Indemnities by the Purchaser. Without limiting any other rights which the Indemnified Parties may have hereunder, under any other Transaction Document or under applicable Law, the Purchaser hereby agrees to indemnify each Facility Lender, the Agent, each Conduit and Conduit CP Funding Provider providing funding (directly or indirectly) to a Facility Lender, each Conduit Support Provider, each Administrator and each of their respective officers, directors, employees, counsel and other agents (collectively, the “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities, costs and expenses, including attorneys’ fees and disbursements arising out of or as a result of this Agreement, the other Transaction Documents or any of the transactions contemplated by this Agreement or any of the other Transaction Documents, including any damages, losses, claims, liabilities, costs and expenses awarded against or incurred by any of them in any action or proceeding between the Purchaser, any MAI Party (including any Originator or any Affiliate of any Originator acting as Servicer or Sub-Servicer) or any Affiliate of the foregoing and any of the Indemnified Parties or between any of the Indemnified Parties and any third party (all of the foregoing being collectively referred to as “Indemnified Amounts”), excluding, however (i) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, as finally determined by a court of competent jurisdiction, or (ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. Without limiting the generality of the foregoing (and subject to sub-clauses (i) and (ii)), the Purchaser shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from: (a) any representation or warranty made by the Purchaser, the Servicer, MAI or any other MAI Party or any officers of the Purchaser, the Servicer, MAI or any other MAI Party under or in connection with this Agreement, any Purchase and Sale Agreement, any of the other Transaction Documents, any Servicer Report or any other information or report delivered by the Purchaser, the Servicer, MAI or any other MAI Party pursuant hereto, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any respect when made or deemed made; (b) the failure by the Purchaser, the Servicer, MAI or any other MAI Party to comply with any applicable Law with respect to any Receivable or any Contract related thereto including any disclosure of or other action or omission relating to information relating to any Obligor by the Servicer, MAI or any MAI Party or the nonconformity of any Receivable or any Contract related thereto with any such applicable Law; (i) the failure for any reason (A) to vest and maintain (or cause to be vested and maintained) in the Purchaser complete and outright legal and beneficial ownership of, and good and marketable title to, each Receivable and related other Affected Assets which is valid and enforceable against Obligors and other third parties and is free and clear of any Adverse Claim (other than any Adverse Claim arising hereunder or under the other Transaction Documents) and the interest of any other creditor of the Purchaser and the Originators, or (B) to vest and maintain in the Agent, on behalf of the Secured Parties, a valid and enforceable perfected security interest ranking ahead of any other security interest and the interest of any other creditor of the Purchaser and the Originators in each Receivable and related other Affected Assets, free and clear of any Adverse Claim (other than any Adverse Claim arising hereunder or under any other Transaction Document), or (ii) the creation of any Adverse Claim in favor of any Person with respect to the Receivables or related other Affected Assets; (d) the occurrence of any Event of Default; (e) any dispute, claim, offset or defense (other than discharge in bankruptcy) of any Obligor to the payment of any Receivable (including a defense based on such Receivable or any Contract related thereto not being the legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services, or from any breach or alleged breach of any provision of the Receivables or any Contracts related thereto restricting assignment of any Receivables; (f) any failure of the Servicer to perform its duties or obligations in accordance with the Servicing Agreement; (g) any product liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable or related other Affected Asset or any Contract; (h) any lawsuit, order, consent decree, judgment, claim or other action of whatever sort relating to, or otherwise in connection with, any environmental, health, safety or hazardous material law, rule, regulation, ordinance, code, policy or rule of common law now or hereinafter in effect; (i) the failure by the Purchaser or any MAI Party to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Receivables or any Contracts related thereto; (j) the Currency Net Advances in any Currency exceeding the Currency Borrowing Base for such Currency at any time; (k) the failure of the Purchaser, the Servicer, MAI or any other MAI Party to pay when due any Taxes (other than Excluded Taxes) payable in connection with the sale of any Receivable or related other Affected Asset or any Contract or in connection with any Transaction Document or the transactions contemplated thereby; (l) any repayment by any Indemnified Party of any amount previously distributed in reduction of Advances which such Indemnified Party believes in good faith is required to be made; (m) at any time when MAI or any Affiliate of MAI is the Servicer or a Sub- Servicer, the commingling by the Purchaser or any MAI Party of Collections of Receivables with any other funds; (n) any investigation, litigation or proceeding related to this Agreement or any of the other Transaction Documents except to the extent that such investigation, litigation or proceeding relates solely to such Indemnified Parties’ participation in securitization transactions; (o) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes pursuant to the instructions of the Servicer, the Purchaser or the Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise; (p) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state or country in which an Obligor may be located as a result of the failure of the Purchaser, any Originator or any MAI Party to qualify to do business or file any notice of business activity report or any similar report; (q) except for recourse for uncollectible Receivables (other than as otherwise specifically provided in the Transaction Documents), any attempt by any Person to void, rescind or set-aside any transfer by any Originator to the Purchaser of any Receivable or related other Affected Asset under statutory provisions or common law or equitable action, including any provision of any Insolvency Law; or (r) any action taken by the Purchaser, the Servicer or any Sub-Servicer in the enforcement or collection of any Receivable. In respect of any Indemnified Amounts payable to any Indemnified Party which is not a party to this Agreement in accordance with the indemnity set out in this Section 7.1, the Purchaser (A) agrees to pay such Indemnified Party directly at the direction of the Agent and (B) acknowledges and agrees that the Agent shall have the right to enforce the indemnity set out in this Section 7.1 on behalf of such Indemnified Party in respect of any Indemnified Amounts payable to such Indemnified Party, notwithstanding that no Indemnified Amounts are payable to the Agent itself. In the event that the Agent receives or recovers from the Purchaser pursuant to the indemnity set out in this Section 7.1 any Indemnified Amounts payable to or for the benefit of any Indemnified Party, the Agent agrees that it will immediately (and in any event no later than the Business Day following receipt thereof) pay all such Indemnified Amounts to such Indemnified Party.
Appears in 1 contract
Sources: Receivables Funding Agreement (Adama Agricultural Solutions Ltd.)
Indemnities by the Purchaser. (a) Without limiting any other rights which the Indemnified Parties may have hereunderunder this Agreement, under any other Transaction Document or under applicable Law, the Purchaser hereby agrees to indemnify each Facility the Lender, the Funding Agent, each Conduit and Conduit CP Funding Provider providing funding (directly or indirectly) to a Facility Lenderthe Arranger, each Conduit Support ProviderAffiliate of The Bank of Tokyo-Mitsubishi, each Administrator Ltd. supporting the financing activities of the Lender (including by providing any credit or liquidity support to the Lender) and each of their respective officers, directors, employees, counsel and other agents (collectively, the “Indemnified Parties”) from and against any and all damages, losses, claims, liabilities, costs and expenses, including reasonable attorneys’ fees (which such attorneys may be employees of the Indemnified Parties, as applicable) and disbursements arising out of or as a result of this Agreement, the other Transaction Documents or any (all of the transactions contemplated by this Agreement or any of the other Transaction Documents, including any damages, losses, claims, liabilities, costs and expenses foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them in any action or proceeding between the Purchaser, any MAI Seller Party (including any Originator or any Affiliate of any Originator Seller acting as Servicer or Sub-Servicer) or any Affiliate of the foregoing and any of the Indemnified Parties or between any of the Indemnified Parties and any third party (all arising out of or as a result of this Agreement, the other Transaction Documents, the provision of the foregoing being collectively referred to as “Indemnified Amounts”)Commitments or the making of Advances or any of the transactions contemplated by this Agreement or by any of the Transaction Documents, excluding, however however:
(i) Indemnified Amounts to the extent resulting from gross negligence or willful wilful misconduct on the part of such Indemnified Party, as finally determined by a court of competent jurisdiction, or ; or
(ii) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables. .
(b) Without limiting the generality of the foregoing (and subject to sub-clauses (iClauses 7.1(a)(i) and (ii7,1(a)(ii)), the Purchaser shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from:
(ai) any representation or warranty made by the Purchaser, the Servicer, MAI the Parent or any other MAI Seller Party or any officers of the Purchaser, the Servicer, MAI the Parent or any other MAI Seller Party under or in connection with this Agreement, any Purchase and Sale the Receivables Transfer Agreement, any of the other Transaction Documents, any Servicer Report or any other information or report delivered by the Purchaser, the Servicer, MAI the Parent or any other MAI Seller Party pursuant heretoto this Agreement, or pursuant to any of the other Transaction Documents which shall have been incomplete, false or incorrect in any material respect when made or deemed made;
(bii) the failure by the Purchaser, the Servicer, MAI the Parent or any other MAI Seller Party to comply with any applicable Law with respect to any Receivable or any related Contract related thereto including any disclosure of or other action or omission relating to information relating to any Obligor by the any Servicer, MAI the Parent or any MAI Seller Party or the nonconformity of any Receivable or any related Contract related thereto with any such applicable Law;
(iiii) the failure for any reason reason:
(A) to vest and maintain (or cause to be vested and maintained) in the Purchaser complete a valid, enforceable and outright legal and beneficial perfected ownership of, and good and marketable title to, interest in each Receivable and related all of the other Affected Assets which is valid and enforceable against Obligors and other third parties and is free and clear of any Adverse Claim (other than any Permitted Exceptions and Adverse Claim Claims arising hereunder under this Agreement or under the other Transaction Documentsdocuments) and the interest of any other creditor of the Purchaser and or the Originators, or Sellers; or
(B) to vest and maintain in the Funding Agent, on behalf of the Secured Parties, a valid valid, enforceable and enforceable perfected first priority security interest ranking ahead of any other security interest and the interest of any other creditor of the Purchaser and or the Originators Sellers, in each Receivable and related all of the other Affected Assets, free and clear of any Adverse Claim (other than any Permitted Exceptions and Adverse Claim Claims arising hereunder under this Agreement or under any other Transaction Document), or ; and
(iiiv) the creation of any Adverse Claim in favor favour of any Person with respect to the Receivables or related any of the other Affected Assets;
(dv) the occurrence of any Event of DefaultDefault which is continuing relating to the Purchaser;
(evi) any dispute, claim, offset set-off or defense defence (other than discharge in bankruptcyinsolvency) of any Obligor to the payment of any Receivable of its Receivables (including a defense defence based on such the assertion that the Receivable or any related Contract related thereto is not being the legal, valid and binding obligation of such that Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of merchandise or services related to such that Receivable or the furnishing or failure to furnish such merchandise or those services, or from any breach or alleged breach of any provision of the Receivables or any related Contracts related thereto restricting assignment of any Receivables;
(fvii) any failure of the Servicer to perform its duties or obligations in accordance with the Servicing Agreement;
(gviii) any product liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable or related other Affected Asset or any ContractReceivable;
(hix) any lawsuit, order, consent decree, judgment, claim or other action of whatever sort relating to, or otherwise in connection with, any environmental, health, safety or hazardous material Hazardous Material law, rule, regulation, ordinance, code, policy or rule of common law now or hereinafter in the future in effect;
(ix) the failure by the Purchaser or any MAI Seller Party to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any of its respective duties or obligations under the Receivables or any Contracts related theretoContracts;
(jxi) the Currency Net Advances in any Currency exceeding the Currency Total Borrowing Base for such Currency at any timetime and the excess amount is not reduced to zero within five Business Days of the Purchaser obtaining actual knowledge of that breach;
(kxii) the failure of the Purchaser, the Servicer, MAI the Parent or any other MAI Seller Party to pay when due any Taxes (other than Excluded Taxes) payable in connection with the sale Transfer of any Receivable or related other Affected Asset or of the Receivables, save to the extent that any Contract failure to do so would not, individually or in connection with any Transaction Document or the transactions contemplated therebyaggregate, have a Material Adverse Effect;
(lxiii) any repayment by any Indemnified Party of any amount previously distributed in reduction of Net Advances which such that Indemnified Party believes in good faith is required to be made;
(mxiv) at any time after the Blocked Account Implementation Date when MAI CML or any Affiliate of MAI CML is the Servicer or a Sub- Sub-Servicer, the commingling by the Purchaser or any MAI Seller Party of Collections of Receivables with any other funds;
(nxv) any investigation, litigation or proceeding related to this Agreement or any of the other Transaction Documents except to the extent that such investigation, litigation or proceeding relates solely to such Indemnified Parties’ participation in securitization transactionsDocuments;
(o) failure of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or any related lock-boxes pursuant to the instructions of the Servicer, the Purchaser or the Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Blocked Account Agreement) whether by reason of the exercise of set-off rights or otherwise;
(pxvi) any inability to obtain any judgment in or utilize utilise the court or other adjudication system of, any state or country in which an Obligor may be located as a result of the failure of the Purchaser, any Originator Purchaser or any MAI Seller Party to qualify to do business or file any notice of business activity report or any similar report;
(qxvii) except for recourse for uncollectible Receivables (other than as otherwise specifically provided in the Transaction Documents)) for uncollectible Receivables, any attempt by any Person to void, rescind or set-set aside any transfer Transfer by any Originator Seller to the Purchaser of any Receivable or other related other Affected Asset under statutory provisions or common law or equitable action, including any provision of any Insolvency Law; or
(rxviii) any action taken by the Purchaser, the Servicer or any Sub-Servicer in the enforcement or collection of any Receivable. In respect of any Indemnified Amounts payable to any Indemnified Party which is not a party to this Agreement in accordance with the indemnity set out in this Section 7.1, the Purchaser (A) agrees to pay such Indemnified Party directly at the direction of the Agent and (B) acknowledges and agrees that the Agent shall have the right to enforce the indemnity set out in this Section 7.1 on behalf of such Indemnified Party in respect of any Indemnified Amounts payable to such Indemnified Party, notwithstanding that no Indemnified Amounts are payable to the Agent itself. In the event that the Agent receives or recovers from the Purchaser pursuant to the indemnity set out in this Section 7.1 any Indemnified Amounts payable to or for the benefit of any Indemnified Party, the Agent agrees that it will immediately (and in any event no later than the Business Day following receipt thereof) pay all such Indemnified Amounts to such Indemnified Party.
Appears in 1 contract