Liability of Seller; Indemnities and Liquidated Damages. (a) The Seller shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Seller under the Agreement. (b) The Seller shall indemnify the Issuer and the Bond Trustee, for itself and on behalf of the Transition Bondholders, and each of their respective trustees, officers, directors and agents for, and defend and hold harmless each such Person from and against, any and all taxes (other than any taxes imposed on Transition Bondholders solely as a result of their ownership of Transition Bonds) that may at any time be imposed on or asserted against any such Person as a result of the acquisition or holding of the Transferred Intangible Transition Property by the Issuer or the issuance and sale by the Issuer of the Transition Bonds, including any sales, gross receipts, general corporation, tangible personal property, privilege or license taxes. (i) The Seller shall indemnify the Issuer and the Bond Trustee, on behalf of the Transition Bondholders, each of their respective trustees, officers, directors, and agents, and any Counterparty, and defend and hold harmless each such Person from and against, any and all Losses that may be imposed on, incurred by or asserted against any such Person as a result of (x) the Seller's wilful misconduct, bad faith or gross negligence in the performance of its duties or observance of its covenants under this Agreement, (y) the Seller's reckless disregard of its obligations and duties under this Agreement or (z) the Seller's breach of any of its representations or warranties contained in this Agreement other than those contained in Sections 3.08(b), 3.08(c), 3.08(d)(i), (ii) and (iv) and 3.08(f) (any event described in any of the foregoing clauses (x), (y) or (z), an "Indemnification Event"); provided, however, that the amount of such Losses (other than those payable pursuant to Section 5.01(e)) for which the Seller shall be obligated to provide indemnification shall not exceed the Liquidated Damages Amount. Amounts on deposit in the Reserve Subaccount and the Capital Subaccount shall not be available to satisfy any Losses for which indemnification is provided in this Agreement. (ii) If an Indemnification Event shall occur, upon receipt of written notice thereof by the Seller from the Issuer or the Bond Trustee, the Seller shall notify the Servicer of the occurrence of such event so that the Servicer may, pursuant to Section 8 of Annex 1 to the Master Servicing Agreement, calculate (x) on the day which is 90 days after receipt of such notice by the Seller (the "Initial Loss Calculation Date") the amount of Losses expected to be incurred as a result of such Indemnification Event from and including the time of its occurrence through and including the next Monthly Allocation Date after the Initial Loss Calculation Date and (y) to the extent that Losses may be incurred as a result of such Indemnification Event in an amount exceeding the amount of Losses calculated pursuant to clause (x) above and unless the Seller has paid Liquidated Damages with respect to such Indemnification Event pursuant to Section 5.01(d)(i)(B), not later than each Monthly Allocation Date succeeding the Initial Loss Calculation Date, the amount of Losses expected to be incurred as a result of such Indemnification Event from but excluding such Monthly Allocation Date through and including the next Monthly Allocation Date. All such calculations shall be subject to the approval of the Bond Trustee. If such Indemnification Event shall continue unremedied beyond the Initial Loss Calculation Date, the Seller shall pay to the Bond Trustee, as assignee of the Issuer, for deposit into the General Subaccount of the Collection Account, (x) on the Monthly Allocation Date immediately following the Initial Loss Calculation Date, the amount of Losses (i) In the event of a breach by the Seller of any representation and warranty specified in (A) Section 3.08(b), 3.08(c), 3.08(d)(i), (ii) or (iv) or 3.08(f) of this Agreement that has a material adverse effect on the Transition Bondholders or (B) Sections 3.01, 3.03, 3.04, 3.05 and 3.08(d)(iii), (v) or (vi) of this Agreement for which the full amount of Losses attributable thereto are reasonably expected to be incurred beyond a 90-day period immediately following the occurrence of such Indemnification Event, the Seller shall pay to the Bond Trustee, as assignee of the Issuer, for deposit into the General Subaccount of the Collection Account the Liquidated Damages Amount. Such amount shall be paid (x) in the case of clause (A) above, on the Liquidated Damages Payment Date or (y) in the case of clause (B) above, on the First Monthly Allocation Date following the expiration of the 90-day period set forth in such clause (B). (ii) The Seller shall not be obligated to pay the Liquidated Damages Amount pursuant to Section 5.01(d)(i) (A) if (A) within 90 days after the date of the
Appears in 1 contract
Samples: Intangible Transition Property Sale Agreement (Peco Energy Transition Trust)
Liability of Seller; Indemnities and Liquidated Damages. (a) The Seller shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Seller under the this Agreement.
(b) The Seller shall indemnify the Issuer and the Bond Trustee, for itself and on behalf of the Transition Bondholders, and each of their respective trustees, officers, directors and agents for, and defend and hold harmless each such Person from and against, any and all taxes (other than any taxes imposed on Transition Bondholders solely as a result of their ownership of Transition Bonds) that may at any time be imposed on or asserted against any such Person as a result of the acquisition or holding of the Transferred Intangible Transition Property by the Issuer or the issuance and sale by the Issuer of the Transition Bonds, including any sales, gross receipts, general corporation, tangible personal property, privilege or license taxes.
(i) The Seller shall indemnify the Issuer and the Bond Trustee, on behalf of the Transition Bondholders, each of their respective trustees, officers, directors, and agents, and any Counterparty, and defend and hold harmless each such Person from and against, any and all Losses that may be imposed on, incurred by or asserted against any such Person as a result of (x) the Seller's wilful misconduct, bad faith or gross negligence in the performance of its duties or observance of its covenants under this Agreement, (y) the Seller's reckless disregard of its obligations and duties under this Agreement or (z) the Seller's breach of any of its representations or warranties contained in this Agreement other than those contained in Sections 3.08(b), 3.08(c), 3.08(d)(i), (ii) and (iv) and 3.08(f) (any event described in any of the foregoing clauses (x), (y) or (z), an "Indemnification Event"); provided, however, that the amount of such Losses (other than those payable pursuant to Section 5.01(e)) for which the Seller shall be obligated to provide indemnification shall not exceed the Liquidated Damages Amount. Amounts on deposit in the Reserve Subaccount, the Overcollateralization Subaccount and the Capital Subaccount shall not be available to satisfy any Losses for which indemnification is provided in this Agreement.
(ii) If an Indemnification Event shall occur, upon receipt of written notice thereof by the Seller from the Issuer or the Bond Trustee, the Seller shall notify the Servicer of the occurrence of such event so that the Servicer may, pursuant to Section 8 of Annex 1 to the Master Servicing Agreement, calculate (x) on the day which is 90 days after receipt of such notice by the Seller (the "Initial Loss Calculation Date") the amount of Losses expected to be incurred as a result of such Indemnification Event from and including the time of its occurrence through and including the next Monthly Allocation Date after the Initial Loss Calculation Date and (y) to the extent that Losses may be incurred as a result of such Indemnification Event in an amount exceeding the amount of Losses calculated pursuant to clause (x) above and unless the Seller has paid Liquidated Damages with respect to such Indemnification Event pursuant to Section 5.01(d)(i)(B), not later than each Monthly Allocation Date succeeding the Initial Loss Calculation Date, the amount of Losses expected to be incurred as a result of such Indemnification Event from but excluding such Monthly Allocation Date through and including the next Monthly Allocation Date. All such calculations shall be subject to the approval of the Bond Trustee. If such Indemnification Event shall continue unremedied beyond the Initial Loss Calculation Date, the Seller shall pay to the Bond Trustee, as assignee of the Issuer, for deposit into the General Subaccount of the Collection Account, (x) on the Monthly Allocation Date immediately following the Initial Loss Calculation Date, the amount of LossesLosses calculated pursuant to clause (x) and clause (y) of the preceding sentence with respect to such Monthly Allocation Date and (y) on each subsequent Monthly Allocation Date, the amount of Losses calculated as of such date pursuant to clause (y) of the preceding sentence. Upon payment pursuant to this Section 5.01(c)(ii), the Seller shall have no further obligations with respect to such Losses to the extent of such payments.
(i) In the event of a breach by the Seller of any representation and warranty specified in (A) Section 3.08(b), 3.08(c), 3.08(d)(i), (ii) or (iv) or 3.08(f) of this Agreement that has a material adverse effect on the Transition Bondholders or of
(Bi) Sections 3.01, 3.03, 3.04, 3.05 and 3.08(d)(iii), (v) or (vi) of this Agreement for which the full amount of Losses attributable thereto are reasonably expected to be incurred beyond a 90-day period immediately following the occurrence of such Indemnification Event, the Seller shall pay to the Bond Trustee, as assignee of the Issuer, amounts for deposit into the General Subaccount of the Collection Account for a breach of a representation and warranty which relates to one of the Qualified Rate Orders, but not both of the Qualified Rate Orders, then the Liquidated Damages Amount. Such Amount will include the then outstanding principal amount shall be paid (x) in of only the case Affected Transition Bonds as of clause (A) above, on the Liquidated Damages Payment Redemption Date or (y) in the case of clause (B) above, on the First Monthly Allocation Date following the expiration of the 90-day period set forth in such clause (B)and unpaid interest accrued thereon.
(ii) The Seller shall not be obligated to pay the Liquidated Damages Amount pursuant to Section 5.01(d)(i) (A) if (A) within 90 days after the date of thethe occurrence
Appears in 1 contract
Samples: Intangible Transition Property Sale Agreement (Peco Energy Transition Trust)
Liability of Seller; Indemnities and Liquidated Damages. (a) The Seller shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Seller under the this Agreement.
(b) The Seller shall indemnify the Issuer and the Bond Trustee, for itself and on behalf of the Transition Bondholders, and each of their respective trustees, officers, directors and agents for, and defend and hold harmless each such Person from and against, any and all taxes (other than any taxes imposed on Transition Bondholders solely as a result of their ownership of Transition Bonds) that may at any time be imposed on or asserted against any such Person as a result of the acquisition or holding of the Transferred Intangible Transition Property by the Issuer or the issuance and sale by the Issuer of the Transition Bonds, including any sales, gross receipts, general corporation, tangible personal property, privilege or license taxes.
(i) The Seller shall indemnify the Issuer and the Bond Trustee, on behalf of the Transition Bondholders, each of their respective trustees, officers, directors, and agents, and any Counterparty, and defend and hold harmless each such Person from and against, any and all Losses that may be imposed on, incurred by or asserted against any such Person as a result of (x) the Seller's wilful misconduct, bad faith or gross negligence in the performance of its duties or observance of its covenants under this Agreement, (y) the Seller's reckless disregard of its obligations and duties under this Agreement or (z) the Seller's breach of any of its representations or warranties contained in this Agreement other than those contained in Sections 3.08(b), 3.08(c), 3.08(d)(i), (ii) and (iv) and 3.08(f) (any event described in any of the foregoing clauses (x), (y) or (z), an "Indemnification Event"); provided, however, that the amount of such Losses (other than those payable pursuant to Section 5.01(e)) for which the Seller shall be obligated to provide indemnification shall not exceed the Liquidated Damages Amount. Amounts on deposit in the Reserve Subaccount, the Overcollateralization Subaccount and the Capital Subaccount shall not be available to satisfy any Losses for which indemnification is provided in this Agreement.
(ii) If an Indemnification Event shall occur, upon receipt of written notice thereof by the Seller from the Issuer or the Bond Trustee, the Seller shall notify the Servicer of the occurrence of such event so that the Servicer may, pursuant to Section 8 of Annex 1 to the Master Servicing Agreement, calculate (x) on the day which is 90 days after receipt of such notice by the Seller (the "Initial Loss Calculation Date") the amount of Losses expected to be incurred as a result of such Indemnification Event from and including the time of its occurrence through and including the next Monthly Allocation Date after the Initial Loss Calculation Date and (y) to the extent that Losses may be incurred as a result of such Indemnification Event in an amount exceeding the amount of Losses calculated pursuant to clause (x) above and unless the Seller has paid Liquidated Damages with respect to such Indemnification Event pursuant to Section 5.01(d)(i)(B), not later than each Monthly Allocation Date succeeding the Initial Loss Calculation Date, the amount of Losses expected to be incurred as a result of such Indemnification Event from but excluding such Monthly Allocation Date through and including the next Monthly Allocation Date. All such calculations shall be subject to the approval of the Bond Trustee. If such Indemnification Event shall continue unremedied beyond the Initial Loss Calculation Date, the Seller shall pay to the Bond Trustee, as assignee of the Issuer, for deposit into the General Subaccount of the Collection Account, (x) on the Monthly Allocation Date immediately following the Initial Loss Calculation Date, the amount of LossesLosses calculated pursuant to clause (x) and clause (y) of the preceding sentence with respect to such Monthly Allocation Date and (y) on each subsequent Monthly Allocation Date, the amount of Losses calculated as of such date pursuant to clause (y) of the preceding sentence. Upon payment pursuant to this Section 5.01(c)(ii), the Seller shall have no further obligations with respect to such Losses to the extent of such payments.
(d) (i) In the event of a breach by the Seller of any representation and warranty specified in (A) Section 3.08(b), 3.08(c), 3.08(d)(i), (ii) or (iv) or 3.08(f) of this Agreement that has a material adverse effect on the Transition Bondholders or (B) Sections 3.01, 3.03, 3.04, 3.05 and 3.08(d)(iii), (v) or (vi) of this Agreement for which the full amount of Losses attributable thereto are reasonably expected to be incurred beyond a 90-day period immediately following the occurrence of such Indemnification Event, the Seller shall pay to the Bond Trustee, as assignee of the Issuer, for deposit into the General Subaccount of the Collection Account the Liquidated Damages Amount. Such amount shall be paid (x) in the case of clause (A) above, on the Liquidated Damages Payment Date or (y) in the case of clause (B) above, on the First Monthly Allocation Date following the expiration of the 90-day period set forth in such clause (B). Notwithstanding the foregoing, if the Seller is obligated pursuant to this Section 5.01(d)
(i) to pay amounts for deposit into the General Subaccount of the Collection Account for a breach of a representation and warranty which relates to one or more of the Qualified Rate Orders, but not all of the Qualified Rate Orders, then the Liquidated Damages Amount will include the then outstanding principal amount of only the Affected Transition Bonds as of the Liquidated Damages Redemption Date and unpaid interest accrued thereon.
(ii) The Seller shall not be obligated to pay the Liquidated Damages Amount pursuant to Section 5.01(d)(i) (A) if (A) within 90 days after the date of thethe occurrence thereof such breach is cured or the Seller takes remedial action such that there is not and will not be a material adverse effect on the Transition Bondholders as a result of such breach and (B) either (i) if the Seller had, immediately prior to the breach, a long term debt rating of at least "A3" by Moody's and "BBB" by Standard & Poor's and the equivalent of "BBB" by any other Rating Agency, the Seller enters into a binding agreement with the Issuer to pay any amounts necessary so that all interest payments due on the Transition Bonds during such 90-day period will be paid in full, or (ii) if the Seller does not have such long term debt ratings, the Seller deposits, within two Business Days after such breach, an amount in escrow with the Bond Trustee sufficient, taking into account amounts on deposit in the Collection Account which will be available for such purpose, to pay all interest payments which will become due on the Transition Bonds during such 90-day period. In the event that within such 90-day period (i) such breach is cured or (ii) the Seller takes the remedial action specified by Section 5.01(d)(ii)(A), any amounts paid by the Seller to the Bond Trustee, as assignee of the Issuer pursuant to Section 5.01(d)(ii)(B), which have not been distributed pursuant to the Indenture shall be returned to the Seller at the end of such 90-day period.
Appears in 1 contract
Samples: Intangible Transition Property Sale Agreement (Peco Energy Transition Trust)
Liability of Seller; Indemnities and Liquidated Damages. (a) The Seller shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Seller under the Agreement.
(b) The Seller shall indemnify the Issuer and the Bond Trustee, for itself and on behalf of the Transition Bondholders, and each of their respective trustees, officers, directors and agents for, and defend and hold harmless each such Person from and against, any and all taxes (other than any taxes imposed on Transition Bondholders solely as a result of their ownership of Transition Bonds) that may at any time be imposed on or asserted against any such Person as a result of the acquisition or holding of the Transferred Intangible Transition Property by the Issuer or the issuance and sale by the Issuer of the Transition Bonds, including any sales, gross receipts, general corporation, tangible personal property, privilege or license taxes.
(i) The Seller shall indemnify the Issuer and the Bond Trustee, on behalf of the Transition Bondholders, and each of their respective trustees, officers, directors, and agents, and any Counterpartyagents for, and defend and hold harmless each such Person from and against, any and all Losses that may be imposed on, incurred by or asserted against any such Person as a result of (x) the Seller's wilful misconduct, bad faith or gross negligence in the performance of its duties or observance of its covenants under this Agreement, (y) the Seller's reckless disregard of its obligations and duties under this Agreement or (z) the Seller's breach of any of its representations or warranties contained in this Agreement other than those contained in Sections 3.08(b), 3.08(c), 3.08(d)(i), (ii) and (iv) and 3.08(f) (any event described in any of the foregoing clauses (x), (y) or (z), an "Indemnification Event"); provided, however, that the amount of such Losses (other than those payable pursuant to Section 5.01(e)) for which the Seller shall be obligated to provide indemnification shall not exceed the Liquidated Damages Amount. Amounts on deposit in the Reserve Subaccount and the Capital Subaccount shall not be available to satisfy any Losses for which indemnification is provided in this Agreement.
(ii) If an Indemnification Event shall occur, upon receipt of written notice thereof by the Seller from the Issuer or the Bond Trustee, the Seller shall notify the Servicer of the occurrence of such event so that the Servicer may, pursuant to Section 8 of Annex 1 to the Master Servicing Agreement, calculate (x) on the day which is 90 days after receipt of such notice by the Seller (the "Initial Loss Calculation Date") the amount of Losses expected to be incurred as a result of such Indemnification Event from and including the time of its occurrence through and including the next Monthly Allocation Date after the Initial Loss Calculation Date and (y) to the extent that Losses may be incurred as a result of such Indemnification Event in an amount exceeding the amount of Losses calculated pursuant to clause (x) above and unless the Seller has paid Liquidated Damages with respect to such Indemnification Event pursuant to Section 5.01(d)(i)(B), not later than each Monthly Allocation Date succeeding the Initial Loss Calculation Date, the amount of Losses expected to be incurred as a result of such Indemnification Event from but excluding such Monthly Allocation Date through and including the next Monthly Allocation Date. All such calculations shall be subject to the approval of the Bond Trustee. If such Indemnification Event shall continue unremedied beyond the Initial Loss Calculation Date, the Seller shall pay to the Bond Trustee, as assignee of the Issuer, for deposit into the General Subaccount of the Collection Account, (x) on the Monthly Allocation Date immediately following the Initial Loss Calculation Date, the amount of Losses
(i) In the event of a breach by the Seller of any representation and warranty specified in (A) Section 3.08(b), 3.08(c), 3.08(d)(i), (ii) or (iv) or 3.08(f) of this Agreement that has a material adverse effect on the Transition Bondholders or (B) Sections 3.01, 3.03, 3.04, 3.05 and 3.08(d)(iii), (v) or (vi) of this Agreement for which the full amount of Losses attributable thereto are reasonably expected to be incurred beyond a 90-day period immediately following the occurrence of such Indemnification Event, the Seller shall pay to the Bond Trustee, as assignee of the Issuer, for deposit into the General Subaccount of the Collection Account the Liquidated Damages Amount. Such amount shall be paid (x) in the case of clause (A) above, on the Liquidated Damages Payment Date or (y) in the case of clause (B) above, on the First Monthly Allocation Date following the expiration of the 90-day period set forth in such clause (B).
(ii) The Seller shall not be obligated to pay the Liquidated Damages Amount pursuant to Section 5.01(d)(i) (A) if (A) within 90 days after the date of theclauses
Appears in 1 contract
Samples: Intangible Transition Property Sale Agreement (Peco Energy Transition Trust)
