dispute, claim, offset or defense (including termination for convenience or default by a governmental Obligor, but not including discharge in bankruptcy of an Obligor) of or by the Obligor to the payment of any Receivable that is, or that purports to be, the subject of a Purchase from the Seller or contribution by the Seller 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 services or relating to collection activities with respect to such Receivable (if such collection activities were performed by the Seller acting as Collection Agent);
(vii) any failure of funds or revenues to be set aside or otherwise appropriated for payment of any U.S. Government Receivable arising out of an Approved Government Contract;
(viii) any failure to obtain any acknowledgment, authorization or approval under, or provide any notice required by, the Assignment of Claims Act with respect to any Approved Government Contract;
(ix) the sale or contribution of any Receivable by the Seller in violation of applicable laws;
(x) any failure of the Seller Seller, as Collection Agent or otherwise, to perform its covenants, duties or obligations in accordance with the provisions hereof;
(xi) any products liability or other claim arising out of or in connection with merchandise or services which are the subject of any Contract;
(xii) the commingling of Collections of Transferred Receivables by the Seller or a designee of the Seller, as Collection Agent or otherwise, at any time with other funds of the Seller or an Affiliate of the Seller;
(xiii) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of Purchases or the ownership of Receivables sold or contributed by it, the Related Security, or Collections with respect thereto or in respect of any Receivable, Related Security or Contract;
(xiv) any failure of the Seller to comply with its covenants contained in this Agreement;
(xv) any Collection Agent Fees or other costs and expenses payable to any replacement Collection Agent, to the extent in excess of the Collection Agent Fees payable to the Seller hereunder; or
(xvi) 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 servicing, administering or collecting 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, franchise taxes or any other tax or fee measured by income, capital or the number of shares or other equity interests outstanding incurred by such Person arising out of or as a result of this Agreement or in respect of any other Purchase Document Transferred Receivable or to perform its covenants, duties or obligations under the Purchased Loans;
(g) any failure by the Seller or its assignee to repurchase any Purchased Loan pursuant to Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part of such Indemnified PartyContract.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Electronic Data Systems Corp /De/)
Indemnities by the Seller. Without limiting any other rights that the Purchaser or which any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) Affected Party may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify each the Purchaser, BTMU, individually and in its capacity as Agent, and any Liquidity Provider (the “Indemnified Party Parties”), from and against any and all damages, losses, claims, damages, liabilities and related costs and expenses, losses including reasonable attorneys’ fees and liabilities (including legal costs) arising out of, relating to or resulting from any of the following disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”):) awarded against or incurred by such Indemnified Party to the extent relating to or arising from any of the following:
(a) subject to Section 2.3 hereof, the failure of any Purchased Loan to meet the Eligibility Criteria as of the date of the initial purchase or its Purchase Date, as the case may be;
(b) subject to Section 2.3 hereof, the failure of reliance on any representation or warranty or statement made or deemed made by the Seller or the Servicer on its behalf (or any of its officers), ) under or in connection with this Purchase Agreement or any other Purchase Facility Document to which it is a party or on any other information delivered by the Seller (or the Servicer on its behalf) pursuant hereto or thereto that shall have been true and correct incorrect in any material respect when mademade or deemed made or delivered;
(cb) the failure by the Seller to comply with any term, provision or covenant contained in this Purchase Agreement, the Sale Agreement or any other Facility Document to which it is party or with any applicable law, rule or regulation with respect to the servicing, administration, enforcement or other dealing with any Purchased Loans; Transferred Receivable or the failure Related Security, or the nonconformity of any Purchased Loans to conform to Transferred Receivable or the Related Security with any such applicable law, rule or regulation;
(c) 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 and/or services the sale, lease or provision of which gave rise to any Transferred Receivable;
(d) the failure to sellpay when due any taxes, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts sales, excise or personal property taxes payable by the related Borrowers constitute Seller, ACCO or any Originator in connection with the property of or are otherwise subject Receivables Assets and taxes and other charges to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security Interestbe paid under Section 2.08;
(e) the failure of the Seller and the Agent to have registered a perfected Lien on any Related Security which secures the payment of a Receivable;
(f) the failure to vest and maintain vested in the Agent or filed to transfer to the Agent, on behalf of the Purchaser and the Liquidity Providers, a first priority perfected ownership or security interest in accordance with the provisions hereofTransferred Receivables (including as a result of any failure to file, or any delay in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any the UCC or other applicable laws of any applicable jurisdiction against the Seller with respect to the Purchased Assets or any part thereofReceivables Assets), together with all Collections and Related Security, free and clear of any Adverse Claim, whether existing at the time of any purchase such Receivable arose or at any subsequent time;
(f) any failure of the Seller to perform its covenants, duties or obligations in accordance with the provisions of this Agreement or any other Purchase Document or to perform its covenants, duties or obligations under the Purchased Loanstime thereafter;
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Transferred Receivable (including, without limitation, a defense based on such Transferred Receivable not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other dispute or claim resulting from the sale or lease of the goods, merchandise and/or services related to such Transferred Receivable or the furnishing or failure to furnish such goods, merchandise and/or services;
(h) the commingling of Collections at any time with other funds, whether by the Servicer, the Seller or its assignee any of their respective Affiliates;
(i) the failure of any Lock-Box Bank to repurchase remit any Purchased Loan amounts held in a Lock-Box Account pursuant to Section 2.3the instructions of the Servicer, and the Seller or the Agent, whether by reason of the exercise of setoff rights or otherwise; and
(j) the failure of any Transferred Receivable included in the Net Receivables Balance to satisfy, as of the date of such calculation, the requirements of eligibility contained in the definition of “Eligible Receivable”; provided, that the Seller shall pay on demand (without duplication) have no obligation to each indemnify any Indemnified Party for (i) any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful willful misconduct on the part of such Indemnified Party, (ii) recourse for uncollectible or uncollected Receivables or (iii) any income tax or franchise tax which is excluded from the definition of “Indemnified Taxes”, except to the extent that the incurrence of any such tax results from a breach or default by such Seller under this Purchase Agreement or any other Facility Document. Any amounts subject to the indemnification provisions of this Section 8.01 shall be paid by the Seller to the Agent within five (5) Business Days following Agent’s demand therefor, which demand shall include a statement by the Agent calculating the amount to be paid by the Seller.
Appears in 1 contract
Indemnities by the Seller. Without limiting any other rights that the Purchaser or which any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “Indemnified Party”) Affected Party may have hereunder or under applicable lawlaw (including, without limitation, the right to recover damages for breach of contract), the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify any Purchaser, CNAI, individually and in its capacity as Agent, each Managing Agent, the Servicer, if not an Affiliate of the Seller, and any Liquidity Provider (the “Indemnified Party Parties”), from and against any and all damages, losses, claims, damages, liabilities and related costs and expenses, losses including reasonable attorneys’ fees and liabilities (including legal costs) arising out of, relating to or resulting from any of the following disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”):), awarded against or incurred by such Indemnified Party to the extent relating to or arising from any of the following:
(ai) subject to Section 2.3 hereof, the failure of any Purchased Loan to meet the Eligibility Criteria as of the date of the initial purchase or its Purchase Date, as the case may be;
(b) subject to Section 2.3 hereof, the failure of 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 or any other Purchase Facility Document to which it is a party which shall have been true and correct false or incorrect in any respect when mademade or deemed made (without giving effect to the proviso set forth in Section 3.02(i));
(cii) the failure by the Seller to comply with any term, provision or covenant contained in this Agreement, the Sale Agreement or any other Facility Document to which it is party or with any applicable law, rule or regulation with respect to any Receivable, the servicingrelated Contract, administration, enforcement or other dealing with any Purchased Loans; or the failure Related Security, or the nonconformity of any Purchased Loans to conform to Receivable, the related Contract or the Related Security with any such applicable law, rule or regulation;
(diii) any Adverse Claim attaching to any Receivable or any Related Security or Collections with respect thereto, whether existing at the time that such Receivable initially arose 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 goods, merchandise and/or services the sale or provision of which gave rise to or are the subject of any Receivable or Contract;
(v) the failure to sellpay when due any taxes, assignincluding, transfer without limitation, sales, excise or personal property taxes payable by the Seller or TRW in connection with the Receivables Assets;
(vi) the payment by such Indemnified Party of taxes, including, without limitation, any taxes imposed by any jurisdiction on amounts payable and convey any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, to the Purchaser beneficial ownership in, and extent caused by the Seller’s actions or failure to act in breach of this Agreement;
(vii) the failure of the Seller to have a perfected Lien (other than a Permitted Lien) on any Related Security (except to the extent that any of the Related Security included in the Receivables Assets constitutes property a security interest in which may not be perfected by filing a financing statement under the UCC) which secures the payment of a Receivable;
(viii) the failure to vest in and maintain vested inin the Agent or to transfer to the Agent, on behalf of the Purchaser a valid Purchasers and enforceable first prioritythe Liquidity Providers, opposable and perfected an ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) Receivables, together with all Collections and Related Security, free and clear of any Adverse Claim (other than a or any Permitted Security Interest Lien except in favor of any Affected Party, whether existing at the time such Receivable arose or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, at any claim by any Governmental Authority that any part of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of or are otherwise subject to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than a Permitted Security Interesttime thereafter;
(eix) the failure to have registered or filed in accordance with the provisions hereoffile, or any delay in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any the applicable UCC or other applicable laws of any applicable jurisdiction naming the Seller as “Seller” with respect to any Receivables Assets (except to the extent that any of the Related Security included in the Receivables Assets constitutes property an ownership interest in which may not be perfected by filing a financing statement under the UCC) unless such failure results solely from the Agent’s failure to take appropriate action;
(x) any dispute, claim, offset or defense (other than as a result of the bankruptcy or insolvency of the related Obligor) of an Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the goods, merchandise and/or services related to such Receivable or the furnishing or failure to furnish such goods, merchandise and/or services (other than as a result of the bankruptcy or insolvency of the related Obligor);
(xi) the commingling of Collections with any other funds of the Seller;
(xii) any failure by the Seller to give reasonably equivalent value to TRW in consideration for the transfer by TRW to the Seller of any Receivables, or any attempt by any Person to void any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision or the Bankruptcy Code;
(xiii) the failure of any Lock-Box Bank to remit any amounts held in the Lock-Box Account pursuant to the instructions of the Agent given in accordance with this Agreement, the applicable Lock-Box Agreement and the other Facility Documents, whether by reason of the exercise of setoff rights or otherwise, unless such failure results solely from the Agent’s failure to take appropriate action;
(xiv) any investigation, litigation or proceeding related to this Agreement or any other Facility Document delivered hereunder or in respect of any of the Purchased Assets or any part thereof, whether at the time of any purchase or at any subsequent timerelated hereto;
(fxv) any failure of the Seller to perform its covenants, duties or obligations in accordance with the provisions of Article VI; and
(xvi) the failure at any time to maintain a Net Receivables Pool Balance equal to or greater than the Required Receivables Balance at such time; provided, that the Seller shall not be required to indemnify any Indemnified Parties to the extent of any amounts (1) which are determined by a court of competent jurisdiction in a final nonappealable order to have (a) resulted from the culpable negligence, bad faith or willful misconduct of the Indemnified Parties, or (b) been related to, or constitute recourse for, the lack of creditworthiness of an Obligor or the failure of an Obligor to pay a Receivable due to bankruptcy, insolvency or the financial inability of such Obligor to pay such Receivable, (2) which relate to the amounts payable to such Indemnified Party pursuant to Sections 2.06, 2.07, 2.08 or 2.09, or (3) which constitute lost profits or consequential, special or punitive damages; provided, further, that any payment made by the Seller pursuant to this Section 8.01 shall be made solely from (x) funds available from Collections to which the Seller is entitled under the Facility Documents, and (y) funds available as a result of the exercise of rights and remedies under the Sale Agreement as contemplated by Section 2.11 hereof, shall be non-recourse other than with respect to such funds, and shall not constitute a claim against the Seller or any other Purchase Document or of its Affiliates to perform its covenants, duties or obligations the extent that such funds are insufficient to make such payment. Any amounts subject to the indemnification provisions of this Section 8.01 shall be paid by the Seller to the Agent out of (1) funds available from Collections to which the Seller is entitled under the Purchased Loans;
Facility Documents, and (g2) any failure funds available to the Seller as a result of the exercise of rights and remedies under the Sale Agreement (whether by the Seller or its assignee to repurchase any Purchased Loan pursuant to the Agent in accordance with Section 2.32.11 hereof), and the Seller shall pay on within five (5) Business Days following Agent’s demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to or resulting from, any of the foregoing provided, however, that the foregoing obligation of indemnification shall not include Indemnified Amounts to the extent resulting from gross negligence or wilful misconduct on the part of such Indemnified Partytherefor.
Appears in 1 contract
Indemnities by the Seller. Without limiting any other rights that the Purchaser or any of its Affiliates, employees, agents, successors, transferees or assigns (each, an “CRC Indemnified Party”) Party may have hereunder or under applicable law, the Seller hereby agrees, subject to the exclusions set forth below, agrees to indemnify the Issuer and each of its successors, permitted transferees and assigns, and all officers, directors, shareholders, controlling Persons, employees and agents of any of the foregoing (each of the foregoing Persons, a “CRC Indemnified Party Party”), from and against any and all claims, damages, expenseslosses, losses and claims (whether on account of settlements or otherwise), actions, suits, demands, judgments, liabilities (including legal costspenalties), obligations or disbursements of any kind or nature and related costs and expenses (including reasonable attorneys’ fees and disbursements) awarded against or incurred by any of them, arising out of, relating to of or resulting from as a result of any of the following (all of the foregoing being collectively referred to as foregoing, collectively, “CRC Indemnified AmountsLosses”):
(a) subject to Section 2.3 hereof, any representation or warranty made by the failure of Seller under any Purchased Loan to meet the Eligibility Criteria as of the date of Transaction Documents, or any information or report delivered by the initial purchase Seller with respect to the Seller or its Purchase Datethe KF Purchased Assets, as the case may behaving been untrue or incorrect in any respect when made or deemed to have been made;
(b) subject to Section 2.3 hereof, the failure of 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 or any other Purchase Document to have been true and correct when made;
(c) the failure by the Seller to comply with any material applicable law, rule or regulation Requirement of Law with respect to the servicing, administration, enforcement any KF Purchased Asset or other dealing any failure of a KF Purchased Asset to comply with any such material Requirement of Law as of the date of the sale of such KF Purchased Loans; or Asset hereunder;
(c) the failure to vest and maintain in the Issuer a valid ownership or security interest in the KF Purchased Assets, free and clear of any Purchased Loans to conform to Lien arising through or under it (including without limitation any such applicable law, rule or regulationfailure arising from a circumstance described in the definition of Permitted Exceptions);
(d) the any failure to sell, assign, transfer and convey to the Purchaser beneficial ownership in, and to vest in and maintain vested in, the Purchaser a valid and enforceable first priority, opposable and perfected ownership interest in the Purchased Assets (including upon registration by the Purchaser of any Registrable Transfers) free and clear of any Adverse Claim (other than a Permitted Security Interest or Adverse Claim granted by or in favour of the Purchaser) including, without limitation, any claim by any Governmental Authority that any part Seller to perform its duties or obligations in accordance with the provisions of the Purchased Assets consisting of amounts payable by the related Borrowers constitute the property of Transaction Documents or are otherwise subject any Contract, in each case to the ownership, control or an Adverse Claim of or in favour of such Governmental Authority other than which it is a Permitted Security Interestparty;
(e) the failure to have registered or filed in accordance with the provisions hereoffile, or any delay in so doingfiling, Financing Statements, Registrable Transfers financing statements or other similar instruments or documents under any applicable laws the UCC of any applicable jurisdiction or other applicable laws with respect to the transfer of any KF Purchased Assets or any part thereofto the Issuer, whether at the time of any purchase sale or at any subsequent time;
(f) any the failure of by the Seller to perform its covenantspay when due any taxes owing by it (including without limitation sales, duties excise or obligations property taxes) payable in connection with the KF Purchased Assets, other than any such taxes, assessments or charges that are being diligently contested in good faith by appropriate proceedings, for which adequate reserves in accordance with the provisions of this Agreement or GAAP have been set aside on its books and that have not given rise to any Liens (other Purchase Document or to perform its covenants, duties or obligations under the Purchased Loansthan Permitted Liens);
(g) any failure reduction in the Unpaid Balance of any CRC Receivable included in the KF Purchased Assets as a result of any Concession made by the Seller or for which the Seller is entitled to be indemnified under the CRC Purchase Agreement;
(h) any product liability, strict liability or personal injury claim in connection with the service (other than services provided by the Issuer or its assignee assignees) that is the subject of any CRC Receivable or CRC Related Property; and
(i) any investigation, litigation or proceeding related to repurchase any Purchased Loan use by the Seller of the proceeds of any Purchase made hereunder. Notwithstanding the foregoing (and with respect to clause (ii) below, without prejudice to the rights that the Issuer may have pursuant to Section 2.3, and the Seller shall pay on demand (without duplication) to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnified Amounts arising out of, relating to other provisions of this Agreement or resulting from, the provisions of any of the foregoing providedother Transaction Documents), however, that the foregoing obligation of indemnification in no event shall not include any CRC Indemnified Amounts to the extent Party be indemnified for any CRC Indemnified Losses (i) resulting from gross negligence or wilful willful misconduct on the part of such CRC Indemnified Party, (ii) to the extent the same includes losses in respect of KF Purchased Assets and reimbursement therefor that would constitute credit recourse to the Seller for the amount of any KF Purchased Asset not paid by the related Obligor or (iii) resulting from the action or omission of the Servicer. If for any reason the indemnification provided in this Section 10.1 is unavailable to a CRC Indemnified Party or is insufficient to hold a CRC Indemnified Party harmless, then the Seller shall contribute to the maximum amount payable or paid to such CRC 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 CRC Indemnified Party on the one hand and the Seller on the other hand, but also the relative fault of such CRC Indemnified Party and the Seller, and any other relevant equitable considerations. Notwithstanding anything to the contrary in this Agreement, any representations, warranties and covenants made by the Seller in this Agreement or the other Transaction Documents that are qualified by or limited to events or circumstances that have, or are reasonably likely to have, given rise to a Material Adverse Effect shall (solely for purposes of the indemnification obligations set forth in this Section 10.1) be deemed not to be so qualified or limited. The Issuer acknowledges that, in the event that the Seller does not have available funds to pay any indemnified amounts owing under this Article X, the excess of the amounts due under this Article X over such funds shall not constitute a “claim” under Section 101(5) of the federal Bankruptcy Code against the Seller until such time as the Seller has such funds; provided, that nothing in this paragraph shall limit the obligations of the Seller or the rights of the Issuer as assignee of the Seller to enforce any claims that may be owing to the Seller under the CRC Purchase Agreement.
Appears in 1 contract
Samples: Receivables Purchase Agreement (NRT Settlement Services of Missouri LLC)
