Common use of Servicer Indemnities Clause in Contracts

Servicer Indemnities. (a) Without limiting any other rights that the Agent or any Secured Party may have hereunder or under applicable law, the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts actually awarded against or incurred by any of them arising out of or as a result of any Covered Servicing Matters (as defined below), excluding, however: (i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification; (ii) taxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Lenders of Loans as a loan or loans by the Lenders to Borrower secured by the Receivables, the Related Security, the Collection Accounts and the Collections; (iii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are late, delinquent or uncollectible on account of the insolvency, bankruptcy, payment history or lack of creditworthiness of the related Obligor; or (iv) Indemnified Amounts to the extent the same arise as a result of the performance by the Servicer of its duties and obligations in accordance with the terms of this Agreement; provided, however, that nothing contained in this sentence shall limit the liability of the Servicer for amounts otherwise specifically provided to be paid by the Servicer under the terms of this Agreement. (b) Subject in each case to clause (a)(i), (ii), (iii) and (iv) above, each of the following shall be a "Covered Servicing Matter": (i) any representation or warranty made by any Servicer Party under or in connection with any Monthly Report, this Agreement, any other Transaction Document to which it is a party or that is delivered by it or any other information or report delivered by any Servicer Party pursuant hereto or thereto that shall have been false or incorrect when made or deemed made; (ii) the failure by any Servicer Party to service, collect or administer any Receivables Related Security or Contract related thereto in accordance with this Agreement, the related Contract, the Credit and Collection Policy (but subject to the provisions of this Agreement), applicable laws, rules and/or regulations (including, without limitation any failure by any Servicer Party to have or maintain any license or other government authorization, to be qualified to do business in any jurisdiction or to file any notice of business activities or similar report in such jurisdiction); (iii) any failure of any Servicer Party to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document; (iv) any suit or other claim arising out of or in connection with the servicing, administration or collection of any Contract or any Receivable or Related Security; (v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable resulting from the servicing, administration or collection of such Receivable; (vi) the commingling of Collections of Receivables at any time with other funds of any Servicer Party or any failure of Collections to be deposited into a Lock-Box or a Collection Account as required by Section 8.2(b) hereof; (vii) any Amortization Event described in Section 9.1(g); (viii) any breach by any Servicer Party of any term of this Agreement or any other Transaction Document applicable to it which reduces or impairs the rights of the Agent or any other Person with respect to any Receivable or the value of any Receivable; (ix) any failure by the Servicer to maintain or to cause any Originator or Servicer Party to maintain, all indebtedness and other obligations owed to Borrower or any Originator that, on the date such indebtedness or other obligation arises (the "Creation Date") on the "Commercial Management System" (excluding Districts 338, 418, 777, 1251, 1625, 1626, 1639, 1726 and 1793) of any Originator or any Servicer Party, on such "Commercial Management System" (excluding Districts 338, 418, 777, 1251, 1625, 1626, 1639, 1726 and 1793) at all times from and after such Creation Date until such time as such indebtedness or other obligations are no longer subject to the terms of this Agreement.

Servicer Indemnities. (a) Without limiting any other rights that the Agent or any Secured Party may have hereunder or under applicable law, the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts actually awarded against or incurred by any of them arising out of or as a result of any Covered Servicing Matters (as defined below), excluding, however: (i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification; (ii) taxes imposed by the jurisdiction in which such Indemnified Party's ’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Lenders of Loans as a loan or loans by the Lenders to Borrower secured by the Receivables, the Related Security, the Collection Accounts and the Collections; (iii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are late, delinquent or uncollectible on account of the insolvency, bankruptcy, payment history or lack of creditworthiness of the related Obligor; or (iv) Indemnified Amounts to the extent the same arise as a result of the performance by the Servicer of its duties and obligations in accordance with the terms of this Agreement; provided, however, that nothing contained in this sentence shall limit the liability of the Servicer for amounts otherwise specifically provided to be paid by the Servicer under the terms of this Agreement. (b) Subject in each case to clause (a)(i), (ii), (iii) and (iv) above, each of the following shall be a "“Covered Servicing Matter"”: (i) any representation or warranty made by any Servicer Party under or in connection with any Monthly Report, this Agreement, any other Transaction Document to which it is a party or that is delivered by it or any other information or report delivered by any Servicer Party pursuant hereto or thereto that shall have been false or incorrect when made or deemed made; (ii) the failure by any Servicer Party to service, collect or administer any Receivables Related Security or Contract related thereto in accordance with this Agreement, the related Contract, the Credit and Collection Policy (but subject to the provisions of this Agreement), applicable laws, rules and/or regulations (including, without limitation any failure by any Servicer Party to have or maintain any license or other government authorization, to be qualified to do business in any jurisdiction or to file any notice of business activities or similar report in such jurisdiction); (iii) any failure of any Servicer Party to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document; (iv) any suit or other claim arising out of or in connection with the servicing, administration or collection of any Contract or any Receivable or Related Security; (v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable resulting from the servicing, administration or collection of such Receivable; (vi) the commingling of Collections of Receivables at any time with other funds of any Servicer Party or any failure of Collections to be deposited into a Lock-Box or a Collection Account as required by Section 8.2(b) hereof; (vii) any Amortization Event described in Section 9.1(g); (viii) any breach by any Servicer Party of any term of this Agreement or any other Transaction Document applicable to it which reduces or impairs the rights of the Agent or any other Person with respect to any Receivable or the value of any Receivable; (ix) any failure by the Servicer to maintain or to cause any Originator or Servicer Party to maintain, all indebtedness and other obligations owed to Borrower or any Originator that, on the date such indebtedness or other obligation arises (the "“Creation Date"”) on the "“Commercial Management System" ” (excluding Districts 338, 418, 777, 1251, 1625, 1626, 1639, 1726 the Excluded CMS Districts) or “InfoPro System” (excluding the Excluded InfoPro System Divisions and 1793InfoPro System obligations with a class code of RESI) of any Originator or any Servicer Party, on such "“Commercial Management System" ” (excluding Districts 338, 418, 777, 1251, 1625, 1626, 1639, 1726 the Excluded CMS Districts) or “InfoPro System” (excluding the Excluded InfoPro System Divisions and 1793InfoPro System obligations with a class code of RESI) at all times from and after such Creation Date until such time as such indebtedness or other obligations are no longer subject to the terms of this Agreement.

Servicer Indemnities. (a) Without limiting any other rights that the Agent or any Secured Party may have hereunder or under applicable law, the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts actually awarded against or incurred by any of them arising out of or as a result of any Covered Servicing Matters (as defined below), excluding, however: (i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification; (ii) taxes imposed by the jurisdiction in which such Indemnified Party's ’s principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Lenders of Loans as a loan or loans by the Lenders to Borrower secured by the Receivables, the Related Security, the Collection Accounts and the Collections; (iii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are late, delinquent or uncollectible on account of the insolvency, bankruptcy, payment history or lack of creditworthiness of the related Obligor; or (iv) Indemnified Amounts to the extent the same arise as a result of the performance by the Servicer of its duties and obligations in accordance with the terms of this Agreement; provided, however, that nothing contained in this sentence shall limit the liability of the Servicer for amounts otherwise specifically provided to be paid by the Servicer under the terms of this Agreement. (b) Subject in each case to clause (a)(i), (ii), (iii) and (iv) above, each of the following shall be a "“Covered Servicing Matter"”: (i) any representation or warranty made by any Servicer Party under or in connection with any Monthly Report, this Agreement, any other Transaction Document to which it is a party or that is delivered by it or any other information or report delivered by any Servicer Party pursuant hereto or thereto that shall have been false or incorrect when made or deemed made; (ii) the failure by any Servicer Party to service, collect or administer any Receivables Related Security or Contract related thereto in accordance with this Agreement, the related Contract, the Credit and Collection Policy (but subject to the provisions of this Agreement), applicable laws, rules and/or regulations (including, without limitation any failure by any Servicer Party to have or maintain any license or other government authorization, to be qualified to do business in any jurisdiction or to file any notice of business activities or similar report in such jurisdiction); (iii) any failure of any Servicer Party to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document; (iv) any suit or other claim arising out of or in connection with the servicing, administration or collection of any Contract or any Receivable or Related Security; (v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable resulting from the servicing, administration or collection of such Receivable; (vi) the commingling of Collections of Receivables at any time with other funds of any Servicer Party or any failure of Collections to be deposited into a Lock-Box or a Collection Account as required by Section 8.2(b) hereof; (vii) any Amortization Event described in Section 9.1(g); (viii) any breach by any Servicer Party of any term of this Agreement or any other Transaction Document applicable to it which reduces or impairs the rights of the Agent or any other Person with respect to any Receivable or the value of any Receivable; (ix) any failure by the Servicer to maintain or to cause any Originator or Servicer Party to maintain, all indebtedness and other obligations owed to Borrower or any Originator that, on the date such indebtedness or other obligation arises (the "“Creation Date"”) on the "“Commercial Management System" ” (excluding Districts 338the Excluded CMS Districts), 418, 777, 1251, 1625, 1626, 1639, 1726 the “InfoPro System” (excluding the Excluded InfoPro System Divisions and 1793InfoPro System obligations with a class code of RESI) or the “TRUX System” (excluding the Excluded TRUX System Divisions) of any Originator or any Servicer Party, on such "“Commercial Management System" ” (excluding Districts 338the Excluded CMS Districts), 418, 777, 1251, 1625, 1626, 1639, 1726 the “InfoPro System” (excluding the Excluded InfoPro System Divisions and 1793InfoPro System obligations with a class code of RESI) or the “TRUX System” (excluding the Excluded TRUX System Divisions) at all times from and after such Creation Date until such time as such indebtedness or other obligations are no longer subject to the terms of this Agreement.

Servicer Indemnities. (a) Without limiting any other rights that the Agent or any Secured Indemnified Party may have hereunder or under applicable law, the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for from and against any and all Indemnified Amounts actually awarded against relating to or incurred by any of them arising out of or as a result of any Covered Servicing Matters (as defined below), excluding, however: (i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification; (ii) taxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Lenders of Loans as a loan or loans by the Lenders to Borrower secured by the Receivables, the Related Security, the Collection Accounts and the Collections; (iii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are late, delinquent or uncollectible on account of the insolvency, bankruptcy, payment history or lack of creditworthiness of the related Obligor; or (iv) Indemnified Amounts to the extent the same arise as a result of the performance by the Servicer of its duties and obligations in accordance with the terms of this Agreement; provided, however, that nothing contained in this sentence shall limit the liability of the Servicer for amounts otherwise specifically provided to be paid by the Servicer under the terms of this Agreement. (b) Subject in each case to clause (a)(i), (ii), (iii) and (iv) above, each of the following shall be a "Covered Servicing Matter"resulting from: (i) any representation or warranty made by the Servicer (or any Servicer Party officers of the Servicer) in writing under or in connection with any Monthly Report, this Agreement, any other Transaction Document to which it is a party or that is delivered by it or any other information or report delivered by any Servicer Party such Person pursuant hereto or thereto that thereto, which shall have been false or incorrect when made or deemed made; (ii) the failure by the Servicer to comply with any Servicer Party applicable law, rule or regulation with respect to service, collect or administer any Receivables Related Security Dealer Receivable or Contract related thereto in accordance with this Agreement, the related Contract, the Credit and Collection Policy (but subject to the provisions of this Agreement), applicable laws, rules and/or regulations (including, without limitation any failure by any Servicer Party to have or maintain any license or other government authorization, to be qualified to do business in any jurisdiction or to file any notice of business activities or similar report in such jurisdiction)thereto; (iii) any failure of any the Servicer Party to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document; (iv) the commingling of Collections of Dealer Receivables at any suit or time with other claim arising out of or in connection with the servicing, administration or collection of any Contract or any Receivable or Related Securityfunds; (v) any disputefailure of the Seller to have had (but for the transactions contemplated hereby) legal and equitable title to, claimand ownership of any Dealer Receivable and the Related Security and Collections with respect thereto, offset or defense free and clear of any Adverse Claim (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable resulting from the servicing, administration or collection of such Receivableas created hereunder); (vi) any failure to have Transferred legal title to the commingling of Collections of Receivables at any time with other funds of any Servicer Party Pool Assets to the Custodian, or any failure to vest and maintain vested in the Agent and the Purchasers, or to Transfer to the Agent and the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Ownership Interests contemplated hereunder) in the Dealer Receivables arising on or prior to the Termination Date and the Related Security and the Collections to be deposited into with respect thereto free and clear of any Adverse Claim created by or arising as a Lock-Box or result of a Collection Account as required by Section 8.2(b) hereofclaim against Servicer; (vii) the failure to have filed, or any Amortization Event described delay in Section 9.1(g)filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Dealer Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, to the extent the Servicer is required to file the same, whether at the time of any Incremental Purchase or Reinvestment Purchase or at any subsequent time; (viii) any breach action or omission by any the Servicer Party of any term of (other than in accordance with or as contemplated by this Agreement or any other Transaction Document applicable to it Document) which reduces or impairs the rights of the Custodian, the Agent or any other Person the Purchasers with respect to any Dealer Receivable or the value of any such Dealer Receivable;; or (ix) the failure of any failure Dealer Receivable treated as or represented to be an Eligible Receivable at any time by the Servicer (including, without limitation, for purposes of calculating the Net Eligible Receivables Balance) to maintain or to cause any Originator or Servicer Party to maintain, all indebtedness and other obligations owed to Borrower or any Originator that, on the date be an Eligible Receivable as of such indebtedness or other obligation arises (the "Creation Date") on the "Commercial Management System" (excluding Districts 338, 418, 777, 1251, 1625, 1626, 1639, 1726 and 1793) of any Originator or any Servicer Party, on such "Commercial Management System" (excluding Districts 338, 418, 777, 1251, 1625, 1626, 1639, 1726 and 1793) at all times from and after such Creation Date until such time as such indebtedness or other obligations are no longer subject to the terms of this Agreementtime.