Indemnities by the Originators. Without limiting any other rights that the Buyer may have hereunder or under Law, the Originators, jointly and severally, hereby agree to indemnify the Buyer, each of its officers, directors, employees, agents, employees and respective assigns, the Administrative Agent and each Purchaser (each of the foregoing Persons being individually called a “Sale and Contribution Indemnified Party”), forthwith on demand, from and against any and all damages, claims, losses, judgments, liabilities, penalties and related costs and expenses (including Attorney Costs) (all of the foregoing being collectively called “Sale and Contribution Indemnified Amounts”) awarded against or incurred by any of them arising out of, relating to or in connection with: (a) the breach of any representation or warranty made or deemed made by any Originator (or any employee, officer or agent thereof) under or in connection with this Agreement or any of the other Transaction Documents, or any information or report delivered by or on behalf of any Originator pursuant hereto or thereto which shall have been untrue or incorrect when made or deemed made or delivered; (b) the failure by any Originator to transfer good and marketable title in and to any Pool Receivable or Related Right to the Buyer, free and clear of any Adverse Claims, and that is freely assignable, pursuant to this Agreement; (c) the failure by any Originator to comply with the terms of any Transaction Document or with any Law with respect to any Pool Receivable or the related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such Law; (d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim; (e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Laws with respect to any Pool Receivable or the Related Rights; (f) any suit or claim related to the Pool Receivables (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable); (g) any dispute, claim, offset or defense (other than discharge in bankruptcy or any such dispute, claim, offset or defense relating to or arising from insolvency, lack of creditworthiness or other financial inability to pay of the Obligor) of the Obligor to the payment of any Receivable in the Receivables Pool (including a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the property, products or services giving rise to such Receivable or the furnishing or failure to furnish such property, products or services; (h) any failure of any Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable; (i) any products liability, environmental or other claim arising out of or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Receivable; (j) the misdirection of Collections or the commingling of Collections of Pool Receivables at any time with other funds; (k) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness; (l) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or in respect of any Pool Receivable or any Related Rights; (m) any claim brought by any Person other than a Sale and Contribution Indemnified Party arising from any activity by any Originator or any Affiliate thereof in servicing, administering or collecting any Pool Receivable; (n) the failure by any Originator to pay when due any Taxes, including sales, excise or personal property Taxes; (o) [reserved]; (p) [reserved]; (q) 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 Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or ownership of the Receivables or any Related Rights; (r) any liability under Section 4.03 of the Receivables Purchase Agreement; or (s) the failure of any Receivable sold, transferred, contributed or assigned hereunder as an Eligible Receivable to actually constitute an Eligible Receivable on the date of sale, transfer, contribution or assignment. provided that such indemnity shall not be available to any Sale and Contribution Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of a Sale and Contribution Indemnified Party or (y) to the extent the same includes losses in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. If for any reason the foregoing indemnification is unavailable to any Sale and Contribution Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Sale and Contribution Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of the Originators and their Affiliates, on the one hand, and such Sale and Contribution Indemnified Party, on the other hand, in the matters contemplated by this Agreement as well as the relative fault of the Originators and their Affiliates and such Sale and Contribution Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations; provided that, notwithstanding the foregoing, the Originators shall have no contribution obligation to the extent such loss, claim, damage or liability are in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. The reimbursement, indemnity and contribution obligations of the Originators under this Section 9.1 shall be in addition to any liability which the Originators may otherwise have, shall extend upon the same terms and conditions to the Sale and Contribution Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of such Originator and the Sale and Contribution Indemnified Parties. Any indemnification or contribution under this Section 9.1 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Sale and Contribution Agreement (Fortrea Holdings Inc.)
Indemnities by the Originators. Without limiting any other rights that the Buyer may have hereunder or under Applicable Law, the Originatorseach Originator and Centric, jointly and severally, hereby agree agrees to indemnify the Buyer, each of its officers, directors, employees, agents, employees and respective assigns, the Administrative Agent and each Purchaser (each of the foregoing Persons being individually called a “Purchase and Sale and Contribution Indemnified Party”), forthwith on demand, from and against any and all damages, claims, losses, judgments, liabilities, penalties and related costs and expenses (including reasonable Attorney Costs) (all of the foregoing being collectively called “Purchase and Sale and Contribution Indemnified Amounts”) awarded against or incurred by any of them arising out of, relating to or in connection with:
(a) the breach of any representation representation, warranty or warranty statement made or deemed made by any such Originator (or any employee, officer or agent thereofof such Originator) under or in connection with this Agreement or any of the other Transaction Documents, or any information or report delivered by or on behalf of any such Originator pursuant hereto or thereto which shall have been untrue or incorrect when made or deemed made or delivered;
(b) the failure transfer by such Originator of any Originator to transfer good and marketable title interest in and to any Pool Receivable or Related Right other than the transfer of any Pool Receivable and Related Security to the Buyer, free Buyer pursuant to this Agreement and clear the grant of any Adverse Claims, and that is freely assignable, a security interest to the Buyer pursuant to this Agreement;
(c) the failure by any such Originator to comply with the terms of any Transaction Document or with any Applicable Law with respect to any Pool Receivable or the related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such Applicable Law;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool ReceivableReceivable originated by such Originator);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy or any such dispute, claim, offset or defense relating to or arising from insolvency, lack of creditworthiness or other financial inability to pay of the Obligorbankruptcy) of the Obligor to the payment of any Receivable in the Receivables Pool (including including, without limitation, a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the property, products or services giving rise to such Receivable or the furnishing or failure to furnish such property, products or services;
(h) any failure of any such Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(i) any products liability, environmental or other claim arising out of or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Receivable;
(j) the misdirection of Collections or the commingling of Collections of Pool Receivables at any time with other funds, including any commingling in the GBGWells Exception Account, HSBC Exception Account or any CIT Account;
(kj) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(lk) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or in respect of any Pool Receivable or any Related Rights;
(ml) any claim brought by any Person other than a Purchase and Sale and Contribution Indemnified Party arising from any activity by any such Originator or any Affiliate thereof of such Originator in servicing, administering or collecting any Pool Receivable;
(nm) the failure by any such Originator to pay when due any Taxes, including including, without limitation, sales, excise or personal property Taxes;
(n) any investigation, litigation, dispute or proceeding (actual or threatened) related to (A) the GBGany W▇▇▇▇ Exception Account, any HSBC Exception Account or any CIT Account or any amounts on deposit therein or (B) any Intercreditor Agreement;
(o) [reserved]any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Pool Receivable (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to such Pool Receivable or the furnishing or failure to furnish any such goods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(p) [reserved];
(q) any Tax product liability claim arising out of or governmental fee in connection with goods or charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including Attorney Costs in defending against services that are the same, which are required to be paid by reason of the purchase or ownership of the Receivables or any Related Rights;
(r) any liability under Section 4.03 of the Receivables Purchase Agreement; or
(s) the failure subject of any Receivable sold, transferred, contributed or assigned hereunder as an Eligible Receivable to actually constitute an Eligible Receivable on the date of sale, transfer, contribution or assignment. provided that such indemnity shall not be available to any Sale and Contribution Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of a Sale and Contribution Indemnified Party or (y) to the extent the same includes losses in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. If for any reason the foregoing indemnification is unavailable to any Sale and Contribution Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable generated by such Sale and Contribution Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of the Originators and their Affiliates, on the one hand, and such Sale and Contribution Indemnified Party, on the other hand, in the matters contemplated by this Agreement as well as the relative fault of the Originators and their Affiliates and such Sale and Contribution Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations; provided that, notwithstanding the foregoing, the Originators shall have no contribution obligation to the extent such loss, claim, damage or liability are in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. The reimbursement, indemnity and contribution obligations of the Originators under this Section 9.1 shall be in addition to any liability which the Originators may otherwise have, shall extend upon the same terms and conditions to the Sale and Contribution Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of such Originator and the Sale and Contribution Indemnified Parties. Any indemnification or contribution under this Section 9.1 shall survive the termination of this Agreement.Originator;
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights that the Buyer may have hereunder or under Applicable Law, the Originatorseach Originator and NuStar Energy, jointly and severally, hereby agree agrees to indemnify the Buyer, each of its officers, directors, employees, agents, employees and respective assigns, the Administrative Agent Agent, each Lender and each Purchaser Group Agent (each of the foregoing Persons being individually called a “Purchase and Sale and Contribution Indemnified Party”), forthwith on demand, from and against any and all damages, claims, losses, judgments, liabilities, penalties and related costs and expenses (including Attorney Costs) (all of the foregoing being collectively called “Purchase and Sale and Contribution Indemnified Amounts”) awarded against or incurred by any of them arising out of, relating to or in connection with:
(a) the breach of any representation or warranty made or deemed made by any such Originator (or any employee, officer or agent thereofof such Originator) under or in connection with this Agreement or any of the other Transaction Documents, or any information or report delivered by or on behalf of any such Originator pursuant hereto or thereto which shall have been untrue or incorrect when made or deemed made or delivered;
(b) the failure transfer by such Originator of any Originator to transfer good and marketable title interest in and to any Pool Receivable or Related Right other than the transfer of any Pool Receivable and Related Security to the Buyer, free Buyer pursuant to this Agreement and clear the grant of any Adverse Claims, and that is freely assignable, a security interest to the Buyer pursuant to this Agreement;
(c) the failure by any such Originator to comply with the terms of any Transaction Document or with any Applicable Law with respect to any Pool Receivable or the related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such Applicable Law;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;; 708335522 13436693
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the chemicals or other property, products or services that are the subject of any Pool ReceivableReceivable originated by such Originator);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy or any such dispute, claim, offset or defense relating to or arising from insolvency, lack of creditworthiness or other financial inability to pay of the Obligorbankruptcy) of the Obligor to the payment of any Receivable in the Receivables Pool (including a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the petrochemicals or other property, products or services giving rise to such Receivable or the furnishing or failure to furnish such chemicals or other property, products or services;
(h) any failure of any such Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(i) any products liability, environmental or other claim arising out of or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Receivable;
(j) the misdirection of Collections or the commingling of Collections of Pool Receivables at any time with other funds;
(kj) the Servicer’s failure or delay to provide any Obligor with an invoice or other evidence of indebtednessindebtedness (so long as NuStar or an Affiliate of NuStar is the Servicer);
(lk) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or in respect of any Pool Receivable or any Related Rights;
(ml) any claim brought by any Person other than a Purchase and Sale and Contribution Indemnified Party arising from any activity by any such Originator or any Affiliate thereof of such Originator in servicing, administering or collecting any Pool Receivable;
(nm) the failure by any such Originator to pay when due any Taxestaxes, including including, without limitation, sales, excise or personal property Taxestaxes;
(n) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Pool Receivable (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to such Pool Receivable or the furnishing or failure to furnish any such goods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness; 708335522 13436693
(o) [reserved]any product liability claim arising out of or in connection with goods or services that are the subject of any Receivable generated by such Originator;
(p) [reserved];
(q) any Tax tax or governmental fee or charge, all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including without limitation Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or ownership of the Receivables generated by such Originator or any Related Rights;
(r) Rights connected with any liability under Section 4.03 of the Receivables Purchase Agreementsuch Receivables; or
(sq) any action taken by the failure of Administrative Agent in accordance with Applicable Law as attorney-in-fact for such Originator pursuant to this Agreement or any Receivable sold, transferred, contributed or assigned hereunder as an Eligible Receivable to actually constitute an Eligible Receivable on the date of sale, transfer, contribution or assignment. other Transaction Document; provided that such indemnity shall not be available to any Purchase and Sale and Contribution Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted solely from the gross negligence or willful misconduct of a Purchase and Sale and Contribution Indemnified Party or Party, (y) result from a claim brought by Originator, NuStar Energy or an Affiliate for breach of such Purchase and Sale Indemnified Party’s obligations under this Agreement or under any other Transaction Document, if the Originator, NuStar Energy or an Affiliate has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction or (z) constitute recourse with respect to the extent the same includes losses in respect of Receivables that are uncollectable a Pool Receivable by reason of the bankruptcy, bankruptcy or insolvency, lack of creditworthiness or other the financial inability to payor credit condition or financial default, of the related Obligor. Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in this Article IX, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be deemed to be not so qualified. If for any reason the foregoing indemnification is unavailable to any Purchase and Sale and Contribution Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Purchase and Sale and Contribution Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of the Originators such Originator and their its Affiliates, on the one hand, and such Purchase and Sale and Contribution Indemnified Party, on the other hand, in the matters contemplated by this Agreement as well as the relative fault of the Originators such Originator and their its Affiliates and such Purchase and Sale and Contribution Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations; provided that, notwithstanding the foregoing, the Originators shall have no contribution obligation to the extent such loss, claim, damage or liability are in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. The reimbursement, indemnity and contribution obligations of the Originators such Originator under this Section 9.1 shall be in addition to any liability which the Originators such Originator may otherwise have, shall extend upon the same terms and conditions to the Purchase and Sale and Contribution Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of such Originator and the Purchase and Sale and Contribution Indemnified Parties. Any indemnification or contribution under this Section 9.1 shall survive the termination of this Agreement.. 708335522 13436693
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights that the Buyer may have hereunder or under Law, the Originators, jointly and severally, hereby agree to indemnify the Buyer, each of its officers, directors, employees, agents, employees and respective assigns, the Administrative Agent and each Purchaser (each of the foregoing Persons being individually called a “Sale and Contribution Indemnified Party”), forthwith on demand, from and against any and all damages, claims, losses, judgments, liabilities, penalties and related costs and expenses (including Attorney Costs) (all of the foregoing being collectively called “Sale and Contribution Indemnified Amounts”) awarded against or incurred by any of them arising out of, relating to or in connection with:
(a) the breach of any representation or warranty made or deemed made by any Originator (or any employee, officer or agent thereof) under or in connection with this Agreement or any of the other Transaction Documents, or any information or report delivered by or on behalf of any Originator pursuant hereto or thereto which shall have been untrue or incorrect when made or deemed made or delivered;
(b) the failure by any Originator to transfer good and marketable title in and to any Pool Receivable or Related Right to the Buyer, free and clear of any Adverse Claims, and that is freely assignable, pursuant to this Agreement;
(c) the failure by any Originator to comply with the terms of any Transaction Document or with any Law with respect to any Pool Receivable or the related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such Law;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy or any such dispute, claim, offset or defense relating to or arising from insolvency, lack of creditworthiness or other financial inability to pay of the Obligor) of the Obligor to the payment of any Receivable in the Receivables Pool (including a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the property, products or services giving rise to such Receivable or the furnishing or failure to furnish such property, products or services;
(h) any failure of any Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(ih) any products liability, environmental or other claim arising out of or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Receivable;
(ji) the misdirection of Collections or the commingling of Collections of Pool Receivables at any time with other funds;
(kj) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(lk) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or in respect of any Pool Receivable or any Related Rights;
(ml) any claim brought by any Person other than a Sale and Contribution Indemnified Party arising from any activity by any Originator or any Affiliate thereof in servicing, administering or collecting any Pool Receivable;
(nm) the failure by any Originator to pay when due any Taxes, including sales, excise or personal property Taxes;
(n) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Pool Receivable (including a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to such Pool Receivable or the furnishing or failure to furnish any such goods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(o) [reserved]any product liability claim arising out of or in connection with goods or services that are the subject of any Receivable;
(p) [reserved];
(q) 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 Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or ownership of the Receivables or any Related Rights;
(rq) any liability under Section 4.03 of the Receivables Purchase Agreement; or
(sr) the failure of any Receivable sold, transferred, contributed or assigned hereunder as an Eligible Receivable to actually constitute an Eligible Receivable on the date of sale, transfer, contribution or assignment. ; provided that that, notwithstanding the foregoing or anything else to the contrary in this Agreement, such indemnity shall not be available to any Sale and Contribution Indemnified Party to the extent that such losses, claims, judgments, damages, liabilities liabilities, penalties or related costs or expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of a Sale and Contribution Indemnified Party or (y) to the extent the same includes losses in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. If for any reason the foregoing indemnification is unavailable to any Sale and Contribution Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Sale and Contribution Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of the Originators and their Affiliates, on the one hand, and such Sale and Contribution Indemnified Party, on the other hand, in the matters contemplated by this Agreement as well as the relative fault of the Originators and their Affiliates and such Sale and Contribution Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations; provided that, notwithstanding the foregoingforegoing or anything else to the contrary in this Agreement, the Originators shall have no contribution obligation to the extent such loss, claim, damage or liability are in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. The reimbursement, indemnity and contribution obligations of the Originators under this Section 9.1 shall be in addition to any liability which the Originators may otherwise have, shall extend upon the same terms and conditions to the Sale and Contribution Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of such Originator and the Sale and Contribution Indemnified Parties. Any indemnification or contribution under this Section 9.1 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Sale and Contribution Agreement (Centuri Holdings, Inc.)
Indemnities by the Originators. Without limiting any other rights that the Buyer may have hereunder or under Law, the Originators, jointly and severally, hereby agree to indemnify the Buyer, each of its officers, directors, employees, agents, employees and respective assigns, the Administrative Agent and each Purchaser Lender (each of the foregoing Persons being individually called a “Sale and Contribution Indemnified Party”), forthwith on demand, from and against any and all damages, claims, losses, judgments, liabilities, penalties and related costs and expenses (including Attorney Costs) (all of the foregoing being collectively called “Sale and Contribution Indemnified Amounts”) awarded against or incurred by any of them arising out of, relating to or in connection with:
(a) the breach of any representation or warranty made or deemed made by any Originator (or any employee, officer or agent thereof) under or in connection with this Agreement or any of the other Transaction Documents, or any information or report delivered by or on behalf of any Originator pursuant hereto or thereto which shall have been untrue or incorrect when made or deemed made or delivered;
(b) the failure by any Originator to transfer good and marketable title in and to any Pool Receivable or Related Right to the Buyer, free and clear of any Adverse Claims, and that is freely assignable, pursuant to this Agreement;
(c) the failure by any Originator to comply with the terms of any Transaction Document or with any Law with respect to any Pool Receivable or the related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such Law;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy or any such dispute, claim, offset or defense relating to or arising from insolvency, lack of creditworthiness or other financial inability to pay of the Obligorbankruptcy) of the Obligor to the payment of any Receivable in the Receivables Pool (including a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the property, products or services giving rise to such Receivable or the furnishing or failure to furnish such property, products or services;
(h) any failure of any Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(i) any products liability, environmental or other claim arising out of or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Receivable;
(j) the misdirection of Collections or the commingling of Collections of Pool Receivables at any time with other fundsfunds (including any such commingling permitted hereby with respect to Ineligible Collection Accounts);
(k) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(l) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or in respect of any Pool Receivable or any Related Rights;
(m) any claim brought by any Person other than a Sale and Contribution Indemnified Party arising from any activity by any Originator or any Affiliate thereof in servicing, administering or collecting any Pool Receivable;
(n) the failure by any Originator to pay when due any Taxes, including sales, excise or personal property TaxesTaxes with respect to any Pool Receivable generated by such Originator;
(o) [reserved]any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Pool Receivable (including a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to such Pool Receivable or the furnishing or failure to furnish any such goods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(p) [reserved]any product liability claim arising out of or in connection with goods or services that are the subject of any Receivable;
(q) 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 Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or ownership of the Receivables or any Related Rights;
(r) any liability under Section 4.03 of the Receivables Purchase Financing Agreement; or
(s) the failure of any Receivable sold, transferred, contributed or assigned hereunder as an Eligible Receivable to actually constitute an Eligible Receivable on the date of sale, transfer, contribution or assignment. , provided that such indemnity shall not be available to any Sale and Contribution Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of a Sale and Contribution Indemnified Party or (y) to the extent the same includes losses in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in this Article IX, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be deemed to be not so qualified. If for any reason the foregoing indemnification is unavailable to any Sale and Contribution Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Sale and Contribution Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of the Originators and their Affiliates, on the one hand, and such Sale and Contribution Indemnified Party, on the other hand, in the matters contemplated by this Agreement as well as the relative fault of the Originators and their Affiliates and such Sale and Contribution Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations; provided that, notwithstanding the foregoing, the Originators shall have no contribution obligation to the extent such loss, claim, damage or liability are in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. The reimbursement, indemnity and contribution obligations of the Originators under this Section 9.1 shall be in addition to any liability which the Originators may otherwise have, shall extend upon the same terms and conditions to the Sale and Contribution Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of such Originator and the Sale and Contribution Indemnified Parties. Any indemnification or contribution under this Section 9.1 shall survive the termination of this Agreement.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights that which the Buyer Company may have hereunder or under Lawapplicable law, the Originatorseach Originator, jointly severally and severallyfor itself alone, hereby agree agrees to indemnify the Buyer, Company and each of its assigns, officers, directors, employees, agents, employees and respective assigns, the Administrative Agent and each Purchaser agents (each of the foregoing Persons being individually called a “"Purchase and Sale and Contribution Indemnified Party”"), forthwith on demand, from and against any and all damages, losses, claims, losses, judgments, liabilities, penalties liabilities and related costs and expenses (expenses, including Attorney Costs) reasonable attorneys' fees and disbursements (all of the foregoing being collectively called “"Purchase and Sale and Contribution Indemnified Amounts”") awarded against or incurred by any of them arising out of, relating to of or in connection withas a result of the following:
(a) the transfer by such Originator 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 or deemed made by any such Originator (or any employee, officer or agent thereof) under or in connection with this Agreement or any of the other Transaction DocumentsDocument, or any information or report delivered by or on behalf of any such Originator pursuant hereto or thereto which shall have been untrue false or incorrect in any respect when made or deemed made or delivered;
(b) the failure by any Originator to transfer good and marketable title in and to any Pool Receivable or Related Right to the Buyer, free and clear of any Adverse Claims, and that is freely assignable, pursuant to this Agreementmade;
(c) the failure by any such Originator to comply with the terms of any Transaction Document applicable law, rule or with any Law regulation with respect to any Pool Receivable or the related Contract; , or the failure nonconformity of any Pool Receivable or the related Contract to conform to with any such Lawapplicable law, rule or regulation;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, failure to vest in the Pool Company an ownership interest in the Receivables (generated by such Originator and all the Related Security) against all Persons (including any bankruptcy trustee or similar Person), in either case, Rights free and clear of any Adverse Claim;
(e) the failure of such Originator to have filedfile with respect to itself, or any delay by such Originator in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Laws applicable laws with respect to any Pool Receivable Receivables or the purported Receivables generated by such Originator or any Related Rights, whether at the time of any purchase or contribution or at any subsequent time;
(f) any suit or claim related to the Pool Receivables (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy or any such dispute, claim, offset or defense relating to or arising from insolvency, lack of creditworthiness or other financial inability to pay of the Obligorbankruptcy) of the Obligor to the payment of any Receivable in the Receivables Pool or purported Receivable generated by such Originator (including including, without limitation, a defense based on such Receivable’s Receivable or the related Contract’s Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) ), or any other claim resulting from the sale of the property, products goods or services giving rise related to any such Receivable or the furnishing of or failure to furnish such property, products goods or services;
(g) any litigation, proceeding or investigation against such Originator;
(h) any failure of any Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(i) any products liability, environmental or other claim arising out of or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Receivable;
(j) the misdirection of Collections or the commingling of Collections of Pool Receivables at any time with other funds;
(k) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(l) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or in respect of any Pool Receivable or any Related Rights;
(m) any claim brought by any Person other than a Sale and Contribution Indemnified Party arising from any activity by any Originator or any Affiliate thereof in servicing, administering or collecting any Pool Receivable;
(n) the failure by any Originator to pay when due any Taxes, including sales, excise or personal property Taxes;
(o) [reserved];
(p) [reserved];
(q) any Tax tax or governmental fee or chargecharge (other than any tax excluded pursuant to the proviso below), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including Attorney Costs the reasonable fees and expenses of counsel in defending against the same, which are required to be paid may arise by reason of the purchase purchase, contribution or ownership of the Receivables or any Related RightsRight connected with any such Receivables;
(ri) any liability under Section 4.03 failure of such Originator to perform its duties or obligations in accordance with the Receivables Purchase Agreementprovisions of this Agreement or any other Transaction Document; orand
(sj) the failure commingling of Collections on Receivables of such Originator, at any Receivable soldtime with other funds; excluding, transferredhowever, contributed or assigned hereunder as an Eligible Receivable to actually constitute an Eligible Receivable on the date of sale, transfer, contribution or assignment. provided that such indemnity shall not be available to any (i) Purchase and Sale and Contribution Indemnified Party Amounts to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted resulting from the gross negligence or willful misconduct on the part of a such Purchase and Sale Indemnified Party, (ii) any indemnification which has the effect of recourse for non-payment of the Receivables due to credit reasons to any indemnitor (except as otherwise specifically provided under this Section 9.1) and Contribution (iii) any overall net income taxes or franchise taxes imposed on such Purchase and Sale Indemnified Party by the jurisdiction under the laws of which such Purchase and Sale Indemnified Party is organized or (y) to the extent the same includes losses in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligorany political subdivision thereof. If for any reason the foregoing indemnification provided above in this Section 9.1 is unavailable to any a Purchase and Sale and Contribution Indemnified Party or is insufficient to hold it such Purchase and Sale Indemnified Party harmless, then each of the Originators, jointly severally and severallyfor itself alone, shall contribute to the amount paid or payable by such Purchase and Sale and Contribution Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of the Originators and their Affiliates, on the one hand, and such Sale and Contribution Indemnified Party, on the other hand, in the matters contemplated by this Agreement as well as the relative fault of the Originators and their Affiliates and such Sale and Contribution Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations; provided that, notwithstanding the foregoing, the Originators shall have no contribution obligation to the maximum extent such loss, claim, damage or liability are in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. The reimbursement, indemnity and contribution obligations of the Originators permitted under this Section 9.1 shall be in addition to any liability which the Originators may otherwise have, shall extend upon the same terms and conditions to the Sale and Contribution Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of such Originator and the Sale and Contribution Indemnified Parties. Any indemnification or contribution under this Section 9.1 shall survive the termination of this Agreementapplicable law.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights that the Buyer may have hereunder or under Applicable Law, the Originatorseach Originator, jointly and severally, hereby agree agrees to indemnify the Buyer, each of its officers, directors, employees, agents, employees and respective assigns, the Administrative Agent and each Purchaser Lender (each of the foregoing Persons being individually called a “Purchase and Sale and Contribution Indemnified Party”), forthwith on demand, from and against any and all claims, expenses, damages, claims, losses, judgments, liabilities, penalties losses and related costs and expenses liabilities (including Attorney Costs) (all of the foregoing being collectively called “Purchase and Sale and Contribution Indemnified Amounts”) awarded against or incurred by any of them arising out of, relating to or in connection withwith this Agreement or any other Transaction Document or the use of the proceeds from the Receivables generated by any Originator and Related Security or the security interest in respect thereof and without limiting or being limited by the foregoing, any of the following:
(a) the breach of any representation representation, warranty or warranty statement made or deemed made by any such Originator (or any employee, officer or agent thereofof such Originator) under or in connection with this Agreement or any of the other Transaction Documents, or any information or report delivered by or on behalf of any such Originator pursuant hereto or thereto which shall have been untrue or incorrect when made or deemed made or delivered;
(b) the failure by any Originator to transfer good and marketable title in and to any Pool Receivable or Related Right to the Buyer, free and clear of any Adverse Claims, and that is freely assignable, pursuant to this Agreement;
(c) the failure by any such Originator to comply with the terms of any Transaction Document or with any Applicable Law with respect to any Pool Receivable or the related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such Applicable Law;
(dc) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(ed) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable or the Related RightsRights at any time;
(e) the transfer by such Originator of any interest in any Pool Receivable or Related Right other than the transfer of any Pool Receivable and Related Security to the Buyer pursuant to this Agreement and the grant of a security interest to the Buyer pursuant to this Agreement;
(f) any suit or claim related to the Pool Receivables (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy or any such dispute, claim, offset or defense relating to or arising from insolvency, lack of creditworthiness or other financial inability to pay of the Obligorbankruptcy) of the an Obligor to the payment of any Pool Receivable in the Receivables Pool (including including, without limitation, a defense based on such Receivable’s Pool Receivable or the related Contract’s Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) ), or any other claim resulting from the sale of the property, products or services giving rise relating to collection activities with respect to such Receivable or the furnishing or failure to furnish such property, products or servicesPool Receivable;
(hg) any failure of any such Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(i) any products liability, environmental or other claim arising out of or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Receivable;
(jh) the misdirection of Collections or the commingling of Collections of Pool Receivables at any time with other funds;
(k) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(li) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or in respect of any Pool Receivable or any Related Rights;
(j) any failure of any Originator to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document;
(k) any offset, setoff, adjustment or other non-cash reduction of any Pool Receivable (including Deemed Collections) not arising from the bankruptcy or insolvency, lack of creditworthiness or other financial default or inability to pay of the related Obligor;
(l) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim) arising out of or in connection with any Pool Receivable or other merchandise, goods or services that are the subject of or related to any Pool Receivable;
(m) any claim brought by any Person other than a Purchase and Sale and Contribution Indemnified Party arising from any activity by any such Originator or any Affiliate thereof of such Originator in servicing, administering or collecting any Pool Receivable;
(n) the failure by any such Originator to pay when due any Taxes, including including, without limitation, sales, excise or personal property Taxestaxes;
(o) [reserved]any dispute, claim, offset or defense (other than discharge in bankruptcy) of an Obligor to the payment of any Pool Receivable (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to such Pool Receivable or the furnishing or failure to furnish any such goods or services or other similar claim or defense not arising from the bankruptcy or insolvency, lack of creditworthiness or other financial default or inability to pay of the related Obligor any undisputed indebtedness;
(p) [reserved]any action taken by the Administrative Agent as attorney-in-fact for such Originator pursuant to this Agreement or any other Transaction Document;
(q) the failure or delay to provide any Tax Obligor with an invoice or other evidence of indebtedness related to a Pool Receivable; or
(r) 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 without limitation Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or ownership of the Receivables generated by such Originator or any Related Rights;
(r) Rights connected with any liability under Section 4.03 of the Receivables Purchase Agreementsuch Receivables; or
(s) the failure of any Receivable sold, transferred, contributed or assigned hereunder as an Eligible Receivable to actually constitute an Eligible Receivable on the date of sale, transfer, contribution or assignment. provided that such indemnity shall not be available to any Purchase and Sale and Contribution Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (xi) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted solely from the gross negligence or willful misconduct of a Purchase and Sale and Contribution Indemnified Party or Party, (yii) constitute recourse with respect to the extent the same includes losses in respect of Receivables that are uncollectable a Pool Receivable by reason of the bankruptcy, bankruptcy or insolvency, lack of creditworthiness or other financial default or inability to pay, pay of the related ObligorObligor or (iii) are arising from a claim by one Purchase and Sale Indemnified Party against another Purchase and Sale Indemnified Party (other than actions against the Administrative Agent in its capacity as Administrative Agent or as a result of the actions or inaction of such Originator). If for any reason (other than the foregoing gross negligence or willful misconduct of any Purchase and Sale Indemnified Party) the indemnification provided above in this Section 9.1 is unavailable to any a Purchase and Sale and Contribution Indemnified Party or is insufficient to hold it such Purchase and Sale Indemnified Party harmless, then each of the Originators, jointly and severally, shall contribute to the amount paid or payable by such Purchase and Sale and Contribution Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of the Originators Originator and their its Affiliates, on the one hand, and such Purchase and Sale and Contribution Indemnified Party, on the other hand, in the matters contemplated by this Agreement as well as the relative fault of the Originators Originator and their its Affiliates and such Purchase and Sale and Contribution Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations; provided that, notwithstanding the foregoing, the Originators shall have no contribution obligation to the extent such loss, claim, damage or liability are in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. The reimbursement, indemnity and contribution obligations of the Originators such Originator under this Section 9.1 shall be in addition to any liability which the Originators such Originator may otherwise have, shall extend upon the same terms and conditions to the Purchase and Sale and Contribution Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of such Originator and the Purchase and Sale and Contribution Indemnified Parties. Any indemnification or contribution under this Section 9.1 shall survive the termination of this Agreement.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights that the Buyer may have hereunder or under Law, the Originators, jointly and severally, hereby agree to indemnify the Buyer, each of its officers, directors, employees, agents, employees and respective assigns, the Administrative Agent and each Purchaser Lender (each of the foregoing Persons being individually called a “Sale and Contribution Indemnified Party”), forthwith on demand, from and against any and all damages, claims, losses, judgments, liabilities, penalties and related costs and expenses (including Attorney Costs) (all of the foregoing being collectively called “Sale and Contribution Indemnified Amounts”) awarded against or incurred by any of them arising out of, relating to or in connection with:
(a) the breach of any representation or warranty made or deemed made by any Originator (or any employee, officer or agent thereof) under or in connection with this Agreement or any of the other Transaction Documents, or any information or report delivered by or on behalf of any Originator pursuant hereto or thereto which shall have been untrue or incorrect when made or deemed made or delivered;
(b) the failure by any Originator to transfer good and marketable title in and to any Pool Receivable or Related Right to the Buyer, free and clear of any Adverse Claims, and that is freely assignable, pursuant to this Agreement;
(c) the failure by any Originator to comply with the terms of any Transaction Document or with any Law with respect to any Pool Receivable or the related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such Law;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy or any such dispute, claim, offset or defense relating to or arising from insolvency, lack of creditworthiness or other financial inability to pay of the Obligorbankruptcy) of the Obligor to the payment of any Receivable in the Receivables Pool (including a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the property, products or services giving rise to such Receivable or the furnishing or failure to furnish such property, products or services;
(h) any failure of any Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(i) any products liability, environmental or other claim arising out of or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Receivable;
(j) the misdirection of Collections or the commingling of Collections of Pool Receivables at any time with other funds;
(k) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(l) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or in respect of any Pool Receivable or any Related Rights;
(m) any claim brought by any Person other than a Sale and Contribution Indemnified Party arising from any activity by any Originator or any Affiliate thereof in servicing, administering or collecting any Pool Receivable;
(n) the failure by any Originator to pay when due any Taxes, including sales, excise or personal property Taxes;
(o) [reserved]Taxes imposed or based on, or measured by, the gross or net income or receipts of the Buyer, and franchise Taxes or branch profits Taxes imposed on the Buyer;
(p) [reserved]withholding Taxes imposed on amounts payable to or for the account of the Buyer;
(q) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Pool Receivable (including a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to such Pool Receivable or the furnishing or failure to furnish any such goods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(r) any product liability claim arising out of or in connection with goods or services that are the subject of any Receivable;
(s) 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 Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or ownership of the Receivables or any Related Rights;
(rt) any liability under Section 4.03 of the Receivables Purchase Financing Agreement; or
(su) the failure of any Receivable sold, transferred, contributed or assigned hereunder as an Eligible Receivable to actually constitute an Eligible Receivable on the date of sale, transfer, contribution or assignment;
(v) the failure of a Settlement Agent to perform its obligations under the applicable Clearing House Rules for any Clearing House;
(w) a Settlement Agent withholds any Receivables, including in the event of the suspension of any servicer from any Clearing House or any Settlement Agent nets or sets off any amount payable by any Borrower Related Party against any Collections a Settlement Agent is required to remit to a Collection Account, or
(x) any judicial seizure, garnishment, or similar action on the Collections in the hands of a Settlement Agent that such Settlement Agent is required to remit to a Collection Account. provided that such indemnity shall not be available to any Sale and Contribution Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of a Sale and Contribution Indemnified Party or (y) to the extent the same includes losses in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in this Article IX, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be deemed to be not so qualified. If for any reason the foregoing indemnification is unavailable to any Sale and Contribution Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Sale and Contribution Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of the Originators and their Affiliates, on the one hand, and such Sale and Contribution Indemnified Party, on the other hand, in the matters contemplated by this Agreement as well as the relative fault of the Originators and their thier Affiliates and such Sale and Contribution Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations; provided that, notwithstanding the foregoing, the Originators shall have no contribution obligation to the extent such loss, claim, damage or liability are in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. The reimbursement, indemnity and contribution obligations of the Originators under this Section 9.1 shall be in addition to any liability which the Originators may otherwise have, shall extend upon the same terms and conditions to the Sale and Contribution Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of such Originator and the Sale and Contribution Indemnified Parties. Any indemnification or contribution under this Section 9.1 shall survive the termination of this Agreement.
Appears in 1 contract
Indemnities by the Originators. Without limiting any other rights that which the Buyer may have hereunder or under Lawapplicable law, each of the Originators, jointly on a joint and severallyseveral basis, hereby agree agrees to indemnify the BuyerBuyer and its assigns, and each of its their respective directors, officers, directors, employees, agents, employees agents and respective assigns, the Administrative Agent and each Purchaser attorneys (each all of the foregoing Persons being individually called a “Sale and Contribution collectively referred to as "Indemnified Party”), forthwith on demand, Parties") from and against any and all damages, losses, claims, losses, judgments, liabilities, penalties liabilities and related costs and expenses (expenses, including Attorney Costs) reasonable attorneys' fees and disbursements (all of the foregoing being collectively called “Sale and Contribution referred to as "Indemnified Amounts”") awarded against or incurred by any of them arising out of, relating to of or in connection withresulting from:
(ai) the breach sale of any Receivable under this Agreement which is not at the date of Purchase an Eligible Receivable;
(ii) reliance on any representation or warranty made or deemed made by any Originator, the Servicer (if OutSource International, an Originator (or one of its Affiliates) or any employee, officer or agent thereof) of their respective officers under or in connection with this Agreement or any of the other Transaction DocumentsAgreement, or any information or report delivered by or on behalf of any Originator pursuant hereto or thereto which shall have been untrue false or incorrect in any material respect when made or deemed made or delivered;
(biii) the failure by any Originator or the Servicer (if OutSource International, an Originator or one of its Affiliates) to comply with any term, provision or covenant contained in this Agreement or any of the other Originator Documents, or with any applicable law, rule or regulation with respect to any Receivable, the related Contract or the Related Security, or the nonconformity of any Receivable, the related Contract or the Related Security with any such applicable law, rule or regulation;
(A) the failure to vest and maintain vested in the Buyer or to transfer to the Buyer, legal and equitable title to and ownership of, the Receivables and the other Transferred Assets which are, or are purported to be, sold by the Originators hereunder; or (B) the failure to grant to the Buyer a valid and perfected ownership interest under Article 9 of the UCC in and to the Receivables which are, or are purported to be, Transferred Assets, together with all Collections and Related Security; in each case free and clear of any Adverse Claim whether existing at the time of the Purchase of any such Receivable or at any time thereafter (other than Adverse Claims created in favor of the Buyer hereunder or by the Buyer under the OutSource Funding Credit Agreement);
(v) the failure by any Originator to transfer good and marketable title in and make any payment required on its part to any Pool Receivable or Related Right to the Buyer, free and clear of any Adverse Claims, and that is freely assignable, pursuant to this Agreementbe made hereunder;
(c) the failure by any Originator to comply with the terms of any Transaction Document or with any Law with respect to any Pool Receivable or the related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such Law;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(evi) the failure to have filedfile, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Laws applicable laws with respect to any Pool Receivable Receivables and other Transferred Assets which are, or are purported to be, sold by the Related RightsOriginators hereunder, whether at the time of any Purchase or at any subsequent time;
(f) any suit or claim related to the Pool Receivables (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable);
(gvii) any dispute, claim, offset or defense (other than the discharge in bankruptcy or any such dispute, claim, offset or defense relating to or arising from insolvency, lack of creditworthiness or other financial inability to pay of the Obligor) of the Obligor to the payment of any Receivable in the Receivables Pool which is, or is purported to be sold by an Originator hereunder (including including, without limitation, a defense based on such Receivable’s Receivable or the related Contract’s Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) ), or any other claim resulting from the sale of the property, products merchandise or services giving rise related to such Receivable or the furnishing or failure to furnish such property, products merchandise or services;
(hviii) any failure of any Originator or the Servicer (if OutSource International, an Originator or one of its Affiliates) to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related this Agreement or any failure by any Originator or any Affiliate thereof to Pool Receivables or to timely and fully comply with perform its respective duties under the Credit and Collection Policy in regard to each Pool ReceivableContracts;
(iix) any products liability, environmental 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 any Receivable or other merchandise, goods or services and/or merchandise which are the subject of any Receivable or related to any ReceivableContract;
(jx) the misdirection of Collections failure to pay when due any taxes, including without limitation, sales, excise or personal property taxes payable in connection with the Transferred Assets;
(xi) the commingling of Collections of Pool Receivables Transferred Assets at any time with other funds;
(k) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(lxii) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or the use of proceeds of Purchases or the ownership by the Buyer of Transferred Assets except any other Transaction Document such investigation, litigation or in respect of any Pool Receivable or any Related Rights;
(m) any claim brought by any Person other than a Sale and Contribution Indemnified Party proceeding arising from any activity by any Originator or any Affiliate thereof in servicing, administering or collecting any Pool Receivable;
(n) the failure by any Originator to pay when due any Taxes, including sales, excise or personal property Taxes;
(o) [reserved];
(p) [reserved];
(q) 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 Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or ownership of the Receivables or any Related Rights;
(r) any liability under Section 4.03 of the Receivables Purchase Agreement; or
(s) the failure of any Receivable sold, transferred, contributed or assigned hereunder as an Eligible Receivable to actually constitute an Eligible Receivable on the date of sale, transfer, contribution or assignment. provided that such indemnity shall not be available to any Sale and Contribution Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of the Buyer;
(xiii) any attempt by any Person to void or otherwise avoid any transfer of a Sale and Contribution Indemnified Party or (y) Transferred Asset from the Originators to the extent the same includes losses in respect of Receivables that are uncollectable by reason Buyer under any statutory provision or common law or equitable action, including, without limitation, any provision of the bankruptcyBankruptcy Code; or
(xiv) the failure of any Originator or any of their respective agents or representatives (including, insolvencywithout limitation, lack of creditworthiness or other financial inability to payagents, of the related Obligor. If for any reason the foregoing indemnification is unavailable to any Sale representatives and Contribution Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Sale and Contribution Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests employees of the Originators and their Affiliatesacting pursuant to authority granted under Section 6.01) to remit to the Servicer, on Collections of Transferred Assets remitted to such Originator or any such agent or representative. Any amounts subject to the one hand, and such Sale and Contribution Indemnified Party, on indemnification provisions of this Section 8.01 shall be paid by the applicable Originator to the Buyer within five (5) Business Days following the Buyer's written demand therefor. Notwithstanding any other hand, in the matters contemplated by provision of this Agreement as well as to the relative fault of the Originators and their Affiliates and such Sale and Contribution Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations; provided that, notwithstanding the foregoingcontrary, the Originators shall have no contribution obligation to not indemnify the extent such loss, claim, damage Indemnified Parties for or liability are in with respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. The reimbursement, indemnity and contribution obligations of the Originators under this Section 9.1 shall be in addition to any liability which the Originators may otherwise have, shall extend upon the same terms and conditions Indemnified Amounts that would constitute recourse for uncollectible Transferred Assets due to the Sale and Contribution Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of such Originator and the Sale and Contribution Indemnified Parties. Any indemnification or contribution under this Section 9.1 shall survive the termination of this Agreementcredit reasons.
Appears in 1 contract
Sources: Receivables Purchase and Sale Agreement (Outsource International Inc)
Indemnities by the Originators. Without limiting any other rights that the Buyer may have hereunder or under Applicable Law, the Originatorseach Originator and Applied Industrial, jointly and severally, hereby agree agrees to indemnify the Buyer, each of its officers, directors, employees, agents, employees and respective assigns, the Administrative Agent Agent, each Lender and each Purchaser Group Agent (each of the foregoing Persons being individually called a “Purchase and Sale and Contribution Indemnified Party”), forthwith on demand, from and against any and all claims, expenses, damages, claimslosses and liabilities suffered or sustained (limited, lossesin the case of legal fees, judgments, liabilities, penalties and related costs and expenses (including expenses, to reasonable Attorney Costs) (all of the foregoing being collectively called “Purchase and Sale and Contribution Indemnified Amounts”) awarded against or incurred by any of them arising out of, relating to or in connection with:
with this Agreement or any other Transaction Document or the use of the proceeds from the Receivables generated by any Originator and Related Security or the security interest in respect thereof and without limiting or being limited by the foregoing, any of the following: (a) the breach of any representation representation, warranty or warranty statement made or deemed made by any such Originator (or any employee, officer or agent thereofof such Originator) under or in connection with this Agreement or any of the other Transaction Documents, or any information or report delivered by or on behalf of any such Originator pursuant hereto or thereto which shall have been untrue or incorrect when made or deemed made or delivered;
; (b) the failure by any Originator to transfer good and marketable title in and to any Pool Receivable or Related Right to the Buyer, free and clear of any Adverse Claims, and that is freely assignable, pursuant to this Agreement;
(c) the failure by any such Originator to comply with the terms of any Transaction Document or with any Applicable Law with respect to any Pool Receivable or the related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such Applicable Law;
; (dc) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy or any such dispute, claim, offset or defense relating to or arising from insolvency, lack of creditworthiness or other financial inability to pay of the Obligor) of the Obligor to the payment of any Receivable in the Receivables Pool (including a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the property, products or services giving rise to such Receivable or the furnishing or failure to furnish such property, products or services;
(h) any failure of any Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(i) any products liability, environmental or other claim arising out of or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Receivable;
(j) the misdirection of Collections or the commingling of Collections of Pool Receivables at any time with other funds;
(k) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(l) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or in respect of any Pool Receivable or any Related Rights;
(m) any claim brought by any Person other than a Sale and Contribution Indemnified Party arising from any activity by any Originator or any Affiliate thereof in servicing, administering or collecting any Pool Receivable;
(n) the failure by any Originator to pay when due any Taxes, including sales, excise or personal property Taxes;
(o) [reserved];
(p) [reserved];
(q) 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 Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or ownership of the Receivables or any Related Rights;
(r) any liability under Section 4.03 of the Receivables Purchase Agreement; or
(s) the failure of any Receivable sold, transferred, contributed or assigned hereunder as an Eligible Receivable to actually constitute an Eligible Receivable on the date of sale, transfer, contribution or assignment. provided that such indemnity shall not be available to any Sale and Contribution Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of a Sale and Contribution Indemnified Party or (y) to the extent the same includes losses in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. If for any reason the foregoing indemnification is unavailable to any Sale and Contribution Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Sale and Contribution Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of the Originators and their Affiliates, on the one hand, and such Sale and Contribution Indemnified Party, on the other hand, in the matters contemplated by this Agreement as well as the relative fault of the Originators and their Affiliates and such Sale and Contribution Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations; provided that, notwithstanding the foregoing, the Originators shall have no contribution obligation to the extent such loss, claim, damage or liability are in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. The reimbursement, indemnity and contribution obligations of the Originators under this Section 9.1 shall be in addition to any liability which the Originators may otherwise have, shall extend upon the same terms and conditions to the Sale and Contribution Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of such Originator and the Sale and Contribution Indemnified Parties. Any indemnification or contribution under this Section 9.1 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Applied Industrial Technologies Inc)
Indemnities by the Originators. Without limiting any other rights that the Buyer may have hereunder or under Applicable Law, the Originatorseach Originator and Evoqua, jointly and severally, hereby agree agrees to indemnify the Buyer, each of its officers, directors, employees, agents, employees and respective assigns, the Administrative Agent and each Purchaser Lender (each of the foregoing Persons being individually called a “Sale and Contribution Indemnified Party”), forthwith on demand, from and against any and all damages, claims, losses, judgments, liabilities, penalties and related costs and expenses (including Attorney Costs) (all of the foregoing being collectively called “Sale and Contribution Indemnified Amounts”) awarded against or incurred by any of them arising out of, relating to or in connection with:
(a) the breach of any representation or warranty made or deemed made by any such Originator (or any employee, officer or agent thereofof such Originator) under or in connection with this Agreement or any of the other Transaction Documents, or any information or report delivered by or on behalf of any such Originator pursuant hereto or thereto which shall have been untrue or incorrect when made or deemed made or delivered;
(b) the failure by any such Originator to transfer good and marketable title in and to any Pool Receivable or Related Right to the Buyer, free and clear of any Adverse Claims, and that is freely assignable, pursuant to this Agreement;
(c) the failure by any such Originator to comply with the terms of any Transaction Document or with any Applicable Law with respect to any Pool Receivable or the related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such Applicable Law;
(d) the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Security) originated by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(e) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool ReceivableReceivable originated by such Originator);
(g) any dispute, claim, offset or defense (other than discharge in bankruptcy or any such dispute, claim, offset or defense relating to or arising from insolvency, lack of creditworthiness or other financial inability to pay of the Obligorbankruptcy) of the Obligor to the payment of any Receivable in the Receivables Pool (including a defense based on such Receivable’s or the related Contract’s not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or any other claim resulting from the sale of the property, products or services giving rise to such Receivable or the furnishing or failure to furnish such property, products or services;
(h) any failure of any such Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables or to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(i) any products liability, environmental or other claim arising out of or in connection with any Receivable or other merchandise, goods or services which are the subject of or related to any Receivable;
(j) the misdirection of Collections or the commingling by such Originator of Collections of Pool Receivables at any time with other funds;
(j) the failure to provide, or delay in providing, any Obligor with an invoice or other evidence of indebtedness;
(k) any investigation, litigation or proceeding (actual or threatened) related to such Originator’s performance under this Agreement or any other Transaction Document or in respect of any Pool Receivable originated by such Originator or any Related Rights with respect thereto;
(l) any claim brought by any Person other than a Sale and Contribution Indemnified Party arising from any activity by such Originator or any Affiliate of such Originator (other than the Servicer) in servicing, administering or collecting any Pool Receivable;
(m) the failure by such Originator to pay when due any Taxes, including, without limitation, sales, excise or personal property Taxes;
(n) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Pool Receivable (including, without limitation, a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of goods or the rendering of services related to such Pool Receivable or the furnishing or failure to furnish any such goods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(o) the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(l) any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or in respect of any Pool Receivable or any Related Rights;
(m) any claim brought by any Person other than a Sale and Contribution Indemnified Party arising from any activity by any Originator or any Affiliate thereof in servicing, administering or collecting any Pool Receivable;
(n) the failure by any Originator to pay when due any Taxes, including sales, excise or personal property Taxes;
(o) [reserved];
(p) [reserved];
(q) 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 without limitation Attorney Costs in defending against the same, which are required to be paid by reason of the purchase or ownership of the Receivables generated by such Originator or any Related RightsRights connected with any such Receivables (including as a result of any breach of the representations of Section 6.01(v) of the Receivables Financing Agreement or the covenants of Section 7.01(y) of the Receivables Financing Agreement);
(rq) any liability under Section 4.03 of the Receivables Purchase Financing Agreement; or
(sr) the failure of any Receivable sold, transferred, contributed or assigned hereunder by such Originator as an Eligible Receivable to actually constitute an Eligible Receivable on the date of sale, transfer, contribution or assignmentassignment of such Receivable but which is not an Eligible Receivable at such time. provided that such indemnity shall not be available to any Sale and Contribution Indemnified Party to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction in a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of a Sale and Contribution Indemnified Party or (y) constitute recourse with respect to the extent the same includes losses in respect of Receivables that are uncollectable a Pool Receivable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. Notwithstanding anything to the contrary in this Agreement, solely for purposes of such Originator’s indemnification obligations in this Article IX, any representation, warranty or covenant qualified by the occurrence or non-occurrence of a material adverse effect or similar concepts of materiality shall be deemed to be not so qualified. If for any reason the foregoing indemnification is unavailable to any Sale and Contribution Indemnified Party or insufficient to hold it harmless, then the Originators, jointly and severally, shall contribute to the amount paid or payable by such Sale and Contribution Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of the Originators such Originator and their its Affiliates, on the one hand, and such Sale and Contribution Indemnified Party, on the other hand, in the matters contemplated by this Agreement as well as the relative fault of the Originators such Originator and their its Affiliates and such Sale and Contribution Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations; provided that, notwithstanding the foregoing, the Originators shall have no contribution obligation to the extent such loss, claim, damage or liability are in respect of Receivables that are uncollectable by reason of the bankruptcy, insolvency, lack of creditworthiness or other financial inability to pay, of the related Obligor. The reimbursement, indemnity and contribution obligations of the Originators such Originator under this Section 9.1 shall be in addition to any liability which the Originators such Originator may otherwise have, shall extend upon the same terms and conditions to the Sale and Contribution Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of such Originator and the Sale and Contribution Indemnified Parties. Any indemnification or contribution under this Section 9.1 shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Sale and Contribution Agreement (Evoqua Water Technologies Corp.)