Indemnities of Seller. Seller shall indemnify, defend and hold harmless Purchaser from and against any taxes that may at any time be asserted against Purchaser with respect to the sale of the Receivables to Purchaser, including any Taxes relating to any Financed Property, and any sales, gross receipts, general corporation, tangible or intangible personal property, privilege, or license taxes and including any such taxes imposed by the State of Nevada, or any political subdivision or taxing authority thereof, on the Receivables or any income therefrom, or on the Financed Property or on Purchaser as a result of the purchase of the Receivables hereunder (but not including any taxes imposed on the overall net income of Purchaser by the jurisdictions, or any political subdivision or taxing authority of any such jurisdictions, in which Purchaser has its principal office). Seller shall defend, indemnify, and hold harmless Purchaser from and against any and all costs, expenses, losses, damages, claims, and liabilities, arising out of or resulting from the management, use, ownership, or operation of any Financed Property by Seller or any Affiliate or other Person acting on its behalf. 44 Seller shall indemnify Purchaser for any and all costs, expenses, losses, damages, claims, and liabilities of any kind whatsoever that may be imposed on, incurred, or asserted against Purchaser as the result of any act or omission attributable to the original Custodian or any successor Custodian approved in writing by Seller (which approval shall not be unreasonably withheld), in any way relating to the maintenance and custody by the Custodian of the Custodian Receivable Files or arising from the transaction contemplated by the Custodial Agreement or the Agency Agreement. Seller shall indemnify, defend, and hold harmless Purchaser from and against any and all other costs, expenses, losses, claims, damages, and liabilities to the extent that such cost, expense, loss, claim, damage, or liability arose out of, or was imposed upon Purchaser through, the purchase of the Receivables or its participation in any of the transactions contemplated by this Agreement, whether attributable to Seller, any Obligor or any other Person (other than a successor Custodian or servicer which has not been approved in writing by Seller, which approval shall not be unreasonably withheld) including failure of Seller as servicer to provide notice of sale of any Financed Property to the related Obligor and failure to comply with applicable laws in collecting the Receivables or to acts or omissions of any successor Custodian which has been approved in writing by the Seller as servicer (which approval shall not be unreasonably withheld). Indemnification under this Section shall include reasonable fees and expenses of counsel and expenses of investigation and litigation, including fees and expenses of counsel and other expenses incurred in investigating, or preparing a defense of, any threatened litigation or claim asserted but shall not include any cost, expense, loss, claim, damage or liability to the extent attributable to the willful misconduct or gross negligence of Purchaser or to acts or omissions of any successor Custodian or servicer which has not been approved in writing by Seller (which approval shall not be unreasonably withheld). If Seller shall have made any indemnity payments pursuant to this Section 6.02 and Purchaser thereafter collects any of such amounts from others, Purchaser shall promptly repay such amounts to the Seller without interest. Without affecting the survival of any other provision of this Agreement, the indemnities contained in this Section 6.02 shall survive any payment of the amounts owing under, or any repurchase or replacement by Seller of any Receivable and shall survive the termination of this Agreement under Article VIII.
Appears in 1 contract
Samples: Purchase and Servicing Agreement (Mego Financial Corp)
Indemnities of Seller. Without limiting any other rights which the Company may have hereunder or under applicable law, Seller shall indemnifyhereby agrees to indemnify the Company and each of its permitted assigns, defend officers, directors, employees and hold harmless Purchaser from and against any taxes that may at any time be asserted against Purchaser with respect to the sale agents (each of the Receivables to Purchaser, including any Taxes relating to any Financed Property, and any sales, gross receipts, general corporation, tangible or intangible personal property, privilege, or license taxes and including any such taxes imposed by the State of Nevada, or any political subdivision or taxing authority thereofforegoing Persons being individually called a "SALE INDEMNIFIED PARTY"), on the Receivables or any income therefromdemand, or on the Financed Property or on Purchaser as a result of the purchase of the Receivables hereunder (but not including any taxes imposed on the overall net income of Purchaser by the jurisdictions, or any political subdivision or taxing authority of any such jurisdictions, in which Purchaser has its principal office). Seller shall defend, indemnify, and hold harmless Purchaser from and against any and all costs, expenses, losses, damages, claims, and liabilities, arising out of or resulting from the management, use, ownership, or operation of any Financed Property by Seller or any Affiliate or other Person acting on its behalf. 44 Seller shall indemnify Purchaser for any and all costs, expenses, losses, damages, claims, and liabilities of any kind whatsoever that may be imposed on, incurred, or asserted against Purchaser as the result of any act or omission attributable to the original Custodian or any successor Custodian approved in writing by Seller (which approval shall not be unreasonably withheld), in any way relating to the maintenance and custody by the Custodian of the Custodian Receivable Files or arising from the transaction contemplated by the Custodial Agreement or the Agency Agreement. Seller shall indemnify, defend, and hold harmless Purchaser from and against any and all other costs, expenses, losses, claims, damagesjudgments, liabilities and liabilities related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively called "SALE INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of or as a result of arising out of or relating to this Agreement, the Receivables or the Related Rights, EXCLUDING, HOWEVER, (i) Sale Indemnified Amounts to the extent determined by a court of competent jurisdiction to have resulted from bad faith, gross negligence or willful misconduct on the part of such Sale Indemnified Party, (ii) recourse for Sale Indemnified Amounts to the extent the same includes losses in respect of Receivables which are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor, (iii) Sale Indemnified Amounts that represent taxes based upon, or measured by, net income, or changes in the rate of tax or as determined by reference to the overall net income, of such costSale Indemnified Party, expenseor (iv) Sale Indemnified Amounts that represent franchise taxes, losstaxes on, or in the nature of, doing business taxes or capital taxes. Without limiting the foregoing, the Seller shall indemnify each Sale Indemnified Party for Sale Indemnified Amounts arising out of or related to the following:
(a) the transfer by Seller of an interest in any Receivable or Related Right to any Person other than the Company;
(b) the breach of any representation or warranty made by Seller under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by Seller pursuant hereto or thereto which shall have been false or incorrect in any material respect when made or deemed made;
(c) the failure by Seller to comply with any applicable law, rule or regulation with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such applicable law, rule or regulation;
(d) (i) the failure to vest and maintain vested in the Company an ownership interest in the Receivables and the Related Rights free and clear of any Lien (other than Liens imposed by the Credit Agreement), or (ii) the failure of the Company to vest in the Borrower an ownership interest in the Receivables and the Related Rights free and clear of any Lien, in either case other than a Lien arising solely as a result of an act of the Company, the Lenders or the Agent, whether existing at the time of the purchase of such Receivables or at any time thereafter;
(e) the failure of Seller to file with respect to itself, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by Seller, whether at the time of any purchase or at any subsequent time;
(f) any dispute, claim, damage, offset or liability arose out of, or was imposed upon Purchaser through, the purchase defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by Seller (including, without limitation, a defense based on such Receivables or the related Contracts not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its participation in any of the transactions contemplated by this Agreementterms), whether attributable to Seller, any Obligor or any other Person claim resulting from the services or merchandise related to any such Receivable or the furnishing of or failure to furnish such services or merchandise;
(other than a successor Custodian or servicer which has not been approved in writing by Seller, which approval shall not be unreasonably withheldg) including any failure of Seller as servicer to provide notice of sale of any Financed Property to the related Obligor and failure to comply with applicable laws in collecting the Receivables or to acts or omissions of any successor Custodian which has been approved in writing by the Seller as servicer to perform its duties or obligations in accordance with the terms of this Agreement;
(which approval shall not be unreasonably withheld). Indemnification under this Section shall include h) any product liability claim arising out of or in connection with services or merchandise with respect to any Receivable;
(i) any tax or governmental fee or charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel and expenses in defending against the same, which may arise by reason of investigation and litigationthe purchase or ownership of the Receivables generated by Seller or any Related Right connected with any such Receivables;
(j) the commingling of Collections of Receivables at any time with other funds of the Seller;
(k) any investigation, including fees and expenses of counsel and other expenses incurred in investigating, or preparing a defense of, any threatened litigation or proceeding related to or arising from this Agreement or the transactions contemplated hereby or any other investigation, litigation or proceeding relating to the Seller or any of the Originators in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby (other than an investigation, litigation or proceeding relating to a dispute solely amongst the Lenders (or certain Lenders) and the Agent); or
(l) any inability to litigate any claim asserted but shall not include against any costObligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, expensesuit or proceeding; excluding, losshowever, claim, damage or liability (i) Sale Indemnified Amounts to the extent attributable resulting from gross negligence or willful misconduct on the part of such Sale Indemnified Party, (ii) any indemnification which has the effect of recourse to Seller for non-payment of the Receivables due to credit problems of the Obligors, (iii) Sale Indemnified Amounts that represent taxes based upon, or measured by, net income or changes in the rate of tax or as determined by reference to the willful misconduct overall net income of such Sale Indemnified Party and (iv) Sale Indemnified Amounts that represent franchise taxes, taxes of, or gross negligence of Purchaser in the nature of, doing business taxes or to acts or omissions of any successor Custodian or servicer which has not been approved in writing by Seller (which approval shall not be unreasonably withheld)capital taxes. If Seller shall have made for any indemnity payments pursuant to this Section 6.02 and Purchaser thereafter collects any of such amounts from others, Purchaser shall promptly repay such amounts to reason the Seller without interest. Without affecting the survival of any other provision of this Agreement, the indemnities contained indemnification provided above in this Section 6.02 8.1 is unavailable to a Sale Indemnified Party or is insufficient to hold such Sale Indemnified Party harmless, then Seller shall survive any payment of contribute to the amounts owing under, amount paid or any repurchase or replacement payable by Seller of any Receivable and shall survive such Sale Indemnified Party to the termination of this Agreement maximum extent permitted under Article VIIIapplicable law.
Appears in 1 contract
Samples: Receivables Sale Agreement (Packaging Corp of America)
Indemnities of Seller. (a) Seller shall indemnifyagree to defend, defend at its own expense, indemnify and hold harmless Purchaser from and against any taxes that may at any time be asserted against Purchaser with all times after the Closing Date in respect to the sale of the Receivables to Purchaserall liability, damage, actions, causes of action, expense, (including any Taxes relating to any Financed Property, and any sales, gross receipts, general corporation, tangible without limitation attorneys fees) deficiency or intangible personal property, privilege, or license taxes and including any such taxes imposed by the State of Nevada, or any political subdivision or taxing authority thereof, on the Receivables or any income therefrom, or on the Financed Property or on Purchaser as a result of the purchase of the Receivables hereunder (but not including any taxes imposed on the overall net income of Purchaser by the jurisdictions, or any political subdivision or taxing authority of any such jurisdictions, in which Purchaser has its principal office). Seller shall defend, indemnify, and hold harmless Purchaser from and against any and all costs, expenses, losses, damages, claims, and liabilitiesloss resulting from, arising out of or resulting from connected with:
(i) any breach of the managementrepresentations and warranties made in regard to the Assets by Seller in this agreement or in any certificate or other instrument furnished or to be furnished to Purchaser hereunder for the period provided for the survival of representations and warranties set forth in Section 8.16 of this agreement;
(ii) the nonfulfillment of any agreement or covenant made by Seller in or under this agreement; and
(iii) any claims, useobligations, ownershipdebts, demands, or operation liabilities existing against Seller and/or the Assets prior to and including the Closing Date, whether asserted prior to or subsequent to the Closing Date, and thereafter asserted against Purchaser.
(b) Seller, at its own expense, shall have the right to contest, defend or litigate any matter in respect of which indemnification is claimed and any proceeding or litigation which could give rise to a claim for indemnification. Purchaser shall have the right to be represented by counsel and accountants in any such proceeding or litigation at its own expense unless Seller is not diligently pursuing such defense, in which case Purchaser's counsel and accountants shall be at Seller' expense. In connection with the defense of any Financed Property by Seller proceeding or any Affiliate or other Person acting on its behalf. 44 Seller shall indemnify Purchaser for any and all costs, expenses, losses, damages, claims, and liabilities of any kind whatsoever that may be imposed on, incurred, or asserted against Purchaser as the result of any act or omission attributable to the original Custodian or any successor Custodian approved in writing by Seller (which approval shall not be unreasonably withheld), in any way relating to the maintenance and custody by the Custodian of the Custodian Receivable Files or arising from the transaction contemplated by the Custodial Agreement or the Agency Agreement. Seller shall indemnify, defend, and hold harmless Purchaser from and against any and all other costs, expenses, losses, claims, damages, and liabilities to the extent that such cost, expense, loss, claim, damage, or liability arose out of, or was imposed upon Purchaser through, the purchase of the Receivables or its participation in any of the transactions contemplated litigation covered by this AgreementSection, whether attributable Purchaser shall make available to Seller, any Obligor or any other Person Seller all books and records in the possession of Purchaser relating thereto.
(other than a successor Custodian or servicer which has not been approved in writing by Seller, which approval shall not be unreasonably withheldc) including failure of Seller as servicer to provide notice of sale of any Financed Property to the related Obligor and failure to comply with applicable laws in collecting the Receivables or to acts or omissions of any successor Custodian which has been approved in writing by the Seller as servicer (which approval shall not be unreasonably withheld). Indemnification No claim for indemnification under this Section shall include reasonable fees 7 and expenses of counsel and expenses of investigation and litigation, including fees and expenses of counsel and other expenses incurred in investigating, or preparing a defense of, any threatened litigation or claim asserted but shall not include any cost, expense, loss, claim, damage or liability to the extent attributable to the willful misconduct or gross negligence of Purchaser or to acts or omissions of any successor Custodian or servicer which has not been approved in writing Section 3.1 (l) by Seller (which approval shall not be unreasonably withheld). If Seller shall have made any indemnity payments pursuant to this Section 6.02 and Purchaser thereafter collects any of such amounts from others, Purchaser shall promptly repay such amounts to be initiated at any time after the Seller without interest. Without affecting second anniversary of the survival of any other provision Closing Date, except for matters set forth in Section 8.16 (b), (c) and (d) of this Agreement, the indemnities contained in this Section 6.02 shall survive any payment of the amounts owing under, or any repurchase or replacement by Seller of any Receivable and shall survive the termination of this Agreement under Article VIIIagreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Computer Concepts Corp /De)
Indemnities of Seller. Without limiting any other rights which the Company may have hereunder or under applicable law, Seller shall indemnifyhereby agrees to indemnify the Company and each of its permitted assigns, defend officers, directors, employees and hold harmless Purchaser from and against any taxes that may at any time be asserted against Purchaser with respect to the sale agents (each of the Receivables to Purchaser, including any Taxes relating to any Financed Property, and any sales, gross receipts, general corporation, tangible or intangible personal property, privilege, or license taxes and including any such taxes imposed by the State of Nevada, or any political subdivision or taxing authority thereofforegoing Persons being individually called a "SALE INDEMNIFIED PARTY"), on the Receivables or any income therefromdemand, or on the Financed Property or on Purchaser as a result of the purchase of the Receivables hereunder (but not including any taxes imposed on the overall net income of Purchaser by the jurisdictions, or any political subdivision or taxing authority of any such jurisdictions, in which Purchaser has its principal office). Seller shall defend, indemnify, and hold harmless Purchaser from and against any and all costs, expenses, losses, damages, claims, and liabilities, arising out of or resulting from the management, use, ownership, or operation of any Financed Property by Seller or any Affiliate or other Person acting on its behalf. 44 Seller shall indemnify Purchaser for any and all costs, expenses, losses, damages, claims, and liabilities of any kind whatsoever that may be imposed on, incurred, or asserted against Purchaser as the result of any act or omission attributable to the original Custodian or any successor Custodian approved in writing by Seller (which approval shall not be unreasonably withheld), in any way relating to the maintenance and custody by the Custodian of the Custodian Receivable Files or arising from the transaction contemplated by the Custodial Agreement or the Agency Agreement. Seller shall indemnify, defend, and hold harmless Purchaser from and against any and all other costs, expenses, losses, claims, damagesjudgments, liabilities and liabilities to the extent that such costrelated costs and expenses, expense, loss, claim, damage, or liability arose out of, or was imposed upon Purchaser through, the purchase including reasonable attorneys' fees and disbursements (all of the Receivables foregoing being collectively called "SALE INDEMNIFIED AMOUNTS") awarded against or its participation in incurred by any of the transactions contemplated by this Agreement, whether attributable them arising out of or as a result of arising out of or relating to Seller, any Obligor or any other Person (other than a successor Custodian or servicer which has not been approved in writing by Seller, which approval shall not be unreasonably withheld) including failure of Seller as servicer to provide notice of sale of any Financed Property to the related Obligor and failure to comply with applicable laws in collecting the Receivables or to acts or omissions of any successor Custodian which has been approved in writing by the Seller as servicer (which approval shall not be unreasonably withheld). Indemnification under this Section shall include reasonable fees and expenses of counsel and expenses of investigation and litigation, including fees and expenses of counsel and other expenses incurred in investigating, or preparing a defense of, any threatened litigation or claim asserted but shall not include any cost, expense, loss, claim, damage or liability to the extent attributable to the willful misconduct or gross negligence of Purchaser or to acts or omissions of any successor Custodian or servicer which has not been approved in writing by Seller (which approval shall not be unreasonably withheld). If Seller shall have made any indemnity payments pursuant to this Section 6.02 and Purchaser thereafter collects any of such amounts from others, Purchaser shall promptly repay such amounts to the Seller without interest. Without affecting the survival of any other provision of this Agreement, the indemnities contained Receivables or the Related Rights, EXCLUDING, HOWEVER, (i) Sale Indemnified Amounts to the extent determined by a court of competent jurisdiction to have resulted from bad faith, gross negligence or willful misconduct on the part of such Sale Indemnified Party, (ii) recourse for Sale Indemnified Amounts to the extent the same includes losses in this Section 6.02 shall survive any payment respect of Receivables which are uncollectible on account of the amounts owing underinsolvency, bankruptcy or lack of creditworthiness of the related Obligor, (iii) Sale Indemnified Amounts that represent taxes based upon, or measured by, net income, or changes in the rate of tax or as determined by reference to the overall net income, of such Sale Indemnified Party, or (iv) Sale Indemnified Amounts that represent franchise taxes, taxes on, or in the nature of, doing business taxes or capital taxes. Without limiting the foregoing, the Seller shall indemnify each Sale Indemnified Party for Sale Indemnified Amounts arising out of or related to the following:
(a) the transfer by Seller of an interest in any Receivable or Related Right to any Person other than the Company;
(b) the breach of any representation or warranty made by Seller under or in connection with this Agreement or any other Transaction Document, or any repurchase information or replacement report delivered by Seller pursuant hereto or thereto which shall have been false or incorrect in any material respect when made or deemed made;
(c) the failure by Seller to comply with any applicable law, rule or regulation with respect to any Receivable or the related Contract, or the nonconformity of any Receivable and shall survive or the termination of this Agreement under Article VIII.related Contract with any such applicable law, rule or regulation;
Appears in 1 contract
Samples: Purchase and Sale Agreement (Packaging Corp of America)
