Indemnities by the SPV. Without limiting any other rights which the Indemnified Parties may have hereunder or under applicable Law, the SPV hereby agrees to indemnify the Investors, each Funding Agent, the Administrative Agent, the Administrator, the Program Support Providers and their respective officers, directors, employees, counsel and other agents (collectively, “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities, costs and expenses, including reasonable attorneys’ fees (which such attorneys may be employees of the Program Support Providers, the Funding Agents or the Administrative Agent, as applicable) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between the SPV, Arrow or an Originator (including, in its capacity as the Master Servicer or any Affiliate of Arrow acting as Master Servicer) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, any Funding Agent or any Investor of the Asset Interest or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, (ii) Indemnified Amounts in respect of Taxes, which shall be governed exclusively by Section 9.2 and 9.3, except that Taxes representing losses, claims or damages with respect to a non-Tax claim (including, for greater certainty, all items specifically set out in this Section 9.1) will be covered by this Section 9.1, (iii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables and (iv) any expenses, costs or related amounts (including attorneys’ fees) incurred by an Indemnified Party with respect to any action or proceeding to the extent the SPV, Arrow, and/or an Originator shall be the prevailing party against such Indemnified Party. Without limiting the generality of the foregoing, the SPV shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from: (a) any representation or warranty made by the SPV or any Originator (including, Arrow or any of its Affiliates in the capacity as the Master Servicer) or any officers of the SPV or Arrow or any other Originator (including, in its capacity as the Master Servicer or any Affiliate of an Originator acting as Master Servicer) under or in connection with this Agreement, the First Tier Agreement, any Originator Sale Agreement any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by the SPV or the Master Servicer pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made; (b) the failure by the SPV or any Originator (including Arrow, in its capacity as the Master Servicer or any Affiliate of Arrow acting as a Sub-Servicer) to comply with any applicable Law with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such applicable Law; (c) the failure (i) to vest and maintain vested in the Administrative Agent, for the benefit of the Funding Agents, on behalf of the Investors, a first priority, perfected ownership interest in the Asset Interest free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Asset Interest or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Agent, for the benefit of the Funding Agents, on behalf of the Investors, in the Affected Assets, free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Affected Assets; (d) the failure to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Affected Assets; (e) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Receivables or the related Contracts restricting assignment of any Receivables; (f) any failure of the Master Servicer to perform its duties or obligations in accordance with the provisions hereof; (g) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable; (h) the transfer of an interest in any Receivable other than an Eligible Receivable; (i) the failure by the SPV, any Originator or the Master Servicer to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Receivables or related Contracts; (j) the Net Investment exceeding the Net Pool Balance, minus the Required Reserves at any time; (k) the failure of the SPV, Arrow or any Originator to pay or remit when due any taxes, including sales, excise, goods and services, harmonized sales, value added or personal property taxes payable by such Person in connection with any of the Receivables or this Agreement; (l) any repayment by any Indemnified Party of any amount previously distributed in reduction of Net Investment which such Indemnified Party believes in good faith is required to be made; (m) the commingling by the SPV, any Originator or the Master Servicer of Collections of Receivables at any time with any other funds; (n) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments by the SPV or any Originator, the ownership of the Asset Interest, or any Affected Asset; (o) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes pursuant to the instructions of the Master Servicer, the SPV, the related Originator or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise; (p) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the SPV or any Originator to qualify to do business or file any notice of business activity report or any similar report; (q) any attempt by any Person to void, rescind or set-aside any transfer by any Originator to Arrow or Arrow to the SPV of any Receivable or Related Security under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law; (r) any action taken by the SPV, any Originator, or the Master Servicer (if any Originator or any Affiliate or designee of an Originator) in the enforcement or collection of any Receivable; (s) the use of the proceeds of any Investment or Reinvestment; or (t) the transactions contemplated hereby being characterized as other than debt for the purposes of the Code.
Appears in 5 contracts
Samples: Transfer and Administration Agreement (Arrow Electronics, Inc.), Transfer and Administration Agreement (Arrow Electronics Inc), Transfer and Administration Agreement (Arrow Electronics Inc)
Indemnities by the SPV. Without limiting any other rights which the Indemnified Parties may have hereunder or under applicable Law, the SPV hereby agrees to indemnify the Investors, each Funding the Agent, the Administrative each Managing Agent, the each Administrator, the Program Support Providers Providers, and their respective officers, directors, employees, counsel and other agents (collectively, “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities, costs and expenses, including reasonable attorneys’ fees (which such attorneys may be employees of the Program Support Providers, the Funding Agents or the Administrative Agent, as applicableIndemnified Parties) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between the SPV, Arrow SPV or an any Originator (including, including any Originator in its capacity as the Master Servicer or any Affiliate of Arrow an Originator acting as Master Servicer) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise party, in each case arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, any Funding Managing Agent or any Investor of the Asset Interest or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, as finally determined by a court of competent jurisdiction, (ii) Indemnified Amounts in respect of Taxes, which shall be governed exclusively by Section 9.2 and 9.3, except that Taxes representing losses, claims recourse for uncollectible Receivables or damages with respect to a non-Tax claim (including, for greater certainty, all items specifically set out in this Section 9.1) will be covered by this Section 9.1, (iii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables and (iv) any expenses, costs Taxes which are covered by Section 9.4 or related amounts (including attorneys’ fees) incurred by an Indemnified Party with respect to any action or proceeding to the extent the SPV, Arrow, and/or an Originator shall be the prevailing party against such Indemnified PartyExcluded Taxes. Without limiting the generality of the foregoing, the SPV shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) any representation or warranty made by the SPV or SPV, any Originator (including, Arrow or including any Affiliate of any Originator in its Affiliates in the capacity as the Master Servicer) or any officers of the SPV or Arrow or SPV, any other Originator (including, in its capacity as the Master Servicer or any Affiliate of an Originator acting as Master Servicer) under or in connection with this Agreement, the First Tier Agreement, any Originator Sale Agreement any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by the SPV SPV, the Servicer or the Master Servicer any Originator pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made;
(b) the failure by the SPV or any Originator (including Arrowincluding, in its capacity as the Master Servicer or any Affiliate of Arrow an Originator acting as a Sub-Servicer) to comply with any applicable Law with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such applicable Law;
(c) the failure (i) to vest and maintain vested in the Administrative Agent, for the benefit of the Funding Agents, on behalf of the InvestorsSecured Parties, a first priority, perfected ownership interest in the Asset Interest free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Asset Interest Adverse Claim or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Agent, for the benefit of the Funding Agents, on behalf of the InvestorsSecured Parties, in the Affected Assets, free and clear of any lienAdverse Claim, security interestin each case, charge other than as a result of actions of the Agent or encumbrance, or any other right or claims in or on the Affected AssetsSecured Creditor;
(d) at the request of the Agent, the failure by the SPV, any Originator or the Servicer to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Affected Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcybankruptcy or uncollectibility of a Receivable from the related Obligor) of the Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Receivables or the related Contracts restricting assignment of any Receivables;
(f) any failure of the Master Servicer to perform its duties or obligations in accordance with the provisions hereof;
(g) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable;
(h) the transfer of an interest in any Receivable other than an Eligible Receivable;
(i) the failure by the SPV, SPV or any Originator or of the Master Servicer Originators to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Receivables or related Contracts;
(ji) the Net Investment plus the Required Reserves exceeding the Net Pool Balance, minus the Required Reserves Balance at any timetime (other than as a result of the uncollectibility of any Receivable);
(kj) the failure of the SPV, Arrow SPV or any Originator to pay or remit when due any taxes, including sales, excise, goods and services, harmonized sales, value added excise or personal property taxes payable by such Person in connection with any of the Receivables or this AgreementReceivables;
(lk) 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;
(ml) the commingling by the SPV, any Originator or the Master Servicer of Collections of Receivables at any time with any other funds;
(nm) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments by the SPV or any Originator, the ownership of the Asset Interest, or any Affected Asset;
(on) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes or the Collection Account pursuant to the instructions of the Master Servicer, the SPV, the related any Originator or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise, or any claim or demand for indemnification made by any Blocked Account Bank to any Indemnified Party pursuant to any Blocked Account Agreement;
(po) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the SPV SPV, the Servicer or any Originator to qualify to do business or file any notice of business activity report or any similar report;
(qp) any attempt by any Person to void, rescind or set-aside any transfer by any Originator to Arrow or Arrow to the SPV of any Receivable or Related Security under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(rq) any action taken by the SPV, any Originator, or the Master Servicer (if any the Servicer is an Originator or any Affiliate or designee of an Originator) in the enforcement or collection of any Receivable;Receivable (unless such action is directed by the Agent or the Investors in bad faith or with gross negligence or willful misconduct); or
(sr) the use of the proceeds of any Investment or Reinvestment; or
(t) the transactions contemplated hereby being characterized as other than debt for the purposes of the Code.
Appears in 4 contracts
Samples: Transfer and Administration Agreement (Greif, Inc), Transfer and Administration Agreement (Greif, Inc), Transfer and Administration Agreement (Greif, Inc)
Indemnities by the SPV. Without limiting any other rights which the Indemnified Parties may have hereunder or under applicable Law, the SPV hereby agrees to indemnify the Investors, each Funding Agent, the Administrative Agent, the Administrator, the Program Support Providers and their respective officers, directors, employees, counsel and other agents (collectively, “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities, costs and expenses, including reasonable attorneys’ fees (which such attorneys may be employees of the Program Support Providers, the Funding Agents or the Administrative Agent, as applicable) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between the SPV, Arrow or an Originator (including, in its capacity as the Master Servicer or any Affiliate of Arrow acting as Master Servicer) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, any Funding Agent or any Investor of the Asset Interest or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, (ii) Indemnified Amounts in respect of Taxes, which shall be governed exclusively by Section 9.2 and 9.3, except that Taxes representing losses, claims or damages with respect to a non-Tax claim (including, for greater certainty, all items specifically set out in this Section 9.1) will be covered by this Section 9.1, (iii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables and or (iviii) any expenses, costs or related amounts (including attorneys’ fees) incurred by an Indemnified Party with respect to any action or proceeding to the extent the SPV, Arrow, and/or an Originator shall be the prevailing party against such Indemnified Party. Without limiting the generality of the foregoing, the SPV shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) any representation or warranty made by the SPV or any Originator (including, Arrow or any of its Affiliates in the capacity as the Master Servicer) or any officers of the SPV or Arrow or any other Originator (including, in its capacity as the Master Servicer or any Affiliate of an Originator acting as Master Servicer) under or in connection with this Agreement, the First Tier Agreement, any Originator Sale Agreement any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by the SPV or the Master Servicer pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made;
(b) the failure by the SPV or any Originator (including Arrow, in its capacity as the Master Servicer or any Affiliate of Arrow acting as a Sub-Servicer) to comply with any applicable Law with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such applicable Law;
(c) the failure (i) to vest and maintain vested in the Administrative Agent, for the benefit of the Funding Agents, on behalf of the Investors, a first priority, perfected ownership interest in the Asset Interest free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Asset Interest Adverse Claim or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Agent, for the benefit of the Funding Agents, on behalf of the Investors, in the Affected Assets, free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Affected AssetsAdverse Claim;
(d) the failure to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Affected Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Receivables or the related Contracts restricting assignment of any Receivables;
(f) any failure of the Master Servicer to perform its duties or obligations in accordance with the provisions hereof;
(g) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable;
(h) the transfer of an interest in any Receivable other than an Eligible Receivable;
(i) the failure by the SPV, any Originator or the Master Servicer to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Receivables or related Contracts;
(j) the Net Investment exceeding the Net Pool Balance, minus the Required Reserves at any time;
(k) the failure of the SPV, Arrow or any Originator to pay or remit when due any taxes, including sales, excise, goods and services, harmonized sales, value added or personal property taxes payable by such Person in connection with any of the Receivables or this Agreement;
(l) any repayment by any Indemnified Party of any amount previously distributed in reduction of Net Investment which such Indemnified Party believes in good faith is required to be made;
(m) the commingling by the SPV, any Originator or the Master Servicer of Collections of Receivables at any time with any other funds, including funds in respect of HP Receivables at any time when such HP Receivables are not Receivables hereunder;
(n) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments by the SPV or any Originator, the ownership of the Asset Interest, or any Affected Asset;
(o) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes pursuant to the instructions of the Master Servicer, the SPV, the related Originator or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise;
(p) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the SPV or any Originator to qualify to do business or file any notice of business activity report or any similar report;
(q) any attempt by any Person to void, rescind or set-aside any transfer by any Originator to Arrow or Arrow to the SPV of any Receivable or Related Security under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(r) any action taken by the SPV, any Originator, or the Master Servicer (if any Originator or any Affiliate or designee of an Originator) in the enforcement or collection of any Receivable;
(s) the use of the proceeds of any Investment or Reinvestment; or
(t) the transactions contemplated hereby being characterized as other than debt for the purposes of the Code.
Appears in 3 contracts
Samples: Transfer and Administration Agreement (Arrow Electronics Inc), Transfer and Administration Agreement (Arrow Electronics Inc), Transfer and Administration Agreement (Arrow Electronics Inc)
Indemnities by the SPV. Without limiting any other rights which the Indemnified Parties may have hereunder or under applicable Law, the SPV hereby agrees to indemnify the Investors, each Funding the Letter of Credit Issuers, the Agent, the Administrative each Managing Agent, the each Administrator, the Program Support Providers and their respective officers, directors, employees, counsel and other agents (collectively, “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities, costs and expenses, including reasonable attorneys’ fees (which such attorneys may be employees of the Program Support Providers, the Funding Agents or the Administrative Agent, as applicableIndemnified Parties) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between the SPV, Arrow SPV or an any Originator (including, including any Originator in its capacity as the Master Servicer or any Affiliate of Arrow an Originator acting as Master Servicer) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, any Funding Managing Agent or any Investor of the Asset Interest or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, as finally determined by a court of competent jurisdiction, (ii) Indemnified Amounts in respect of Taxes, which shall be governed exclusively by Section 9.2 and 9.3, except that Taxes representing losses, claims or damages with respect to a non-Tax claim (including, for greater certainty, all items specifically set out in this Section 9.1) will be covered by this Section 9.1, (iii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables and (iviii) any expenses, costs or related amounts (including attorneys’ fees) incurred by an Indemnified Party with respect to any action or proceeding Foreign Receivables, losses incurred due to the extent SPV’s inability to receive Collections with respect to such Foreign Receivables arising directly as a result of any Originator’s failure to perfect the SPV, Arrow, and/or an Originator shall be ’s security interest hereunder in jurisdictions outside the prevailing party against such Indemnified PartyUnited States. Without limiting the generality of the foregoing, the SPV shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) any representation or warranty made by the SPV or SPV, any Originator (including, Arrow or including any Affiliate of any Originator in its Affiliates in the capacity as the Master Servicer) or any officers of the SPV or Arrow or SPV, any other Originator (including, in its capacity as the Master Servicer or any Affiliate of an Originator acting as Master Servicer) under or in connection with this Agreement, the First Tier Agreement, any Originator Sale Agreement any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by the SPV SPV, the Servicer or the Master Servicer any Originator pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed madeconfirmed;
(b) the failure by the SPV or any Originator (including Arrowincluding, in its capacity as the Master Servicer or any Affiliate of Arrow an Originator acting as a Sub-Servicer) to comply with any applicable Law with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such applicable Law;
(c) other than with respect to Foreign Receivables, the failure (i) to vest and maintain vested in the Administrative Agent, for the benefit of the Funding Agents, on behalf of the InvestorsSecured Parties, a first priority, perfected ownership interest in the Asset Interest free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Asset Interest Adverse Claim or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Agent, for the benefit of the Funding Agents, on behalf of the InvestorsSecured Parties, in the Affected Assets, free and clear of any lienAdverse Claim, security interestin each case, charge other than as a result of actions of the Agent or encumbrance, or any other right or claims in or on the Affected AssetsSecured Creditor;
(d) the failure by the SPV, any Originator or the Servicer to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Affected Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Receivables or the related Contracts restricting assignment of any Receivables;
(f) any failure of the Master Servicer to perform its duties or obligations in accordance with the provisions hereof;
(g) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable;
(h) the transfer of an interest in any Receivable other than an Eligible Receivable;
(i) the failure by the SPV, SPV or any Originator or of the Master Servicer Originators to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Receivables or related Contracts;
(ji) the Net Investment plus the Required Reserves exceeding the Net Pool Balance, minus the Required Reserves Balance at any time;
(kj) the failure of the SPV, Arrow SPV or any Originator to pay or remit when due any taxes, including sales, excise, goods and services, harmonized sales, value added excise or personal property taxes payable by such Person in connection with any of the Receivables or this AgreementReceivables;
(lk) 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;
(ml) the commingling by the SPV, any Originator or the Master Servicer of Collections of Receivables at any time with any other funds;
(nm) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments by the SPV or any Originator, the ownership of the Asset Interest, or any Affected Asset;
(on) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes pursuant to the instructions of the Master Servicer, the SPV, the related any Originator or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise;
(po) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the SPV SPV, the Servicer or any Originator to qualify to do business or file any notice of business activity report or any similar report;
(qp) any attempt by any Person to void, rescind or set-aside any transfer by any Originator to Arrow or Arrow to the SPV of any Receivable or Related Security under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(rq) any action taken by the SPV, any Originator, or the Master Servicer (if any the Servicer is an Originator or any Affiliate or designee of an Originator) in the enforcement or collection of any Receivable;
(sr) the use of the proceeds of any Investment or Reinvestment, or the use of any Letter of Credit; or
(ts) the transactions contemplated hereby being characterized as other than debt for the purposes of the Code.
Appears in 2 contracts
Samples: Transfer and Administration Agreement (Ashland Inc.), Transfer and Administration Agreement (Ashland Inc.)
Indemnities by the SPV. Without limiting any other rights which the Indemnified Parties may have hereunder or under applicable Law, the SPV hereby agrees to indemnify the Investors, each Funding the Letter of Credit Issuers, the Agent, the Administrative each Managing Agent, the each Administrator, the Program Support Providers and their respective officers, directors, employees, counsel and other agents (collectively, “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities, costs and expenses, including reasonable attorneys’ fees (which such attorneys may be employees of the Program Support Providers, the Funding Agents or the Administrative Agent, as applicableIndemnified Parties) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between the SPV, Arrow SPV or an any Originator (including, including any Originator in its capacity as the Master Servicer or any Affiliate of Arrow an Originator acting as Master Servicer) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, any Funding Managing Agent or any Investor of the Asset Interest or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, as finally determined by a court of competent jurisdiction, (ii) Indemnified Amounts in respect of Taxes, which shall be governed exclusively by Section 9.2 and 9.3, except that Taxes representing losses, claims or damages with respect to a non-Tax claim (including, for greater certainty, all items specifically set out in this Section 9.1) will be covered by this Section 9.1, (iii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables and (iviii) any expenses, costs or related amounts (including attorneys’ fees) incurred by an Indemnified Party with respect to any action or proceeding Foreign Receivables, losses incurred due to the extent SPV’s inability to receive Collections with respect to such Foreign Receivables arising directly as a result of any Originator’s failure to perfect the SPV, Arrow, and/or an Originator shall be ’s security interest hereunder in jurisdictions outside the prevailing party against such Indemnified PartyUnited States. Without limiting the generality of the foregoing, the SPV shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) any representation or warranty made by the SPV or SPV, any Originator (including, Arrow or including any Affiliate of any Originator in its Affiliates in the capacity as the Master Servicer) or any officers of the SPV or Arrow or SPV, any other Originator (including, in its capacity as the Master Servicer or any Affiliate of an Originator acting as Master Servicer) under or in connection with this Agreement, the First Tier Agreement, any Originator Sale Agreement any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by the SPV or SPV, the Master Servicer or any Originator pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed madeconfirmed;
(b) the failure by the SPV or any Originator (including Arrowincluding, in its capacity as the Master Servicer or any Affiliate of Arrow an Originator acting as a Sub-Master Servicer) to comply with any applicable Law with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such applicable Law;
(c) other than with respect to Foreign Receivables, the failure (i) to vest and maintain vested in the Administrative Agent, for the benefit of the Funding Agents, on behalf of the InvestorsSecured Parties, a first priority, perfected ownership interest in the Asset Interest free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Asset Interest Adverse Claim or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Agent, for the benefit of the Funding Agents, on behalf of the InvestorsSecured Parties, in the Affected Assets, free and clear of any lienAdverse Claim, security interestin each case, charge other than as a result of actions of the Agent or encumbrance, or any other right or claims in or on the Affected AssetsSecured Creditor;
(d) the failure by the SPV, any Originator or the Master Servicer to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Affected Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Receivables or the related Contracts restricting assignment of any Receivables;
(f) any failure of the Master Servicer to perform its duties or obligations in accordance with the provisions hereof;
(g) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable;
(h) the transfer of an interest in any Receivable other than an Eligible Receivable;
(i) the failure by the SPV, SPV or any Originator or of the Master Servicer Originators to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Receivables or related Contracts;
(ji) the Net Investment plus the Required Reserves exceeding the Net Pool Balance, minus the Required Reserves Balance at any time;
(kj) the failure of the SPV, Arrow SPV or any Originator to pay or remit when due any taxes, including sales, excise, goods and services, harmonized sales, value added excise or personal property taxes payable by such Person in connection with any of the Receivables or this AgreementReceivables;
(lk) 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;
(ml) the commingling by the SPV, any Originator or the Master Servicer of Collections of Receivables at any time with any other fundsfunds (including the commingling of funds with Ashland LLC or any Affiliate thereof whether pursuant to the Separation Agreement or otherwise);
(nm) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments by the SPV or any Originator, the ownership of the Asset Interest, or any Affected Asset;
(on) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes pursuant to the instructions of the Master Servicer, the SPV, the related any Originator or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise;
(po) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the SPV SPV, the Master Servicer or any Originator to qualify to do business or file any notice of business activity report or any similar report;
(qp) any attempt by any Person to void, rescind or set-aside any transfer by any Originator to Arrow or Arrow to the SPV of any Receivable or Related Security under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(rq) any action taken by the SPV, any Originator, or the Master Servicer (if any the Master Servicer is an Originator or any Affiliate or designee of an Originator) in the enforcement or collection of any Receivable;
(sr) the use of the proceeds of any Investment or Reinvestment, or the use of any Letter of Credit; or
(ts) the transactions contemplated hereby being characterized as other than debt for the purposes of the Code.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Valvoline Inc)
Indemnities by the SPV. Without limiting any other rights which the Indemnified Parties may have hereunder or under applicable Law, the SPV hereby agrees to indemnify the Investors, each Funding the Agent, the Administrative each Managing Agent, the each Administrator, the Program Support Providers Providers, PNC Capital Markets, LLC and their respective officers, directors, employees, counsel and other agents (collectively, “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities, costs and expenses, including reasonable attorneys’ fees (which such attorneys may be employees of the Program Support Providers, the Funding Agents or the Administrative Agent, as applicableIndemnified Parties) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between the SPV, Arrow SPV or an any Originator (including, including any Originator in its capacity as the Master Servicer or any Affiliate of Arrow an Originator acting as Master Servicer) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise party, in each case arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, any Funding Managing Agent or any Investor of the Asset Interest or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, as finally determined by a court of competent jurisdiction, (ii) Indemnified Amounts in respect of Taxes, which shall be governed exclusively by Section 9.2 and 9.3, except that Taxes representing losses, claims recourse for uncollectible Receivables or damages with respect to a non-Tax claim (including, for greater certainty, all items specifically set out in this Section 9.1) will be covered by this Section 9.1, (iii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables and (iv) any expenses, costs Taxes which are covered by Section 9.4 or related amounts (including attorneys’ fees) incurred by an Indemnified Party with respect to any action or proceeding to the extent the SPV, Arrow, and/or an Originator shall be the prevailing party against such Indemnified PartyExcluded Taxes. Without limiting the generality of the foregoing, the SPV shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) any representation or warranty made by the SPV or SPV, any Originator (including, Arrow or including any Affiliate of any Originator in its Affiliates in the capacity as the Master Servicer) or any officers of the SPV or Arrow or SPV, any other Originator (including, in its capacity as the Master Servicer or any Affiliate of an Originator acting as Master Servicer) under or in connection with this Agreement, the First Tier Agreement, any Originator Sale Agreement any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by the SPV SPV, the Servicer or the Master Servicer any Originator pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made;
(b) the failure by the SPV or any Originator (including Arrowincluding, in its capacity as the Master Servicer or any Affiliate of Arrow an Originator acting as a Sub-Servicer) to comply with any applicable Law with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such applicable Law;
(c) the failure (i) to vest and maintain vested in the Administrative Agent, for the benefit of the Funding Agents, on behalf of the InvestorsSecured Parties, a first priority, perfected ownership interest in the Asset Interest free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Asset Interest Adverse Claim or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Agent, for the benefit of the Funding Agents, on behalf of the InvestorsSecured Parties, in the Affected Assets, free and clear of any lienAdverse Claim, security interestin each case, charge other than as a result of actions of the Agent or encumbrance, or any other right or claims in or on the Affected AssetsSecured Creditor;
(d) at the request of the Agent, the failure by the SPV, any Originator or the Servicer to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Affected Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcybankruptcy or uncollectibility of a Receivable from the related Obligor) of the Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Receivables or the related Contracts restricting assignment of any Receivables;
(f) any failure of the Master Servicer to perform its duties or obligations in accordance with the provisions hereof;
(g) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable;
(h) the transfer of an interest in any Receivable other than an Eligible Receivable;
(i) the failure by the SPV, SPV or any Originator or of the Master Servicer Originators to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Receivables or related Contracts;
(ji) the Net Investment plus the Required Reserves exceeding the Net Pool Balance, minus the Required Reserves Balance at any timetime (other than as a result of the uncollectibility of any Receivable);
(kj) the failure of the SPV, Arrow SPV or any Originator to pay or remit when due any taxes, including sales, excise, goods and services, harmonized sales, value added excise or personal property taxes payable by such Person in connection with any of the Receivables or this AgreementReceivables;
(lk) 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;
(ml) the commingling by the SPV, any Originator or the Master Servicer of Collections of Receivables at any time with any other funds;
(nm) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments by the SPV or any Originator, the ownership of the Asset Interest, or any Affected Asset;
(on) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes pursuant to the instructions of the Master Servicer, the SPV, the related any Originator or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise, or any claim or demand for indemnification made by any Blocked Account Bank to any Indemnified Party pursuant to any Blocked Account Agreement;
(po) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the SPV SPV, the Servicer or any Originator to qualify to do business or file any notice of business activity report or any similar report;
(qp) any attempt by any Person to void, rescind or set-aside any transfer by any Originator to Arrow or Arrow to the SPV of any Receivable or Related Security under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(rq) any action taken by the SPV, any Originator, or the Master Servicer (if any the Servicer is an Originator or any Affiliate or designee of an Originator) in the enforcement or collection of any Receivable;Receivable (unless such action is directed by the Agent or the Investors in bad faith or with gross negligence or willful misconduct); or
(sr) the use of the proceeds of any Investment or Reinvestment; or
(t) the transactions contemplated hereby being characterized as other than debt for the purposes of the Code.
Appears in 1 contract
Indemnities by the SPV. Without limiting any other rights which the Indemnified Parties may have hereunder or under applicable Law, the SPV hereby agrees to indemnify the Investors, each Funding Agent, the Administrative Agent, the Administrator, the Program Support Providers and their respective officers, directors, employees, counsel and other agents (collectively, “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities, costs and expenses, including reasonable attorneys’ fees (which such attorneys may be employees of the Program Support Providers, the Funding Agents or the Administrative Agent, as applicable) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between the SPV, Arrow or an Originator (including, in its capacity as the Master Servicer or any Affiliate of Arrow acting as Master Servicer) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, any Funding Agent or any Investor of the Asset Interest or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, (ii) Indemnified Amounts in respect of Taxes, which shall be governed exclusively by Section 9.2 and 9.3, except that Taxes representing losses, claims or damages with respect to a non-Tax claim (including, for greater certainty, all items specifically set out in this Section 9.1) will be covered by this Section 9.1, (iii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables and or (iviii) any expenses, costs or related amounts (including attorneys’ fees) incurred by an Indemnified Party with respect to any action or proceeding to the extent the SPV, Arrow, and/or an Originator shall be the prevailing party against such Indemnified Party. Without limiting the generality of the foregoing, the SPV shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) any representation or warranty made by the SPV or any Originator (including, Arrow or any of its Affiliates in the capacity as the Master Servicer) or any officers of the SPV or Arrow or any other Originator (including, in its capacity as the Master Servicer or any Affiliate of an Originator acting as Master Servicer) under or in connection with this Agreement, the First Tier Agreement, any Originator Sale Agreement any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by the SPV or the Master Servicer pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made;
(b) the failure by the SPV or any Originator (including Arrow, in its capacity as the Master Servicer or any Affiliate of Arrow acting as a Sub-Servicer) to comply with any applicable Law with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such applicable Law;
(c) the failure (i) to vest and maintain vested in the Administrative Agent, for the benefit of the Funding Agents, on behalf of the Investors, a first priority, perfected ownership interest in the Asset Interest free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Asset Interest Adverse Claim or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Agent, for the benefit of the Funding Agents, on behalf of the Investors, in the Affected Assets, free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Affected AssetsAdverse Claim;
(d) the failure to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Affected Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Receivables or the related Contracts restricting assignment of any Receivables;
(f) any failure of the Master Servicer to perform its duties or obligations in accordance with the provisions hereof;
(g) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable;
(h) the transfer of an interest in any Receivable other than an Eligible Receivable;
(i) the failure by the SPV, any Originator or the Master Servicer to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Receivables or related Contracts;
(j) the Net Investment exceeding the Net Pool Balance, minus the Required Reserves at any time;
(k) the failure of the SPV, Arrow or any Originator to pay or remit when due any taxes, including sales, excise, goods and services, harmonized sales, value added or personal property taxes payable by such Person in connection with any of the Receivables or this Agreement;
(l) any repayment by any Indemnified Party of any amount previously distributed in reduction of Net Investment which such Indemnified Party believes in good faith is required to be made;
(m) the commingling by the SPV, any Originator or the Master Servicer of Collections of Receivables at any time with any other funds;
(n) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments by the SPV or any Originator, the ownership of the Asset Interest, or any Affected Asset;
(o) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes pursuant to the instructions of the Master Servicer, the SPV, the related Originator or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise;
(p) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the SPV or any Originator to qualify to do business or file any notice of business activity report or any similar report;
(q) any attempt by any Person to void, rescind or set-aside any transfer by any Originator to Arrow or Arrow to the SPV of any Receivable or Related Security under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(r) any action taken by the SPV, any Originator, or the Master Servicer (if any Originator or any Affiliate or designee of an Originator) in the enforcement or collection of any Receivable;
(s) the use of the proceeds of any Investment or Reinvestment; or
(t) the transactions contemplated hereby being characterized as other than debt for the purposes of the Code.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Arrow Electronics Inc)
Indemnities by the SPV. Without limiting any other rights which the Indemnified Parties may have hereunder or under applicable Law, the SPV hereby agrees to indemnify the Investors, each Funding the Letter of Credit Issuers, the Agent, the Administrative each Managing Agent, the each Administrator, the Program Support Providers and their respective officers, directors, employees, counsel and other agents (collectively, “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities, costs and expenses, including reasonable attorneys’ fees (which such attorneys may be employees of the Program Support Providers, the Funding Agents or the Administrative Agent, as applicableIndemnified Parties) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between the SPV, Arrow SPV or an any Originator (including, including any Originator in its capacity as the Master Servicer or any Affiliate of Arrow an Originator acting as Master Servicer) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, any Funding Managing Agent or any Investor of the Asset Interest or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, as finally determined by a court of competent jurisdiction, (ii) Indemnified Amounts in respect of Taxes, which shall be governed exclusively by Section 9.2 and 9.3, except that Taxes representing losses, claims or damages with respect to a non-Tax claim (including, for greater certainty, all items specifically set out in this Section 9.1) will be covered by this Section 9.1, (iii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables and (iviii) any expenses, costs or related amounts (including attorneys’ fees) incurred by an Indemnified Party with respect to any action or proceeding Foreign Receivables, losses incurred due to the extent SPV’s inability to receive Collections with respect to such Foreign Receivables arising directly as a result of any Originator’s failure to perfect the SPV, Arrow, and/or an Originator shall be ’s security interest hereunder in jurisdictions outside the prevailing party against such Indemnified PartyUnited States. Without limiting the generality of the foregoing, the SPV shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) any representation or warranty made by the SPV or SPV, any Originator (including, Arrow or including any Affiliate of any Originator in its Affiliates in the capacity as the Master Servicer) or any officers of the SPV or Arrow or SPV, any other Originator (including, in its capacity as the Master Servicer or any Affiliate of an Originator acting as Master Servicer) under or in connection with this Agreement, the First Tier Agreement, any Originator Sale Agreement any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by the SPV or SPV, the Master Servicer or any Originator pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed madeconfirmed;
(b) the failure by the SPV or any Originator (including Arrowincluding, in its capacity as the Master Servicer or any Affiliate of Arrow an Originator acting as a Sub-Master Servicer) to comply with any applicable Law with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such applicable Law;
(c) other than with respect to Foreign Receivables, the failure (i) to vest and maintain vested in the Administrative Agent, for the benefit of the Funding Agents, on behalf of the InvestorsSecured Parties, a first priority, perfected ownership interest in the Asset Interest free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Asset Interest Adverse Claim or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Agent, for the benefit of the Funding Agents, on behalf of the InvestorsSecured Parties, in the Affected Assets, free and clear of any lienAdverse Claim, security interestin each case, charge other than as a result of actions of the Agent or encumbrance, or any other right or claims in or on the Affected AssetsSecured Creditor;
(d) the failure by the SPV, any Originator or the Master Servicer to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Affected Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Receivables or the related Contracts restricting assignment of any Receivables;
(f) any failure of the Master Servicer to perform its duties or obligations in accordance with the provisions hereof;
(g) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable;
(h) the transfer of an interest in any Receivable other than an Eligible Receivable;
(i) the failure by the SPV, SPV or any Originator or of the Master Servicer Originators to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Receivables or related Contracts;
(ji) the Net Investment plus the Required Reserves exceeding the Net Pool Balance, minus the Required Reserves Balance at any time;
(kj) the failure of the SPV, Arrow SPV or any Originator to pay or remit when due any taxes, including sales, excise, goods and services, harmonized sales, value added excise or personal property taxes payable by such Person in connection with any of the Receivables or this AgreementReceivables;
(lk) 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;
(ml) the commingling by the SPV, any Originator or the Master Servicer of Collections of Receivables at any time with any other funds;
(nm) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments by the SPV or any Originator, the ownership of the Asset Interest, or any Affected Asset;
(on) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes pursuant to the instructions of the Master Servicer, the SPV, the related any Originator or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise;
(po) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the SPV SPV, the Master Servicer or any Originator to qualify to do business or file any notice of business activity report or any similar report;
(qp) any attempt by any Person to void, rescind or set-aside any transfer by any Originator to Arrow or Arrow to the SPV of any Receivable or Related Security under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(rq) any action taken by the SPV, any Originator, or the Master Servicer (if any the Master Servicer is an Originator or any Affiliate or designee of an Originator) in the enforcement or collection of any Receivable;
(sr) the use of the proceeds of any Investment or Reinvestment, or the use of any Letter of Credit; or
(ts) the transactions contemplated hereby being characterized as other than debt for the purposes of the Code.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Ashland Inc.)
Indemnities by the SPV. Without limiting any other rights which the Indemnified Parties may have hereunder or under applicable Law, the SPV hereby agrees to indemnify the Investors, each Funding Agent, the Administrative Agent, the Administrator, the Program Support Providers and their respective officers, directors, employees, counsel and other agents (collectively, “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities, costs and expenses, including reasonable attorneys’ fees (which such attorneys may be employees of the Program Support Providers, the Funding Agents or the Administrative Agent, as applicable) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between the SPV, Arrow or an Originator (including, in its capacity as the Master Servicer or any Affiliate of Arrow acting as Master Servicer) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, any Funding Agent or any Investor of the Asset Interest or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, (ii) Indemnified Amounts in respect of Taxes, which shall be governed exclusively by Section 9.2 and 9.3, except that Taxes representing losses, claims or damages with respect to a non-Tax claim (including, for greater certainty, all items specifically set out in this Section 9.1) will be covered by this Section 9.1, (iii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables and (iv) any expenses, costs or related amounts (including attorneys’ fees) incurred by an Indemnified Party with respect to any action or proceeding to the extent the SPV, Arrow, and/or an Originator shall be the prevailing party against such Indemnified Party. Without limiting the generality of the foregoing, the SPV shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) any representation or warranty made by the SPV or any Originator (including, Arrow or any of its Affiliates in the capacity as the Master Servicer) or any officers of the SPV or Arrow or any other Originator (including, in its capacity as the Master Servicer or any Affiliate of an Originator acting as Master Servicer) under or in connection with this Agreement, the First Tier Agreement, any Originator Sale Agreement any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by the SPV or the Master Servicer pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made;
(b) the failure by the SPV or any Originator (including Arrow, in its capacity as the Master Servicer or any Affiliate of Arrow acting as a Sub-Servicer) to comply with any applicable Law with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such applicable Law;
(c) the failure (i) to vest and maintain vested in the Administrative Agent, for the benefit of the Funding Agents, on behalf of the Investors, a first priority, perfected ownership interest in the Asset Interest free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Asset Interest or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Agent, for the benefit of the Funding Agents, on behalf of the Investors, in the Affected Assets, free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Affected Assets;
(d) the failure to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Affected Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Receivables or the related Contracts restricting assignment of any Receivables;
(f) any failure of the Master Servicer to perform its duties or obligations in accordance with the provisions hereof;
(g) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable;
(h) the transfer of an interest in any Receivable other than an Eligible Receivable;
(i) the failure by the SPV, any Originator or the Master Servicer to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Receivables or related Contracts;
(j) the Net Investment exceeding the Net Pool Balance, minus the Required Reserves at any time;
(k) the failure of the SPV, Arrow or any Originator to pay or remit when due any taxes, including sales, excise, goods and services, harmonized sales, value added or personal property taxes payable by such Person in connection with any of the Receivables or this Agreement;
(l) any repayment by any Indemnified Party of any amount previously distributed in reduction of Net Investment which such Indemnified Party believes in good faith is required to be made;
(m) the commingling by the SPV, any Originator or the Master Servicer of Collections of Receivables at any time with any other funds;
(n) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments by the SPV or any Originator, the ownership of the Asset Interest, or any Affected Asset;
(o) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes pursuant to the instructions of the Master Servicer, the SPV, the related Originator or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise;
(p) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the SPV or any Originator to qualify to do business or file any notice of business activity report or any similar report;
(q) any attempt by any Person to void, rescind or set-aside any transfer by any Originator to Arrow or Arrow to the SPV of any Receivable or Related Security under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(r) any action taken by the SPV, any Originator, or the Master Servicer (if any Originator or any Affiliate or designee of an Originator) in the enforcement or collection of any Receivable;
(s) the use of the proceeds of any Investment or Reinvestment; or
(t) the transactions contemplated hereby being characterized as other than debt for the purposes of the Code.,
Appears in 1 contract
Samples: Transfer and Administration Agreement (Arrow Electronics Inc)
Indemnities by the SPV. Without limiting any other rights which the Indemnified Parties may have hereunder or under applicable Law, the SPV hereby agrees to indemnify the Investors, each Funding the Agent, the Administrative each Managing Agent, the each Administrator, the Program Support Providers Providers, and their respective officers, directors, employees, counsel and other agents (collectively, “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities, costs and expenses, including reasonable attorneys’ fees (which such attorneys may be employees of the Program Support Providers, the Funding Agents or the Administrative Agent, as applicableIndemnified Parties) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between the SPV, Arrow SPV or an any Originator (including, including any Originator in its capacity as the Master Servicer or any 71 Affiliate of Arrow an Originator acting as Master Servicer) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise party, in each case arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, any Funding Managing Agent or any Investor of the Asset Interest or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, as finally determined by a court of competent jurisdiction, (ii) Indemnified Amounts in respect of Taxes, which shall be governed exclusively by Section 9.2 and 9.3, except that Taxes representing losses, claims recourse for uncollectible Receivables or damages with respect to a non-Tax claim (including, for greater certainty, all items specifically set out in this Section 9.1) will be covered by this Section 9.1, (iii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables and (iv) any expenses, costs Taxes which are covered by Section 9.4 or related amounts (including attorneys’ fees) incurred by an Indemnified Party with respect to any action or proceeding to the extent the SPV, Arrow, and/or an Originator shall be the prevailing party against such Indemnified PartyExcluded Taxes. Without limiting the generality of the foregoing, the SPV shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) any representation or warranty made by the SPV or SPV, any Originator (including, Arrow or including any Affiliate of any Originator in its Affiliates in the capacity as the Master Servicer) or any officers of the SPV or Arrow or SPV, any other Originator (including, in its capacity as the Master Servicer or any Affiliate of an Originator acting as Master Servicer) under or in connection with this Agreement, the First Tier Agreement, any Originator Sale Agreement any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by the SPV SPV, the Servicer or the Master Servicer any Originator pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made;
(b) the failure by the SPV or any Originator (including Arrowincluding, in its capacity as the Master Servicer or any Affiliate of Arrow an Originator acting as a Sub-Servicer) to comply with any applicable Law with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such applicable Law;
(c) the failure (i) to vest and maintain vested in the Administrative Agent, for the benefit of the Funding Agents, on behalf of the InvestorsSecured Parties, a first priority, perfected ownership interest in the Asset Interest free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Asset Interest Adverse Claim or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Agent, for the benefit of the Funding Agents, on behalf of the InvestorsSecured Parties, in the Affected Assets, free and clear of any lienAdverse Claim, security interestin each case, charge other than as a result of actions of the Agent or encumbrance, or any other right or claims in or on the Affected AssetsSecured Creditor;
(d) at the request of the Agent, the failure by the SPV, any Originator or the Servicer to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Affected Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcybankruptcy or uncollectibility of a Receivable from the related Obligor) of the Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Receivables or the related Contracts restricting assignment of any Receivables;
(f) any failure of the Master Servicer to perform its duties or obligations in accordance with the provisions hereof;
(g) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable;
(h) the transfer of an interest in any Receivable other than an Eligible Receivable;
(i) the failure by the SPV, SPV or any Originator or of the Master Servicer Originators to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Receivables or related Contracts;
(ji) the Net Investment plus the Required Reserves exceeding the Net Pool Balance, minus the Required Reserves Balance at any timetime (other than as a result of the uncollectibility of any Receivable);
(kj) the failure of the SPV, Arrow SPV or any Originator to pay or remit when due any taxes, including sales, excise, goods and services, harmonized sales, value added excise or personal property taxes payable by such Person in connection with any of the Receivables or this AgreementReceivables;
(lk) 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;
(ml) the commingling by the SPV, any Originator or the Master Servicer of Collections of Receivables at any time with any other funds;
(nm) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments by the SPV or any Originator, the ownership of the Asset Interest, or any Affected Asset;
(on) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes or the Collection Account pursuant to the instructions of the Master Servicer, the SPV, the related any Originator or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise, or any claim or demand for indemnification made by any Blocked Account Bank to any Indemnified Party pursuant to any Blocked Account Agreement;
(po) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the SPV SPV, the Servicer or any Originator to qualify to do business or file any notice of business activity report or any similar report;
(qp) any attempt by any Person to void, rescind or set-aside any transfer by any Originator to Arrow or Arrow to the SPV of any Receivable or Related Security under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(rq) any action taken by the SPV, any Originator, or the Master Servicer (if any the Servicer is an Originator or any Affiliate or designee of an Originator) in the enforcement or collection of any Receivable;Receivable (unless such action is directed by the Agent or the Investors in bad faith or with gross negligence or willful misconduct); or
(sr) the use of the proceeds of any Investment or Reinvestment; or
(t) the transactions contemplated hereby being characterized as other than debt for the purposes of the Code.
Appears in 1 contract
Indemnities by the SPV. Without limiting any other rights which the Indemnified Parties may have hereunder or under applicable Law, the SPV hereby agrees to indemnify the Investors, each Funding the Agent, the Administrative each Managing Agent, the Administrator, the Program Support Providers and their respective officers, directors, employees, counsel and other agents (collectively, “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities, reasonable and documented out-of-pocket costs and related expenses, including reasonable and documented out-of-pocket attorneys’ fees (which such attorneys may be employees excluding the allocated costs of internal counsel of the Program Support Providers, the Funding Agents or the Administrative Agent, as applicableIndemnified Parties) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between the SPV, Arrow or an Originator (including, in its capacity as the Master Servicer or any Affiliate of Arrow acting as Master Servicer) SPV and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise party, in each case arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, any Funding Managing Agent or any Investor of the Asset Interest Portfolio or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or negligence, willful misconduct or bad faith on the part of such Indemnified Party, as finally determined by a court of competent jurisdiction, (ii) Indemnified Amounts in respect to the extent resulting from a claim brought by the SPV, any Originator, the Servicer or Colliers against an Indemnified Party for a breach of Taxessuch Indemnified Party’s representations, which shall be governed exclusively by Section 9.2 and 9.3, except that Taxes representing losses, claims warranties or damages with respect to covenants under a non-Tax claim (including, for greater certainty, all items specifically set out in this Section 9.1) will be covered by this Section 9.1Transaction Document, (iii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables and Receivables; or (iv) any expenses, costs Taxes which are covered by Section 9.4 or related amounts (including attorneys’ fees) incurred by an Indemnified Party with respect to any action or proceeding to the extent the SPV, Arrow, and/or an Originator shall be the prevailing party against such Indemnified PartyExcluded Taxes. Without limiting the generality of the foregoing, but subject to the exclusions described in clauses (i), (ii) and (iii) of the preceding sentence, the SPV shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) any representation or warranty made by the SPV or SPV, Colliers, any Originator (including, Arrow or including any Affiliate of any Originator in its Affiliates in the capacity as the Master Servicer) or any officers of the SPV or Arrow or SPV, Colliers, any other Originator (including, in its capacity as the Master Servicer or any Affiliate of an Originator acting as Master Servicer) under or in connection with this Agreement, the First Tier Agreement, any Originator Sale Agreement any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by the SPV SPV, the Servicer, Colliers or the Master Servicer any Originator pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made;
(b) the failure by the SPV SPV, Colliers or any Originator (including Arrowincluding, in its capacity as the Master Servicer or any Affiliate of Arrow an Originator acting as a Sub-Servicer) to comply with any applicable Law with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such applicable Law;
(c) the failure (i) to vest and maintain vested in the Administrative Agent, for the benefit of the Funding Agents, on behalf of the InvestorsSecured Parties, a first priority, perfected ownership interest in the Asset Interest Portfolio free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Asset Interest Adverse Claim or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Agent, for the benefit of the Funding Agents, on behalf of the InvestorsSecured Parties, in the Affected Assets, free and clear of any lienAdverse Claim (other than a Permitted Adverse Claim), security interestin each case, charge other than as a result of actions of the Agent or encumbrance, or any other right or claims in or on the Affected AssetsSecured Party;
(d) the failure by the SPV, Colliers, any Originator or the Servicer to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC PPSA of any applicable jurisdiction or other applicable laws with respect to any of the Affected Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Receivables or the related Contracts restricting assignment of any Receivables;
(f) any failure of the Master SPV or the Servicer to perform its duties or obligations in accordance with the provisions hereof;
(g) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable;
(h) the transfer of an interest in any Receivable other than an Eligible Receivable;
(i) the failure by the SPV, Colliers or any Originator or of the Master Servicer Originators to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Receivables or related Contracts;
(ji) the Aggregate Net Investment plus the Required Reserves exceeding the Net Pool Balance, minus the Required Reserves Balance at any time;
(kj) the failure of the SPV, Arrow SPV or any Originator to pay or remit when due any taxes, including sales, excise, goods and services, harmonized sales, value added excise or personal property taxes payable by such Person in connection with any of the Receivables or this AgreementReceivables;
(lk) 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;
(ml) the commingling by the SPV, any Originator Originator, Colliers or the Master Servicer of Collections of Receivables at any time with any other fundsfunds (other than funds held in trust for the benefit of the U.S. Agent pursuant to the terms of in this Agreement);
(nm) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments by the SPV SPV, Colliers or any Originator, the ownership of the Asset InterestPortfolio, or any Affected Asset;
(on) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes pursuant to the instructions of the Master Servicer, the SPV, the related Colliers, any Originator or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise;
(po) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the SPV SPV, the Servicer, Colliers or any Originator to qualify to do business or file any notice of business activity report or any similar report;
(qp) any attempt by any Person to void, rescind or set-aside any transfer by any Originator to Arrow or Arrow to the SPV of any Receivable or Related Security under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(rq) any action taken by the SPV, any Originator, Colliers or the Master Servicer (if any the Servicer is an Originator or any Affiliate or designee of an Originator) in the enforcement or collection of any Receivable;; or
(sr) the use of the proceeds of any Investment or Reinvestment; or
(ts) the transactions contemplated hereby being characterized as other than debt for the purposes of the Code.
Appears in 1 contract
Samples: Canadian Transfer and Administration Agreement (Colliers International Group Inc.)
Indemnities by the SPV. Without limiting any other rights which the Indemnified Parties may have hereunder or under applicable Applicable Law, the SPV hereby agrees to indemnify the InvestorsLenders, each Funding the Facility Agent, the Administrative Agent, the AdministratorAdministrators, the Program Support Providers Providers, the Backup Servicer, the Custodian and their respective officers, directors, employees, counsel and other agents (collectively, “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities, costs and expenses, including reasonable attorneys’ fees (which such attorneys may be employees of the Program Support Providers, the Funding Agents Facility Agent, or the Administrative AgentAdministrators, as applicable) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between the SPV, Arrow SPV or an the Originator (including, in its capacity as the Master Servicer or any Affiliate of Arrow the Originator acting as Master Servicer) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, any Funding Agent or any Investor security interest of the Asset Interest Facility Agent on behalf of the Lenders in the Affected Assets or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, or (ii) Indemnified Amounts Taxes or Excluded Taxes other than Taxes or Excluded Taxes described in respect of Taxes, which shall be governed exclusively by Section 9.2 and 9.3, except that Taxes representing losses, claims or damages with respect to a non-Tax claim (including, for greater certainty, all items specifically set out in this Section 9.1) will be covered by this Section 9.1, (iii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables and (iv) any expenses, costs or related amounts (including attorneys’ fees) incurred by an Indemnified Party with respect to any action or proceeding to the extent the SPV, Arrow, and/or an Originator shall be the prevailing party against such Indemnified Party9.1(k). Without limiting the generality of the foregoingforegoing (but subject to the preceding clauses (i) and (ii)), the SPV shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) any representation or warranty made by the SPV or any Originator (including, Arrow or any of its Affiliates in the capacity as the Master Servicer) Servicer or any officers of the SPV or Arrow or any other Originator (including, in its capacity as the Master Servicer or any Affiliate of an Originator acting as Master Servicer) under or in connection with this Agreement, the First Tier Agreement, any Originator Sale Agreement any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by the SPV or the Master Servicer pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made;
(b) the failure by the SPV or any the Originator (including Arrowincluding, in its capacity as the Master Servicer or any Affiliate of Arrow the Originator acting as a Sub-Servicer) to comply with any applicable Applicable Law with respect to any Pool Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable Applicable Law;
(c) the failure (i) to vest and maintain vested in the Administrative Agent, for the benefit of the Funding Agents, on behalf of the Investors, a first priority, perfected ownership interest in the Asset Interest free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Asset Interest or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Facility Agent, for the benefit of the Funding Agents, on behalf of the InvestorsLenders, in the Affected Assets, free and clear of any lien, security interest, charge or encumbrance, or Adverse Claim (other right or claims in or on the Affected Assetsthan Permitted Adverse Claims);
(d) the failure to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws Applicable Laws with respect to any of the Affected Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the an Obligor to the payment of any Pool Receivable (including a defense based on such Pool Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Pool Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Pool Receivables or the related Contracts restricting assignment of any Pool Receivables;
(f) any failure of the Master Servicer to perform its duties or obligations in accordance with the provisions hereof;
(g) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Pool Receivable;
(h) the transfer financing of an interest in any Pool Receivable other than an Eligible ReceivableReceivable (as of the related Purchase Date) by the proceeds of any Loan;
(i) the failure by the SPV, any Originator SPV or the Master Servicer Originator (individually or as Servicer) to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Pool Receivables or related Contracts;
(j) the Net Investment exceeding the Net Pool Balance, minus the Required Reserves existence of a Borrowing Base Deficit at any time;
(k) the failure of the SPV, Arrow SPV or any the Originator to pay or remit when due any taxes, including sales, excise, goods and services, harmonized sales, value added excise or personal property taxes payable by such Person in connection with any of the Receivables or this AgreementPool Receivables;
(l) any repayment by any Indemnified Party of any amount previously distributed in reduction prepayment of Net Investment any Loans of which such Indemnified Party believes in good faith is required to be made;
(m) the commingling by the SPV, any Originator SPV or the Master Servicer of Collections of Pool Receivables at any time with any other funds;
(n) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments the Loans by the SPV or any OriginatorSPV, the ownership of the SPV of the Asset Interest, or the security interest of the Facility Agent on behalf of the Lenders in any Affected Asset;
(o) failure of any Blocked Account Bank Lock-Box Bank, the Intercreditor Master Agent or the Servicer to remit any amounts Collections held in the Blocked Lock-Box Accounts or any related lock-boxes to the Collection Account when required to pursuant to the instructions of the Master Servicerterms hereof, the SPV, the related Originator or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise;
(p) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the SPV or any the Originator to qualify to do business or file any notice of business activity report or any similar report;
(q) any attempt by any Person to void, rescind or set-aside any transfer by any the Originator to Arrow or Arrow to the SPV of any Pool Receivable or Related Security and other Affected Asset under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(r) any action taken by the SPV, any the Originator, or the Master Servicer (if any the Originator or any Affiliate or designee of an the Originator) in the enforcement or collection of any Pool Receivable;
(s) the use of the proceeds of any Investment or Reinvestment; or
(t) the transactions contemplated hereby being characterized as other than debt for the purposes of the CodeLoan.
Appears in 1 contract
Samples: Loan and Administration Agreement (Commercial Credit, Inc.)
Indemnities by the SPV. Without limiting any other rights which the Indemnified Parties may have hereunder or under applicable Law, the SPV hereby agrees to indemnify the Investors, each Funding Agent, the Administrative Agent, Agent and the Administrator, the Program Support Providers Managing Agents and their respective officers, directors, employees, counsel and other agents (collectively, “"Indemnified Parties”") from and against any and all damages, losses, claims, liabilities, costs and expenses, including reasonable attorneys’ ' fees (which such attorneys may be employees of the Program Support Providers, the Funding Agents Administrative Agent or the Administrative AgentManaging Agents, as applicable) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or incurred by any of them in any action or proceeding between the SPV, Arrow SPV or an the Originator (including, in its capacity as the Master Servicer or any Affiliate of Arrow the Originator acting as Master Servicer) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, any Funding Agent or any Investor of the Asset Interest or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, (ii) Indemnified Amounts in respect of Taxes, which shall be governed exclusively by Section 9.2 and 9.3, except that Taxes representing losses, claims or damages with respect to a non-Tax claim (including, for greater certainty, all items specifically set out in this Section 9.1) will be covered by this Section 9.1, (iii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables and (iv) any expenses, costs or related amounts (including attorneys’ fees) incurred by an Indemnified Party with respect to any action or proceeding to the extent the SPVsame includes losses in respect of Receivables that are uncollectible on account of the insolvency, Arrow, and/or an Originator shall be bankruptcy or lack of creditworthiness of the prevailing party against such Indemnified Partyrelated Obligor or (iii) Taxes or Excluded Taxes other than Taxes or Excluded Taxes described in Section 9.1(k). Without limiting the generality of the foregoing, the SPV shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) any representation or warranty made by the SPV or any Originator (including, Arrow or any of its Affiliates in the capacity as the Master Servicer) or any officers of the SPV or Arrow or any other Originator (including, in its capacity as the Master Servicer or any Affiliate of an Originator acting as Master Servicer) under or in connection with this Agreement, the First Tier Agreement, any Originator Sale Agreement any of the other Transaction Documents, any Master Servicer Report Documents or any other information or report delivered by the SPV or the Master Servicer pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made, or would have been incomplete, false or incorrect if it had not been qualified by the SPV's or any other Person's knowledge;
(b) the failure by the SPV or any Originator (including Arrow, in its capacity as the Master Servicer or any Affiliate of Arrow acting as a Sub-Servicer) to comply with any applicable Law with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such applicable Law;
(c) the failure (i) to vest and maintain vested in the Administrative Agent, for the benefit of the Funding Agents, on behalf of the Investors, a first priority, perfected ownership interest in the Asset Interest free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Asset Interest Adverse Claim or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Agent, for the benefit of the Funding Agents, on behalf of the Investors, in the Affected Assets, free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Affected AssetsAdverse Claim;
(d) the failure to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Affected Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Receivables or the related Contracts restricting assignment of any Receivables;
(f) any failure of the Master Servicer to perform its duties or obligations in accordance with the provisions hereof;
(g) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable;
(hg) the transfer of an interest in any Receivable other than an Eligible Receivable;
(ih) the failure by the SPV, any Originator or the Master Servicer SPV to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Receivables or related Contracts;
(ji) the Net Investment exceeding the Net Pool Balance, minus the Required Reserves at any time;
(kj) the failure of the SPV, Arrow or any Originator SPV to pay or remit when due any taxes, including sales, excise, goods and services, harmonized sales, value added excise or personal property taxes payable by such Person in connection with any of the Receivables or this AgreementReceivables;
(lk) 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;
(ml) the commingling by the SPV, any Originator or the Master Servicer SPV of Collections of Receivables at any time with any other funds;
(nm) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments by the SPV or any OriginatorSPV, the ownership of the Asset Interest, or any Affected Asset;
(on) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-lock boxes pursuant to the instructions of the Master Servicer, the SPV, the related Originator SPV or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise;
(po) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the SPV or any Originator to qualify to do business or file any notice of business activity report or any similar report;
(qp) any attempt by any Person to void, rescind or set-aside any transfer by any the Originator to Arrow or Arrow to the SPV of any Receivable or Related Security under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(rq) any action taken by the SPV, any Originator, or the Master Servicer (if any Originator or any Affiliate or designee of an Originator) SPV in the enforcement or collection of any Receivable;
(sr) the use of the proceeds of any Investment or Reinvestment; or
(ts) any determination by a Governmental Authority that the transactions contemplated hereby being are properly characterized as other than debt for the purposes of the Code.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Norfolk Southern Corp)
Indemnities by the SPV. Without limiting any other rights which the Indemnified Parties may have hereunder or under applicable Applicable Law, the SPV hereby agrees to indemnify the InvestorsLenders, each Funding the Facility Agent, the Administrative Agent, the AdministratorAdministrators, the Program Support Providers Providers, the Backup Servicer, the Custodian and their respective officers, directors, employees, counsel and other agents (collectively, “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities, costs and expenses, including reasonable attorneys’ fees (which such attorneys may be employees of the Program Support Providers, the Funding Agents or the Administrative Agent, as applicable) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between the SPV, Arrow SPV or an the Originator (including, in its capacity as the Master Servicer or any Affiliate of Arrow the Originator acting as Master Servicer) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, any Funding Agent or any Investor security interest of the Asset Interest Facility Agent on behalf of the Lenders in the Affected Assets or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, or (ii) Indemnified Amounts Taxes or Excluded Taxes other than Taxes or Excluded Taxes described in respect of Taxes, which shall be governed exclusively by Section 9.2 and 9.3, except that Taxes representing losses, claims or damages with respect to a non-Tax claim (including, for greater certainty, all items specifically set out in this Section 9.1) will be covered by this Section 9.1, (iii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables and (iv) any expenses, costs or related amounts (including attorneys’ fees) incurred by an Indemnified Party with respect to any action or proceeding to the extent the SPV, Arrow, and/or an Originator shall be the prevailing party against such Indemnified Party9.1(k). Without limiting the generality of the foregoingforegoing (but subject to the preceding clauses (i) and (ii)), the SPV shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) any representation or warranty made by the SPV or any Originator (including, Arrow or any of its Affiliates in the capacity as the Master Servicer) Servicer or any officers of the SPV or Arrow or any other Originator (including, in its capacity as the Master Servicer or any Affiliate of an Originator acting as Master Servicer) under or in connection with this Agreement, the First Tier Agreement, any Originator Sale Agreement any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by the SPV or the Master Servicer pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made;
(b) the failure by the SPV or any the Originator (including Arrowincluding, in its capacity as the Master Servicer or any Affiliate of Arrow the Originator acting as a Sub-Servicer) to comply with any applicable Applicable Law with respect to any Pool Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable Applicable Law;
(c) the failure (i) to vest and maintain vested in the Administrative Agent, for the benefit of the Funding Agents, on behalf of the Investors, a first priority, perfected ownership interest in the Asset Interest free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Asset Interest or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Facility Agent, for the benefit of the Funding Agents, on behalf of the InvestorsLenders, in the Affected Assets, free and clear of any lien, security interest, charge or encumbrance, or Adverse Claim (other right or claims in or on the Affected Assetsthan Permitted Adverse Claims);
(d) the failure to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws Applicable Laws with respect to any of the Affected Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the an Obligor to the payment of any Pool Receivable (including a defense based on such Pool Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Pool Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Pool Receivables or the related Contracts restricting assignment of any Pool Receivables;
(f) any failure of the Master Servicer to perform its duties or obligations in accordance with the provisions hereof;
(g) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Pool Receivable;
(h) the transfer financing of an interest in any Pool Receivable other than an Eligible ReceivableReceivable (as of the related Purchase Date) by the proceeds of any Loan;
(i) the failure by the SPV, any Originator SPV or the Master Servicer Originator (individually or as Servicer) to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Pool Receivables or related Contracts;
(j) the Net Investment exceeding the Net Pool Balance, minus the Required Reserves existence of a Borrowing Base Deficit at any time;
(k) the failure of the SPV, Arrow SPV or any the Originator to pay or remit when due any taxes, including sales, excise, goods and services, harmonized sales, value added excise or personal property taxes payable by such Person in connection with any of the Receivables or this AgreementPool Receivables;
(l) any repayment by any Indemnified Party of any amount previously distributed in reduction prepayment of Net Investment any Loans of which such Indemnified Party believes in good faith is required to be made;
(m) the commingling by the SPV, any Originator SPV or the Master Servicer of Collections of Pool Receivables at any time with any other funds;
(n) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments the Loans by the SPV or any OriginatorSPV, the ownership of the SPV of the Asset Interest, or the security interest of the Facility Agent on behalf of the Lenders in any Affected Asset;
(o) failure of any Blocked Account Bank Lock-Box Bank, the Intercreditor Master Agent or the Servicer to remit any amounts Collections held in the Blocked Lock-Box Accounts or any related lock-boxes to the Collection Account when required to pursuant to the instructions of the Master Servicerterms hereof, the SPV, the related Originator or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise;
(p) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the SPV or any the Originator to qualify to do business or file any notice of business activity report or any similar report;
(q) any attempt by any Person to void, rescind or set-aside any transfer by any the Originator to Arrow or Arrow to the SPV of any Pool Receivable or Related Security and other Affected Asset under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(r) any action taken by the SPV, any the Originator, or the Master Servicer (if any the Originator or any Affiliate or designee of an the Originator) in the enforcement or collection of any Pool Receivable;
(s) the use of the proceeds of any Investment or Reinvestment; or
(t) the transactions contemplated hereby being characterized as other than debt for the purposes of the CodeLoan.
Appears in 1 contract
Samples: Loan and Administration Agreement (Commercial Credit, Inc.)
Indemnities by the SPV. Without limiting any other rights ---------------------- which the Indemnified Parties may have hereunder or under applicable Law, the SPV hereby agrees to indemnify the Investors, each Funding Agent, the Administrative Agent, the Administrator, the Collateral Agent, the Program Support Providers and their respective officers, directors, employees, counsel and other agents (collectively, “"Indemnified Parties”") from and against any and ------------------- all damages, losses, claims, liabilities, costs and expenses, including reasonable attorneys’ ' fees (which such attorneys may be employees of the Program Support Providers, the Collateral Agent, the Funding Agents or the Administrative Agent, as applicable) and disbursements (all of the foregoing being collectively referred to as “"Indemnified Amounts”") awarded against or ------------------- incurred by any of them in any action or proceeding between the SPV, Arrow or an Originator (including, in its capacity as the Master Servicer or any Affiliate of Arrow acting as Master Servicer) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, any Funding Agent or any Investor of the Asset Interest or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, (ii) Indemnified Amounts in respect of Taxes, which shall be governed exclusively by Section 9.2 and 9.3, except that Taxes representing losses, claims or damages with respect to a non-Tax claim (including, for greater certainty, all items specifically set out in this Section 9.1) will be covered by this Section 9.1, (iii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables and or (iviii) any expenses, costs or related amounts (including attorneys’ ' fees) incurred by an Indemnified Party with respect to any action or proceeding to the extent the SPV, Arrow, and/or an Originator shall be the prevailing party against such Indemnified Party. Without limiting the generality of the foregoing, the SPV shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) any representation or warranty made by the SPV or any Originator (including, Arrow or any of its Affiliates in the capacity as the Master Servicer) or any officers of the SPV or Arrow or any other Originator (including, in its capacity as the Master Servicer or any Affiliate of an Originator acting as Master Servicer) under or in connection with this Agreement, the First Tier Agreement, any Originator Sale Agreement any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by the SPV or the Master Servicer pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made;
(b) the failure by the SPV or any Originator (including Arrow, in its capacity as the Master Servicer or any Affiliate of Arrow acting as a Sub-Servicer) to comply with any applicable Law with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such applicable Law;
(c) the failure (i) to vest and maintain vested in the Administrative Agent, for the benefit of the Funding Agents, on behalf of the Investors, a first priority, perfected ownership interest in the Asset Interest free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Asset Interest Adverse Claim or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Agent, for the benefit of the Funding Agents, on behalf of the Investors, in the Affected Assets, free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Affected AssetsAdverse Claim;
(d) the failure to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Affected Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Receivables or the related Contracts restricting assignment of any Receivables;
(f) any failure of the Master Servicer to perform its duties or obligations in accordance with the provisions hereof;
(g) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable;
(h) the transfer of an interest in any Receivable other than an Eligible Receivable;
(i) the failure by the SPV, any Originator or the Master Servicer to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Receivables or related Contracts;
(j) the Net Investment exceeding the Net Pool Balance, minus the ----- Required Reserves at any time;
(k) the failure of the SPV, Arrow or any Originator to pay or remit when due any taxes, including sales, excise, goods and services, harmonized sales, value added or personal property taxes payable by such Person in connection with any of the Receivables or this Agreement;
(l) any repayment by any Indemnified Party of any amount previously distributed in reduction of Net Investment which such Indemnified Party believes in good faith is required to be made;
(m) the commingling by the SPV, any Originator or the Master Servicer of Collections of Receivables at any time with any other funds, including funds in respect of HP Receivables at any time when such HP Receivables are not Receivables hereunder;
(n) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments by the SPV or any Originator, the ownership of the Asset Interest, or any Affected Asset;
(o) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes pursuant to the instructions of the Master Servicer, the SPV, the related Originator or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise;
(p) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the SPV or any Originator to qualify to do business or file any notice of business activity report or any similar report;
(q) any attempt by any Person to void, rescind or set-aside any transfer by any Originator to Arrow or Arrow to the SPV of any Receivable or Related Security under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(r) any action taken by the SPV, any Originator, or the Master Servicer (if any Originator or any Affiliate or designee of an Originator) in the enforcement or collection of any Receivable;
(s) the use of the proceeds of any Investment or Reinvestment; or
(t) the transactions contemplated hereby being characterized as other than debt for the purposes of the Code.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Arrow Electronics Inc)
Indemnities by the SPV. Without limiting any other rights which the Indemnified Parties may have hereunder or under applicable Law, the SPV hereby agrees to indemnify the Investors, each Funding the Agent, the Administrative each Managing Agent, the each Administrator, the Program Support Providers Providers, and their respective officers, directors, employees, counsel and other agents (collectively, “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities, costs and expenses, including reasonable attorneys’ fees (which such attorneys may be employees of the Program Support Providers, the Funding Agents or the Administrative Agent, as applicableIndemnified Parties) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between the SPV, Arrow SPV or an any Originator (including, including any Originator in its capacity as the Master 73 Servicer or any Affiliate of Arrow an Originator acting as Master Servicer) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise party, in each case arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, any Funding Managing Agent or any Investor of the Asset Interest or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, as finally determined by a court of competent jurisdiction, (ii) Indemnified Amounts in respect of Taxes, which shall be governed exclusively by Section 9.2 and 9.3, except that Taxes representing losses, claims recourse for uncollectible Receivables or damages with respect to a non-Tax claim (including, for greater certainty, all items specifically set out in this Section 9.1) will be covered by this Section 9.1, (iii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables and (iv) any expenses, costs Taxes which are covered by Section 9.4 or related amounts (including attorneys’ fees) incurred by an Indemnified Party with respect to any action or proceeding to the extent the SPV, Arrow, and/or an Originator shall be the prevailing party against such Indemnified PartyExcluded Taxes. Without limiting the generality of the foregoing, the SPV shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) any representation or warranty made by the SPV or SPV, any Originator (including, Arrow or including any Affiliate of any Originator in its Affiliates in the capacity as the Master Servicer) or any officers of the SPV or Arrow or SPV, any other Originator (including, in its capacity as the Master Servicer or any Affiliate of an Originator acting as Master Servicer) under or in connection with this Agreement, the First Tier Agreement, any Originator Sale Agreement any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by the SPV SPV, the Servicer or the Master Servicer any Originator pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made;
(b) the failure by the SPV or any Originator (including Arrowincluding, in its capacity as the Master Servicer or any Affiliate of Arrow an Originator acting as a Sub-Servicer) to comply with any applicable Law with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such applicable Law;
(c) the failure (i) to vest and maintain vested in the Administrative Agent, for the benefit of the Funding Agents, on behalf of the InvestorsSecured Parties, a first priority, perfected ownership interest in the Asset Interest free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Asset Interest Adverse Claim or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Agent, for the benefit of the Funding Agents, on behalf of the InvestorsSecured Parties, in the Affected Assets, free and clear of any lienAdverse Claim, security interestin each case, charge other than as a result of actions of the Agent or encumbrance, or any other right or claims in or on the Affected AssetsSecured Creditor;
(d) at the request of the Agent, the failure by the SPV, any Originator or the Servicer to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Affected Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcybankruptcy or uncollectibility of a Receivable from the related Obligor) of the Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Receivables or the related Contracts restricting assignment of any Receivables;
(f) any failure of the Master Servicer to perform its duties or obligations in accordance with the provisions hereof;
(g) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable;
(h) the transfer of an interest in any Receivable other than an Eligible Receivable;
(i) the failure by the SPV, SPV or any Originator or of the Master Servicer Originators to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Receivables or related Contracts;
(ji) the Net Investment plus the Required Reserves exceeding the Net Pool Balance, minus the Required Reserves Balance at any timetime (other than as a result of the uncollectibility of any Receivable);
(kj) the failure of the SPV, Arrow SPV or any Originator to pay or remit when due any taxes, including sales, excise, goods and services, harmonized sales, value added excise or personal property taxes payable by such Person in connection with any of the Receivables or this AgreementReceivables;
(lk) 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;
(ml) the commingling by the SPV, any Originator or the Master Servicer of Collections of Receivables at any time with any other funds;
(nm) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments by the SPV or any Originator, the ownership of the Asset Interest, or any Affected Asset;
(on) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes or the Collection Account pursuant to the instructions of the Master Servicer, the SPV, the related any Originator or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise, or any claim or demand for indemnification made by any Blocked Account Bank to any Indemnified Party pursuant to any Blocked Account Agreement;
(po) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the SPV SPV, the Servicer or any Originator to qualify to do business or file any notice of business activity report or any similar report;
(qp) any attempt by any Person to void, rescind or set-aside any transfer by any Originator to Arrow or Arrow to the SPV of any Receivable or Related Security under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(rq) any action taken by the SPV, any Originator, or the Master Servicer (if any the Servicer is an Originator or any Affiliate or designee of an Originator) in the enforcement or collection of any Receivable;Receivable (unless such action is directed by the Agent or the Investors in bad faith or with gross negligence or willful misconduct); or
(sr) the use of the proceeds of any Investment or Reinvestment; or
(t) the transactions contemplated hereby being characterized as other than debt for the purposes of the Code.
Appears in 1 contract
Indemnities by the SPV. Without limiting any other rights which the Indemnified Parties may have hereunder or under applicable Law, the SPV hereby agrees to indemnify the Investors, each Funding Agent, the Administrative Agent, the Administrator, the Program Support Providers and their respective officers, directors, employees, counsel and other agents (collectively, “Indemnified Parties”"INDEMNIFIED PARTIES") from and against any and all damages, losses, claims, liabilities, reasonable costs and expenses, including reasonable attorneys’ ' fees (which such attorneys may be employees of the Program Support Providers, the Funding Agents Agent or the Administrative AgentAdministrator, as applicable) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”"INDEMNIFIED AMOUNTS") awarded against or incurred by any of them in any action or proceeding between the SPV, Arrow SPV or an the Originator (including, in its capacity as the Master Servicer or any Affiliate of Arrow the Originator acting as Master Servicer) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, any Funding Agent or any Investor of the Asset Interest or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, as finally determined by a court of competent jurisdiction, or (ii) Indemnified Amounts in respect of Taxes, which shall be governed exclusively by Section 9.2 and 9.3, except that Taxes representing losses, claims or damages with respect to a non-Tax claim (including, for greater certainty, all items specifically set out in this Section 9.1) will be covered by this Section 9.1, (iii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables and (iv) any expenses, costs or related amounts (including attorneys’ fees) incurred by an Indemnified Party with respect to any action or proceeding to the extent the SPV, Arrow, and/or an Originator shall be the prevailing party against such Indemnified PartyPool Receivables. Without limiting the generality of the foregoing, the SPV shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) any representation or warranty made by the SPV or any the Originator (including, Arrow the Originator or any of its Affiliates in the capacity as the Master Servicer) or any officers of the SPV or Arrow or any other Originator (including, in its capacity as the Master Servicer or any Affiliate of an Originator acting as Master Servicer) under or in connection with this Agreement, the First Tier Agreement, any Originator Sale Agreement any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by the SPV or the Master Servicer pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made;
(b) the failure by the SPV or any the Originator (including Arrowincluding, in its capacity as the Master Servicer or any Affiliate of Arrow the Originator acting as a Sub-Servicer) to comply with any applicable Law with respect to any Pool Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable Law;
(c) the failure (i) to vest and maintain vested in the Administrative Agent, for the benefit of the Funding Agents, on behalf of the Investors, a first priority, perfected ownership interest in the Asset Interest free and clear of any lien, security interest, charge or encumbrance, or Adverse Claim other right or claims in or on the Asset Interest than Permitted Adverse Claims or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Agent, for the benefit of the Funding Agents, on behalf of the Investors, in the Affected Assets, free and clear of any lien, security interest, charge or encumbrance, or Adverse Claim other right or claims in or on the Affected Assetsthan Permitted Adverse Claims;
(d) the failure to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Affected Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Receivables or the related Contracts restricting assignment of any Receivables;
(f) any failure of the Master Servicer to perform its duties or obligations in accordance with the provisions hereof;
(g) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable;
(h) the transfer of an interest in any Receivable other than an Eligible Receivable;
(i) the failure by the SPV, any Originator or the Master Servicer to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Receivables or related Contracts;
(j) the Net Investment exceeding the Net Pool Balance, minus the Required Reserves at any time;
(k) the failure of the SPV, Arrow or any Originator to pay or remit when due any taxes, including sales, excise, goods and services, harmonized sales, value added or personal property taxes payable by such Person in connection with any of the Receivables or this Agreement;
(l) any repayment by any Indemnified Party of any amount previously distributed in reduction of Net Investment which such Indemnified Party believes in good faith is required to be made;
(m) the commingling by the SPV, any Originator or the Master Servicer of Collections of Receivables at any time with any other funds;
(n) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments by the SPV or any Originator, the ownership of the Asset Interest, or any Affected Asset;
(o) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes pursuant to the instructions of the Master Servicer, the SPV, the related Originator or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise;
(p) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the SPV or any Originator to qualify to do business or file any notice of business activity report or any similar report;
(q) any attempt by any Person to void, rescind or set-aside any transfer by any Originator to Arrow or Arrow to the SPV of any Receivable or Related Security under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(r) any action taken by the SPV, any Originator, or the Master Servicer (if any Originator or any Affiliate or designee of an Originator) in the enforcement or collection of any Receivable;
(s) the use of the proceeds of any Investment or Reinvestment; or
(t) the transactions contemplated hereby being characterized as other than debt for the purposes of the Code.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Diebold Inc)
Indemnities by the SPV. Without limiting any other rights which the Indemnified Parties may have hereunder or under applicable Law, the SPV hereby agrees to indemnify the Investors, each Funding the Agent, the Administrative each Managing Agent, the Administrator, the Program Support Providers and their respective officers, directors, employees, counsel and other agents (collectively, “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities, reasonable and documented out-of-pocket costs and related expenses, including reasonable and documented out-of-pocket attorneys’ fees (which such attorneys may be employees excluding the allocated costs of internal counsel of the Program Support Providers, the Funding Agents or the Administrative Agent, as applicableIndemnified Parties) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between the SPV, Arrow or an Originator (including, in its capacity as the Master Servicer or any Affiliate of Arrow acting as Master Servicer) SPV and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise party, in each case arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, any Funding Managing Agent or any Investor of the Asset Interest Portfolio or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or negligence, willful misconduct or bad faith on the part of such Indemnified Party, as finally determined by a court of competent jurisdiction, (ii) Indemnified Amounts in respect to the extent resulting from a claim brought by the SPV, any Originator, the Servicer or Colliers against an Indemnified Party for a breach of Taxessuch Indemnified Party’s representations, which shall be governed exclusively by Section 9.2 and 9.3, except that Taxes representing losses, claims warranties or damages with respect to covenants under a non-Tax claim (including, for greater certainty, all items specifically set out in this Section 9.1) will be covered by this Section 9.1Transaction Document, (iii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables and Receivables; or (iv) any expenses, costs Taxes which are covered by Section 9.4 or related amounts (including attorneys’ fees) incurred by an Indemnified Party with respect to any action or proceeding to the extent the SPV, Arrow, and/or an Originator shall be the prevailing party against such Indemnified PartyExcluded Taxes. Without limiting the generality of the foregoing, but subject to the exclusions described in clauses (i), (ii) and (iii) of the preceding sentence, the SPV shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) any representation or warranty made by the SPV or SPV, Colliers, any Originator (including, Arrow or including any Affiliate of any Originator in its Affiliates in the capacity as the Master Servicer) or any officers of the SPV or Arrow or SPV, Colliers, any other Originator (including, in its capacity as the Master Servicer or any Affiliate of an Originator acting as Master Servicer) under or in connection with this Agreement, the First Tier Agreement, any Originator Sale Agreement any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by the SPV SPV, the Servicer, Colliers or the Master Servicer any Originator pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made;
(b) the failure by the SPV SPV, Colliers or any Originator (including Arrowincluding, in its capacity as the Master Servicer or any Affiliate of Arrow an Originator acting as a Sub-Servicer) to comply with any applicable Law with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such applicable Law;
(c) the failure (i) to vest and maintain vested in the Administrative Agent, for the benefit of the Funding Agents, on behalf of the InvestorsSecured Parties, a first priority, perfected ownership interest in the Asset Interest Portfolio free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Asset Interest Adverse Claim or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Agent, for the benefit of the Funding Agents, on behalf of the InvestorsSecured Parties, in the Affected Assets, free and clear of any lienAdverse Claim (other than a Permitted Adverse Claim), security interestin each case, charge other than as a result of actions of the Agent or encumbrance, or any other right or claims in or on the Affected AssetsSecured Party;
(d) the failure by the SPV, Colliers, any Originator or the Servicer to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Affected Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Receivables or the related Contracts restricting assignment of any Receivables;
(f) any failure of the Master SPV or the Servicer to perform its duties or obligations in accordance with the provisions hereof;
(g) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable;
(h) the transfer of an interest in any Receivable other than an Eligible Receivable;
(i) the failure by the SPV, Colliers or any Originator or of the Master Servicer Originators to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Receivables or related Contracts;
(ji) the Aggregate Net Investment plus the Required Reserves exceeding the Net Pool Balance, minus the Required Reserves Balance at any time;
(kj) the failure of the SPV, Arrow SPV or any Originator to pay or remit when due any taxes, including sales, excise, goods and services, harmonized sales, value added excise or personal property taxes payable by such Person in connection with any of the Receivables or this AgreementReceivables;
(lk) 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;
(ml) the commingling by the SPV, any Originator Originator, Colliers or the Master Servicer of Collections of Receivables at any time with any other fundsfunds (other than funds held in trust for the benefit of the CF Agent pursuant to the terms of in this Agreement);
(nm) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments by the SPV SPV, Colliers or any Originator, the ownership of the Asset InterestPortfolio, or any Affected Asset;
(on) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes pursuant to the instructions of the Master Servicer, the SPV, the related Colliers, any Originator or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise;
(po) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the SPV SPV, the Servicer, Colliers or any Originator to qualify to do business or file any notice of business activity report or any similar report;
(qp) any attempt by any Person to void, rescind or set-aside any transfer by any Originator to Arrow or Arrow to the SPV of any Receivable or Related Security under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(rq) any action taken by the SPV, any Originator, Colliers or the Master Servicer (if any the Servicer is an Originator or any Affiliate or designee of an Originator) in the enforcement or collection of any Receivable;; or
(sr) the use of the proceeds of any Investment or Reinvestment; or
(ts) the transactions contemplated hereby being characterized as other than debt for the purposes of the Code.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Colliers International Group Inc.)
Indemnities by the SPV. Without limiting any other rights which the Indemnified Parties may have hereunder or under applicable Law, the SPV hereby agrees to indemnify the Investors, each Funding the Agent, the Administrative each Managing Agent, the each Administrator, the Program Support Providers and their respective officers, directors, employees, counsel and other agents (collectively, “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities, costs and expenses, including reasonable attorneys’ fees (which such attorneys may be employees of the Program Support Providers, the Funding Agents or the Administrative Agent, as applicableIndemnified Parties) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between the SPV, Arrow SPV or an any Originator (including, including any Originator in its capacity as the Master Servicer or any Affiliate of Arrow an Originator acting as Master Servicer) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise party, in each case arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, any Funding Managing Agent or any Investor of the Asset Interest or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, as finally determined by a court of competent jurisdiction, (ii) Indemnified Amounts in respect of Taxes, which shall be governed exclusively by Section 9.2 and 9.3, except that Taxes representing losses, claims recourse for uncollectible Receivables or damages with respect to a non-Tax claim (including, for greater certainty, all items specifically set out in this Section 9.1) will be covered by this Section 9.1, (iii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables and (iv) any expenses, costs Taxes which are covered by Section 9.4 or related amounts (including attorneys’ fees) incurred by an Indemnified Party with respect to any action or proceeding to the extent the SPV, Arrow, and/or an Originator shall be the prevailing party against such Indemnified PartyExcluded Taxes. Without limiting the generality of the foregoing, the SPV shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) any representation or warranty made by the SPV or SPV, any Originator (including, Arrow or including any Affiliate of any Originator in its Affiliates in the capacity as the Master Servicer) or any officers of the SPV or Arrow or SPV, any other Originator (including, in its capacity as the Master Servicer or any Affiliate of an Originator acting as Master Servicer) under or in connection with this Agreement, the First Tier Agreement, any Originator Sale Agreement any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by the SPV SPV, the Servicer or the Master Servicer any Originator pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made;
(b) the failure by the SPV or any Originator (including Arrowincluding, in its capacity as the Master Servicer or any Affiliate of Arrow an Originator acting as a Sub-Servicer) to comply with any applicable Law with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such applicable Law;
(c) the failure (i) to vest and maintain vested in the Administrative Agent, for the benefit of the Funding Agents, on behalf of the InvestorsSecured Parties, a first priority, perfected ownership interest in the Asset Interest free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Asset Interest Adverse Claim or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Agent, for the benefit of the Funding Agents, on behalf of the InvestorsSecured Parties, in the Affected Assets, free and clear of any lienAdverse Claim, security interestin each case, charge other than as a result of actions of the Agent or encumbrance, or any other right or claims in or on the Affected AssetsSecured Creditor;
(d) at the request of the Agent, the failure by the SPV, any Originator or the Servicer to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Affected Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcybankruptcy or uncollectibility of a Receivable from the related Obligor) of the Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Receivables or the related Contracts restricting assignment of any Receivables;
(f) any failure of the Master Servicer to perform its duties or obligations in accordance with the provisions hereof;
(g) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable;
(h) the transfer of an interest in any Receivable other than an Eligible Receivable;
(i) the failure by the SPV, SPV or any Originator or of the Master Servicer Originators to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Receivables or related Contracts;
(ji) the Net Investment plus the Required Reserves exceeding the Net Pool Balance, minus the Required Reserves Balance at any timetime (other than as a result of the uncollectibility of any Receivable);
(kj) the failure of the SPV, Arrow SPV or any Originator to pay or remit when due any taxes, including sales, excise, goods and services, harmonized sales, value added excise or personal property taxes payable by such Person in connection with any of the Receivables or this AgreementReceivables;
(lk) 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;
(ml) the commingling by the SPV, any Originator or the Master Servicer of Collections of Receivables at any time with any other funds;
(nm) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments by the SPV or any Originator, the ownership of the Asset Interest, or any Affected Asset;
(on) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes pursuant to the instructions of the Master Servicer, the SPV, the related any Originator or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise;
(po) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the SPV SPV, the Servicer or any Originator to qualify to do business or file any notice of business activity report or any similar report;
(qp) any attempt by any Person to void, rescind or set-aside any transfer by any Originator to Arrow or Arrow to the SPV of any Receivable or Related Security under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(rq) any action taken by the SPV, any Originator, or the Master Servicer (if any the Servicer is an Originator or any Affiliate or designee of an Originator) in the enforcement or collection of any Receivable;Receivable (unless such action is directed by the Agent or the Investors in bad faith or with gross negligence or willful misconduct); or
(sr) the use of the proceeds of any Investment or Reinvestment; or
(t) the transactions contemplated hereby being characterized as other than debt for the purposes of the Code.
Appears in 1 contract
Indemnities by the SPV. Without limiting any other rights which the Indemnified Parties may have hereunder or under applicable Applicable Law, the SPV hereby agrees to indemnify the InvestorsLenders, each Funding the Facility Agent, the Administrative AgentAdministrators, the AdministratorBackup Servicer, the Program Support Providers Custodian and their respective officers, directors, employees, counsel and other agents (collectively, “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities, costs and expenses, including reasonable attorneys’ fees (which such attorneys may be employees of the Program Support Providers, the Funding Agents Facility Agent or the Administrative AgentAdministrators, as applicable) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between the SPV, Arrow SPV or an the Originator (including, in its capacity as the Master Servicer or any Affiliate of Arrow the Originator acting as Master Servicer) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, any Funding Agent or any Investor security interest of the Asset Interest Facility Agent on behalf of the Lenders in the Affected Assets or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, or (ii) Indemnified Amounts Taxes or Excluded Taxes other than Taxes or Excluded Taxes described in respect of Taxes, which shall be governed exclusively by Section 9.2 and 9.3, except that Taxes representing losses, claims or damages with respect to a non-Tax claim (including, for greater certainty, all items specifically set out in this Section 9.1) will be covered by this Section 9.1, (iii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables and (iv) any expenses, costs or related amounts (including attorneys’ fees) incurred by an Indemnified Party with respect to any action or proceeding to the extent the SPV, Arrow, and/or an Originator shall be the prevailing party against such Indemnified Party9.1(k). Without limiting the generality of the foregoingforegoing (but subject to the preceding clauses (i) and (ii)), the SPV shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) any representation or warranty made by the SPV or any Originator (including, Arrow or any of its Affiliates in the capacity as the Master Servicer) Servicer or any officers of the SPV or Arrow or any other Originator (including, in its capacity as the Master Servicer or any Affiliate of an Originator acting as Master Servicer) under or in connection with this Agreement, the First Tier Agreement, any Originator Sale Agreement any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by the SPV or the Master Servicer pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made;
(b) the failure by the SPV or any the Originator (including Arrowincluding, in its capacity as the Master Servicer or any Affiliate of Arrow the Originator acting as a Sub-Servicer) to comply with any applicable Applicable Law with respect to any Pool Receivable or the related Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable Applicable Law;
(c) the failure (i) to vest and maintain vested in the Administrative Agent, for the benefit of the Funding Agents, on behalf of the Investors, a first priority, perfected ownership interest in the Asset Interest free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Asset Interest or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Facility Agent, for the benefit of the Funding Agents, on behalf of the InvestorsLenders, in the Affected Assets, free and clear of any lien, security interest, charge or encumbrance, or Adverse Claim (other right or claims in or on the Affected Assetsthan Permitted Adverse Claims);
(d) the failure to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws Applicable Laws with respect to any of the Affected Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the an Obligor to the payment of any Pool Receivable (including a defense based on such Pool Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Pool Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Pool Receivables or the related Contracts restricting assignment of any Pool Receivables;
(f) any failure of the Master Servicer to perform its duties or obligations in accordance with the provisions hereof;
(g) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Pool Receivable;
(h) the transfer financing of an interest in any Pool Receivable other than an Eligible ReceivableReceivable (as of the related Purchase Date) by the proceeds of any Loan;
(i) the failure by the SPV, any Originator SPV or the Master Servicer Originator (individually or as Servicer) to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Pool Receivables or related Contracts;
(j) the Net Investment exceeding the Net Pool Balance, minus the Required Reserves existence of a Borrowing Base Deficit at any time;
(k) the failure of the SPV, Arrow SPV or any the Originator to pay or remit when due any taxes, including sales, excise, goods and services, harmonized sales, value added excise or personal property taxes payable by such Person in connection with any of the Receivables or this AgreementPool Receivables;
(l) any repayment by any Indemnified Party of any amount previously distributed in reduction prepayment of Net Investment any Loans of which such Indemnified Party believes in good faith is required to be made;
(m) the commingling by the SPV, any Originator SPV or the Master Servicer of Collections of Pool Receivables at any time with any other funds;
(n) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments the Loans by the SPV or any OriginatorSPV, the ownership of the SPV of the Asset Interest, or the security interest of the Facility Agent on behalf of the Lenders in any Affected Asset;
(o) failure of any Blocked Account Bank Lock-Box Bank, the Intercreditor Master Agent or the Servicer to remit any amounts Collections held in the Blocked Lock-Box Accounts or any related lock-boxes to the Collection Account when required to pursuant to the instructions of the Master Servicerterms hereof, the SPV, the related Originator or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise;
(p) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the SPV or any the Originator to qualify to do business or file any notice of business activity report or any similar report;
(q) any attempt by any Person to void, rescind or set-aside any transfer by any the Originator to Arrow or Arrow to the SPV of any Pool Receivable or Related Security and other Affected Asset under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(r) any action taken by the SPV, any the Originator, or the Master Servicer (if any the Originator or any Affiliate or designee of an the Originator) in the enforcement or collection of any Pool Receivable;
(s) the use of the proceeds of any Investment or Reinvestment; or
(t) the transactions contemplated hereby being characterized as other than debt for the purposes of the CodeLoan.
Appears in 1 contract
Samples: Loan and Administration Agreement (Commercial Credit, Inc.)
Indemnities by the SPV. Without limiting any other rights which the Indemnified Parties may have hereunder or under applicable Law, the SPV hereby agrees to indemnify the Investors, each Funding Agent, the Administrative Agent, the Administrator, the Program Support Providers and their respective officers, directors, employees, counsel and other agents (collectively, “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities, costs and expenses, including reasonable attorneys’ fees (which such attorneys may be employees of the Program Support Providers, the Funding Agents or the Administrative Agent, as applicable) and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between the SPV, Arrow or an Originator (including, in its capacity as the Master Servicer or any Affiliate of Arrow acting as Master Servicer) and any of the Indemnified Parties or between any of the Indemnified Parties and any third party or otherwise arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, any Funding Agent or any Investor of the Asset Interest or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, (ii) Indemnified Amounts in respect of Taxes, which shall be governed exclusively by Section 9.2 and 9.3, except that Taxes representing losses, claims or damages with respect to a non-Tax claim (including, for greater certainty, all items specifically set out in this Section 9.1) will be covered by this Section 9.1, (iii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables and (iv) any expenses, costs or related amounts (including attorneys’ fees) incurred by an Indemnified Party with respect to any action or proceeding to the extent the SPV, Arrow, and/or an Originator shall be the prevailing party against such Indemnified Party. Without limiting the generality of the foregoing, the SPV shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(a) any representation or warranty made by the SPV or any Originator (including, Arrow or any of its Affiliates in the capacity as the Master Servicer) or any officers of the SPV or Arrow or any other Originator (including, in its capacity as the Master Servicer or any Affiliate of an Originator acting as Master Servicer) under or in connection with this Agreement, the First Tier Agreement, any Originator Sale Agreement any of the other Transaction Documents, any Master Servicer Report or any other information or report delivered by the SPV or the Master Servicer pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made;
(b) the failure by the SPV or any Originator (including Arrow, in its capacity as the Master Servicer or any Affiliate of Arrow acting as a Sub-Servicer) to comply with any applicable Law with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such applicable Law;
(c) the failure (i) to vest and maintain vested in the Administrative Agent, for the benefit of the Funding Agents, on behalf of the Investors, a first priority, perfected ownership interest in the Asset Interest free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Asset Interest or (ii) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Agent, for the benefit of the Funding Agents, on behalf of the Investors, in the Affected Assets, free and clear of any lien, security interest, charge or encumbrance, or other right or claims in or on the Affected Assets;
(d) the failure to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any of the Affected Assets;
(e) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Receivables or the related Contracts restricting assignment of any Receivables;
(f) any failure of the Master Servicer to perform its duties or obligations in accordance with the provisions hereof;
(g) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable;
(h) the transfer of an interest in any Receivable other than an Eligible Receivable;
(i) the transfer of an interest in any Receivable other than an Eligible the failure by the SPV, any Originator or the Master Servicer to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Receivables or related Contracts;
(j) the Net Investment exceeding the Net Pool Balance, minus the Required Reserves at any time;
(k) the failure of the SPV, Arrow or any Originator to pay or remit when due any taxes, including sales, excise, goods and services, harmonized sales, value added or personal property taxes payable by such Person in connection with any of the Receivables or this Agreement;
(l) any repayment by any Indemnified Party of any amount previously distributed in reduction of Net Investment which such Indemnified Party believes in good faith is required to be made;
(m) the commingling by the SPV, any Originator or the Master Servicer of Collections of Receivables at any time with any other funds;
(n) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Investments by the SPV or any Originator, the ownership of the Asset Interest, or any Affected Asset;
(o) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes pursuant to the instructions of the Master Servicer, the SPV, the related Originator or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise;
(p) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the SPV or any Originator to qualify to do business or file any notice of business activity report or any similar report;
(q) any attempt by any Person to void, rescind or set-aside any transfer by any Originator to Arrow or Arrow to the SPV of any Receivable or Related Security under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code or other insolvency law;
(r) any action taken by the SPV, any Originator, or the Master Servicer (if any Originator or any Affiliate or designee of an Originator) in the enforcement or collection of any Receivable;
(s) the use of the proceeds of any Investment or Reinvestment; or
(t) the transactions contemplated hereby being characterized as other than debt for the purposes of the Code.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Arrow Electronics Inc)
