Servicer Indemnification. The Servicer shall indemnify and hold harmless each of the Companies, the Class A Note Insurer, the Backup Servicer, the Indenture Trustee and the Holders and their respective Affiliates and the directors, officers, employees and agents of each thereof (the "Indemnified Parties"), from and against: (a) any breach of or any inaccuracy in any representation or warranty made by the Servicer in this Agreement or in any certificate delivered pursuant thereto; (b) any breach of or failure by the Servicer to perform any covenant or obligation of the Servicer set out or contemplated in this Agreement (except for any such breach or failure which has been fully remedied in accordance with Section 4.03); (c) the negligence, recklessness or willful misconduct of the Servicer; (d) any dispute, counterclaim, defense, loss, liability, expense, damage or injury suffered or sustained by reason of any acts, omissions or alleged acts or omissions arising out of any act or failure to act on the part of the Servicer with respect to its obligations under this Agreement, including but not limited to any judgment, award, settlement, reasonable attorneys' fees and other reasonable costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim; (e) any failure by the Servicer to comply with any applicable Law with respect to any Railcar Asset; (f) the commingling by the Servicer of Collections at any time with any other funds; or (g) any inability to obtain any judgment in or utilize the court or other adjudication system of, any jurisdiction in which a Lessee may be located as a result of the failure of the Servicer to qualify to do business or file any notice of business activity report or any similar report; provided, however, that (i) the Servicer shall not indemnify the Indemnified Parties if such acts, omissions or alleged acts or omissions constitute fraud, negligence, or willful misconduct by such Indemnified Party, (ii) the Servicer shall not indemnify the Indemnified Parties for any liability, cost or expense of the Collateral with respect to any federal, state or local income or franchise taxes (or any interest or penalties with respect thereto) required to be paid by the Holders in connection herewith to any taxing authority, (iii) the Servicer shall not indemnify the Indemnified Parties in respect of any Tax Payment Amount owing by any Company, except to the extent that (A) the Servicer shall have failed to include in the Monthly Servicer Report complete and correct information in respect of such Tax Payment Amount and the Tax Payment Recipient thereof and (B) amounts shall have been paid to or at the direction of the Companies under Section 12.02(d) or Section 6.08 of the Indenture, as applicable, which would not have been so paid but for such failure, and (iv) in the event that a Successor Servicer (including the Backup Servicer) shall succeed to the duties of the Servicer, the provisions of this Section 5.03 shall not apply to such Successor Servicer unless expressly agreed to thereby. The provisions of this Section 5.03 shall survive any expiration or termination of this Agreement. Any indemnification owed to the Indemnified Parties under this Section 5.03 shall be due and payable within 30 days of the applicable Indemnified Party's demand therefor.
Appears in 1 contract
Sources: Servicing Agreement (Andersons Inc)
Servicer Indemnification. The Servicer shall indemnify and hold harmless each of the Companies, the Class A Note Insurer, the Backup Servicer, the Indenture Trustee and the Holders and their respective Affiliates and the directors, officers, employees and agents of each thereof (the "Indemnified Parties"), Party from and against:
(a) any breach of or any inaccuracy in any representation or warranty made by the Servicer in this Agreement or in any certificate delivered pursuant thereto;
(b) any breach of or failure by the Servicer to perform any covenant or obligation of the Servicer set out or contemplated in this Agreement (except for any such breach or failure which has been fully remedied in accordance with Section 4.03);
(c) the negligence, recklessness or willful misconduct of the Servicer;
(d) any dispute, counterclaim, defense, loss, liability, expense, damage or injury against Indemnified Amounts suffered or sustained by reason of any acts, omissions or alleged acts or omissions arising out of any act or failure to act on the part of breach by the Servicer with respect to of its representations and warranties or obligations under this Agreement, including but not limited to any judgment, award, settlement, reasonable attorneys' fees and other reasonable costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim;
(e) any failure by the Servicer to comply with any applicable Law with respect to any Railcar Asset;
(f) the commingling by the Servicer of Collections at any time with any other funds; or
(g) any inability to obtain any judgment in or utilize the court or other adjudication system of, any jurisdiction in which a Lessee may be located as a result of the failure of the Servicer to qualify to do business or file any notice of business activity report or any similar report; providedexcluding, however, that Indemnified Amounts to the extent resulting from (i) the Servicer shall not indemnify the Indemnified Parties if such actswillful misconduct, omissions or alleged acts or omissions constitute fraudbad faith, gross negligence, the reckless disregard by such Indemnified Party of any of his, her or willful misconduct by its obligations and duties or breach of fiduciary duty on the part of such Indemnified Party, (ii) the Servicer shall not indemnify the Indemnified Parties recourse for uncollectible Receivables or (iii) any liability, cost or expense of the Collateral with respect to any federal, state or local income or franchise taxes (or any interest or penalties with respect thereto) required to be paid incurred by such Indemnified Party arising out of or as a result of this Agreement or the Holders interest conveyed hereunder in connection herewith to any taxing authority, (iii) the Servicer shall not indemnify the Indemnified Parties Trust Assets or in respect of any Tax Payment Amount owing by Receivable or any CompanyContract or the Receivables Purchase Agreement. Indemnification pursuant to this Section shall not be payable from the Trust Assets. The agreement contained in this Section 8.04 shall survive the collection of all Receivables, except the termination of this Agreement and the payment of all amounts otherwise due hereunder. In case any proceeding shall be instituted involving any person in respect of which indemnity may be sought pursuant to this Section the Indemnified Party shall promptly notify the Servicer in writing and the Servicer upon request of the Indemnified Party, shall retain counsel reasonably satisfactory to the extent that Indemnified Party to represent the Indemnified Party and any others may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the reasonable fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (Ai) the Servicer and the Indemnified Party shall have failed mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the Servicer and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the Servicer shall not, in connection with any proceeding or related proceedings in the Monthly Servicer Report complete same jurisdiction, be liable for the reasonable fees and correct information in respect expenses of more than one separate firm for all such Tax Payment Amount and the Tax Payment Recipient thereof and (B) amounts shall have been paid to or at the direction of the Companies under Section 12.02(d) or Section 6.08 of the Indenture, as applicable, which would not have been so paid but for such failure, and (iv) in the event that a Successor Servicer (including the Backup Servicer) shall succeed to the duties of the Servicer, the provisions of this Section 5.03 shall not apply to such Successor Servicer unless expressly agreed to thereby. The provisions of this Section 5.03 shall survive any expiration or termination of this Agreement. Any indemnification owed to the Indemnified Parties under this Section 5.03 shall be due and payable within 30 days of the applicable Indemnified Party's demand thereforParties.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Wheeling Pittsburgh Corp /De/)
Servicer Indemnification. (1) The Servicer shall indemnify the Sub-Servicer and the Certificate Insurer and hold harmless each of them against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and other costs and expenses resulting from any claim, demand, defense or assertion based on or grounded upon, or resulting from, a breach of any of the CompaniesServicer's representations and warranties and covenants contained in this Agreement, in any way relating to the Class A Note failure of the Servicer to perform its duties in compliance with the terms of this Agreement; provided, however, that the Servicer shall not be required to indemnify the Sub-Servicer or the Certificate Insurer against any liability due to the willful malfeasance, bad faith, or negligence of the Sub-Servicer or the Certificate Insurer hereunder. This indemnity shall survive the termination of this Agreement and the payment of the Mortgage Loans. The Sub-Servicer or Certificate Insurer, as the Backup Servicercase may be, shall promptly notify the Indenture Trustee and the Holders and their respective Affiliates and the directors, officers, employees and agents of each thereof (the "Indemnified Parties"), from and against:
(a) any Servicer if a claim is made by a third party with respect to a breach of or any inaccuracy in any representation or warranty made by of the Servicer Servicer's representations and warranties and covenants contained in this Agreement or in any certificate delivered pursuant thereto;
(b) any breach of or failure by the Servicer way relating to perform any covenant or obligation of the Servicer set out or contemplated in this Agreement (except for any such breach or failure which has been fully remedied in accordance with Section 4.03);
(c) the negligence, recklessness or willful misconduct of the Servicer;
(d) any dispute, counterclaim, defense, loss, liability, expense, damage or injury suffered or sustained by reason of any acts, omissions or alleged acts or omissions arising out of any act or failure to act on the part of the Servicer with respect to its obligations under this Agreement, including but not limited to any judgment, award, settlement, reasonable attorneys' fees and other reasonable costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim;
(e) any failure by the Servicer to comply with any applicable Law with respect to any Railcar Asset;
(f) the commingling by the Servicer of Collections at any time with any other funds; or
(g) any inability to obtain any judgment in or utilize the court or other adjudication system of, any jurisdiction in which a Lessee may be located as a result of the failure of the Servicer to qualify to do business or file any notice perform its duties in compliance with the terms of business activity report or any similar report; provided, however, that (i) the this Agreement. The Servicer shall not indemnify promptly notify the Indemnified Parties if such actsSub-Servicer and the Certificate Insurer of any claim of which it has been notified pursuant to this Section 7.08 by a Person other than the party claiming indemnification, omissions or alleged acts or omissions constitute fraudas the case may be, negligenceand, or willful misconduct by such Indemnified Partyin any event, (ii) shall promptly notify the Sub-Servicer shall not indemnify and the Indemnified Parties for any liability, cost or expense Certificate Insurer of the Collateral its intended course of action with respect to any federalclaim.
(2) The Servicer shall be entitled to participate in and, state upon notice to the Sub-Servicer and the Certificate Insurer, assume the defense of any such action or local income or franchise taxes claim in reasonable cooperation with, and with the reasonable cooperation of the Sub-Servicer and the Certificate Insurer. The Sub-Servicer and the Certificate Insurer shall have the right to employ their own counsel in any such action in addition to the counsel of the Servicer, but the fees and expenses of such counsel shall be at the expense of the Sub-Servicer and the Certificate Insurer, unless (or any interest or penalties with respect theretoa) required to be paid the employment of counsel by the Holders Sub-Servicer and the Certificate Insurer at its expense has been authorized in connection herewith to any taxing authoritywriting by the Servicer, (iiib) the Servicer has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, or (c) the named parties to any such action or proceeding (including any impleaded parties) include the Servicer and either the Sub-Servicer or the Certificate Insurer, or both, and the Sub-Servicer and the Certificate Insurer have been advised by counsel that there may be one or more legal defenses available to them which are different from or additional to those available to the Servicer. The Servicer shall not indemnify the Indemnified Parties in respect be liable for any settlement of any Tax Payment Amount owing by any Company, except to the extent that (A) such claim or action unless the Servicer shall have failed consented thereto or be in default on its obligations hereunder. Any failure by the Sub-Servicer or the Certificate Insurer to include in the Monthly Servicer Report complete and correct information in respect of such Tax Payment Amount and the Tax Payment Recipient thereof and (B) amounts shall have been paid to or at the direction of the Companies under Section 12.02(d) or Section 6.08 of the Indenture, as applicable, which would not have been so paid but for such failure, and (iv) in the event that a Successor Servicer (including the Backup Servicer) shall succeed to the duties of the Servicer, comply with the provisions of this Section 5.03 section shall not apply to relieve the Servicer of liability only if such Successor Servicer unless expressly agreed to thereby. The provisions of this Section 5.03 shall survive any expiration or termination of this Agreement. Any indemnification owed failure is materially prejudicial to the Indemnified Parties under this Section 5.03 shall be due and payable within 30 days position of the applicable Indemnified Party's demand thereforServicer and then only to the extent of such prejudice.
Appears in 1 contract
Servicer Indemnification. The Servicer shall hereby agrees to indemnify and hold harmless each of the Companies, the Class A Note Insurer, the Backup Servicer, the Indenture Trustee and the Holders and their respective Affiliates and the directors, officers, employees and agents of each thereof (the "Indemnified Parties"), Party from and againstagainst Indemnified Amounts awarded against or incurred by any of them (excluding however (a) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party and (b) recourse (except as otherwise specifically provided in any Transaction Document) for uncollectible Receivables) arising out of, relating to or resulting from:
(ai) reliance on any breach of representation, warranty or any inaccuracy in any representation covenant made or warranty statement made or deemed made by the Servicer in this Agreement (or in any certificate delivered pursuant thereto;
(bof its Responsible Officers) any breach of under or failure by the Servicer to perform any covenant or obligation of the Servicer set out or contemplated in this Agreement (except for any such breach or failure which has been fully remedied in accordance with Section 4.03);
(c) the negligence, recklessness or willful misconduct of the Servicer;
(d) any dispute, counterclaim, defense, loss, liability, expense, damage or injury suffered or sustained by reason of any acts, omissions or alleged acts or omissions arising out of any act or failure to act on the part of the Servicer with respect to its obligations under this Agreement, including but not limited to any judgment, award, settlement, reasonable attorneys' fees and other reasonable costs or expenses incurred in connection with any Transaction Document which shall have been incorrect when made or deemed made or which the defense of any actual or threatened action, proceeding or claim;Transferor shall have failed to perform; POOLING AND SERVICING AGREEMENT
(eii) any the failure by the Servicer to comply with any Transaction Document or any applicable Requirement of Law with respect to any Railcar AssetReceivable, Account, Trust Asset or related Cardholder Agreement;
(fiii) the commingling any failure by the Servicer to perform its duties or obligations in accordance with the provisions of any Transaction Document, including any failure to so perform in connection with servicing, administering or collecting any Receivable or Account; or
(iv) any commingling of Collections at any time with any other funds; or
(g) any inability to obtain any judgment in or utilize the court or other adjudication system of, any jurisdiction in which . Any Indemnified Amounts due hereunder shall be payable within fifteen Business Days of submission of a Lessee may be located as a result of the failure of the Servicer to qualify to do business or file any notice of business activity report or any similar report; provided, however, that (i) the Servicer shall not indemnify claim by the Indemnified Parties if such acts, omissions or alleged acts or omissions constitute fraud, negligence, or willful misconduct by such Indemnified Party, (ii) Party which describes in reasonable detail the Servicer shall not indemnify the Indemnified Parties for any liability, cost or expense of the Collateral with respect to any federal, state or local income or franchise taxes (or any interest or penalties with respect thereto) required to be paid by the Holders in connection herewith to any taxing authority, (iii) the Servicer shall not indemnify the Indemnified Parties in respect of any Tax Payment Amount owing by any Company, except to the extent that (A) the Servicer shall have failed to include in the Monthly Servicer Report complete and correct information in respect of such Tax Payment Amount and the Tax Payment Recipient thereof and (B) amounts shall have been paid to or at the direction of the Companies under Section 12.02(d) or Section 6.08 of the Indenture, as applicable, which would not have been so paid but basis for such failure, and (iv) in the event that a Successor Servicer (including the Backup Servicer) shall succeed to the duties of the Servicer, the provisions of this Section 5.03 shall not apply to such Successor Servicer unless expressly agreed to therebyclaim. The provisions rights of this Section 5.03 shall survive any expiration or termination of this Agreement. Any indemnification owed to the Indemnified Parties under this Section 5.03 8.04 shall be due and payable within 30 days survive the collection of all Receivables, the termination of the applicable Indemnified Party's demand thereforTrust, the payment of all amounts otherwise due hereunder, the discharge of this Agreement and the resignation or removal of the Trustee.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Elder Beerman Stores Corp)
Servicer Indemnification. (a) The Servicer shall indemnify and hold harmless each of the Companies, the Class A Note Insurer, the Backup Servicer, the Indenture Trustee and the Holders and their respective Affiliates and the directors, officers, employees and agents of each thereof (the "Indemnified Parties"), Party from and against:
(a) any breach of or any inaccuracy in any representation or warranty made by the Servicer in this Agreement or in any certificate delivered pursuant thereto;
(b) any breach of or failure by the Servicer to perform any covenant or obligation of the Servicer set out or contemplated in this Agreement (except for any such breach or failure which has been fully remedied in accordance with Section 4.03);
(c) the negligence, recklessness or willful misconduct of the Servicer;
(d) any dispute, counterclaim, defense, loss, liability, expense, damage or injury against Indemnified Amounts suffered or sustained by reason of any acts, omissions or alleged acts or omissions arising out of any act or failure to act on the part of the Servicer with respect to its obligations under this Agreement, including but not limited to any judgment, award, settlement, reasonable attorneys' fees and other reasonable costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim;
(e) any failure by the Servicer to comply with any applicable Law with respect to any Railcar Asset;
(f) the commingling breach by the Servicer of Collections at any time with any other funds; or
(g) any inability to obtain any judgment in its representations and warranties or utilize the court or other adjudication system ofobligations under this Indenture, any jurisdiction in which a Lessee may be located as a result of the failure of the Servicer to qualify to do business or file any notice of business activity report or any similar report; providedexcluding, however, that Indemnified Amounts to the extent resulting from (i) the Servicer shall not indemnify the Indemnified Parties if such actswillful misconduct, omissions or alleged acts or omissions constitute fraudbad faith, gross negligence, or willful misconduct the reckless disregard by such Indemnified PartyParty of any of his, her or its obligations and duties, (ii) the Servicer shall not indemnify the Indemnified Parties recourse for uncollectible Acquired Advances, (iii) lost profits or for consequential, special or punitive damages or (iv) any liability, cost or expense of the Collateral with respect to any federal, state or local income or franchise taxes (or any interest or penalties with respect thereto) required to be paid or other taxes on or measured by the Holders gross or net income or receipts of such Indemnified Party or (except as otherwise provided in any Supplement) any withholding taxes, in each case to the extent such Indemnified Amounts are incurred by such Indemnified Party arising out of or as a result of this Indenture or the security interest conveyed hereunder in Pledged Assets or in respect of any Loan Document or any Acquired Advance or the Purchase and Contribution Agreement. Indemnification pursuant to this Section 8.04 shall not be payable from the Pledged Assets. The agreement contained in this Section 8.04 shall survive the collection of all Acquired Advances, the termination of this Indenture and the payment of all amounts otherwise due hereunder.
(b) In case any proceeding shall be instituted involving any Person in respect of which indemnity may be sought pursuant to this Section 8.04, the Indemnified Party shall promptly notify the Servicer in writing and the Servicer, upon request of the Indemnified Party, shall retain counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party and any others may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the reasonable fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the Servicer and the Indemnified Party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the Servicer and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the Servicer shall, in connection herewith to with any taxing authorityproceeding or related proceedings in the same jurisdiction, (iii) not be liable for the reasonable fees and expenses of more than one separate firm for all such Indemnified Parties. It is further understood that the Servicer shall not indemnify the be liable to any Indemnified Parties in respect of any Tax Payment Amount owing by any Company, except to the extent that (A) Party unless such Indemnified Party promptly notifies the Servicer shall have failed to include in the Monthly Servicer Report complete and correct information in respect writing of such Tax Payment Amount and the Tax Payment Recipient thereof and (B) amounts shall have been paid to or at the direction of the Companies under Section 12.02(d) or Section 6.08 of the Indenture, as applicable, which would not have been so paid but its request for such failure, and (iv) in the event that a Successor Servicer (including the Backup Servicer) shall succeed to the duties of the Servicer, the provisions of this Section 5.03 shall not apply to such Successor Servicer unless expressly agreed to thereby. The provisions of this Section 5.03 shall survive any expiration or termination of this Agreement. Any indemnification owed to the Indemnified Parties under this Section 5.03 shall be due and payable within 30 days of the applicable Indemnified Party's demand thereforindemnification.
Appears in 1 contract
Sources: Master Trust Indenture and Security Agreement (Ag Services of America Inc)
Servicer Indemnification. The Servicer shall hereby agrees to indemnify and hold harmless the Buyer and its officers, directors, employees, representatives, agents and each of the Companies, the Class A Note Insurer, the Backup Servicer, the Indenture Trustee and the Holders and their respective Affiliates Affiliates, successors and the directorsassigns (each, officers, employees and agents of each thereof (the "an “Indemnified Parties"), Person”) from and against:
against any and all damages, claims, losses, costs, expenses and liabilities (aincluding, without limitation, reasonable and documented attorneys’ fees and expenses) any breach of or any inaccuracy in any representation or warranty made by the Servicer in this Agreement or in any certificate delivered pursuant thereto;
(b) any breach of or failure by the Servicer to perform any covenant or obligation all of the Servicer set out or contemplated in this Agreement (except for any such breach or failure which has been fully remedied in accordance with Section 4.03);
(cforegoing being collectively referred to as “Indemnified Amounts”) the negligence, recklessness or willful misconduct of the Servicer;
(d) any dispute, counterclaim, defense, loss, liability, expense, damage or injury suffered or sustained by reason of any acts, omissions or alleged acts or omissions arising out of any act or failure resulting from or related to act on the part of the Servicer with respect to its obligations under this Agreement, including but not limited to any judgment, award, settlement, reasonable attorneys' fees and other reasonable costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim;
(ei) any failure by the Servicer to perform its duties or obligations as Servicer hereunder in accordance with this Agreement or to comply with any applicable Law Applicable Law, (ii) any breach of the Servicer’s representations, warranties or covenants under any Transaction Document or (iii) any claim brought by any Person other than an Indemnified Person arising from the Servicer’s servicing or collection activities with respect to any Railcar Asset;
(f) the commingling by the Servicer of Collections at any time with any other funds; or
(g) any inability to obtain any judgment in or utilize the court or other adjudication system of, any jurisdiction in which a Lessee may be located as a result of the failure of the Servicer to qualify to do business or file any notice of business activity report or any similar reportPurchased Receivables; provided, however, that in all events there shall be excluded from the foregoing indemnification any damages, claims, losses, costs, expenses or liabilities to the extent (ia) the Servicer shall not indemnify the Indemnified Parties if a final judgment of a court of competent jurisdiction holds that such acts, omissions or alleged acts or omissions constitute fraud, negligence, amounts resulted from gross negligence or willful misconduct by of the Indemnified Person seeking indemnification, (b) due to the credit risk of the Account Debtor and for which reimbursement would constitute recourse to the Seller or the Servicer for uncollectible Receivables, (c) such amounts constitute Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim, (d) the same have been fully and finally paid in cash to such Indemnified Party, Person pursuant to any other provision of this Agreement or any other Transaction Document or (iie) the same are expressly excluded by any provision of this Agreement or any other Transaction Document; provided, however that nothing contained in this sentence shall limit the liability of Seller or the Servicer shall not indemnify or limit the recourse of any Indemnified Parties Person to the Seller or the Servicer for any liability, cost or expense of the Collateral with respect to any federal, state or local income or franchise taxes (or any interest or penalties with respect thereto) required amounts otherwise specifically provided to be paid by the Holders in connection herewith to any taxing authority, (iii) Seller or the Servicer shall not indemnify the Indemnified Parties in respect of hereunder. Subject to Section 4(l) below, any Tax Payment Amount owing by any Company, except to the extent that (A) the Servicer shall have failed to include in the Monthly Servicer Report complete and correct information in respect of such Tax Payment Amount and the Tax Payment Recipient thereof and (B) amounts shall have been paid to or at the direction of the Companies under Section 12.02(d) or Section 6.08 of the Indenture, as applicable, which would not have been so paid but for such failure, and (iv) in the event that a Successor Servicer (including the Backup Servicer) shall succeed to the duties of the Servicer, the provisions of this Section 5.03 shall not apply to such Successor Servicer unless expressly agreed to thereby. The provisions of this Section 5.03 shall survive any expiration or termination of this Agreement. Any indemnification owed to the Indemnified Parties under this Section 5.03 shall be amount due and payable within 30 days of pursuant to this section shall be paid to the applicable Indemnified Party's Buyer’s Account in immediately available funds by no later than the first Weekly Settlement Date following demand therefortherefor by the Buyer.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Cincinnati Bell Inc)
Servicer Indemnification. The Servicer shall hereby agrees to indemnify and hold harmless each of the Companies, the Class A Note Insurer, the Backup Servicer, the Indenture Trustee and the Holders and their respective Affiliates and the directors, officers, employees and agents of each thereof (the "Indemnified Parties"), Party from and againstagainst Indemnified Amounts awarded against or incurred by any of them (excluding however (a) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party and (b) recourse (except as otherwise specifically provided in any Transaction Document) for uncollectible Receivables) relating to or resulting from:
(ai) reliance on any breach of representation, warranty or any inaccuracy in any representation covenant made or warranty statement made or deemed made by the Servicer in this Agreement (or any of its Responsible Officials) under or in connection with any certificate delivered pursuant theretoTransaction Document which shall have been incorrect in any material respect when made or deemed made or which the Servicer shall have failed to perform;
(b) any breach of or failure by the Servicer to perform any covenant or obligation of the Servicer set out or contemplated in this Agreement (except for any such breach or failure which has been fully remedied in accordance with Section 4.03);
(cii) the negligence, recklessness or willful misconduct of the Servicer;
(d) any dispute, counterclaim, defense, loss, liability, expense, damage or injury suffered or sustained by reason of any acts, omissions or alleged acts or omissions arising out of any act or failure to act on the part of the Servicer with respect to its obligations under this Agreement, including but not limited to any judgment, award, settlement, reasonable attorneys' fees and other reasonable costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim;
(e) any failure by the Servicer to comply with any Transaction Document or any applicable Requirement of Law with respect to any Railcar AssetTrust Asset or related Contract;
(fiii) the commingling any failure by the Servicer to perform its duties or obligations in accordance with the provisions of any Transaction Document, including any failure to so perform in connection with servicing, administering or collecting any Receivable; or
(iv) any commingling of Collections at any time with any other funds; or
. The initial Servicer further agrees (g) any inability to obtain any judgment in whether or utilize the court or other adjudication system of, any jurisdiction in which a Lessee may be located as a result of the failure of not it is the Servicer at the time any claim is made under this sentence) to qualify to do business or file any notice indemnify (a) each Indemnified Party from and against all reasonable costs and expenses (including reasonable fees and expenses of business activity report or any similar report; provided, however, that (icounsel for such Indemnified Party) the Servicer shall not indemnify the Indemnified Parties if such acts, omissions or alleged acts or omissions constitute fraud, negligence, or willful misconduct incurred by such Indemnified PartyParty in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Transaction Documents and (iib) the Servicer shall not indemnify Trustee from and against all losses, costs and expenses incurred by the Indemnified Parties for any liabilityTrustee, cost but in each case under clause (a) and (b) of this sentence only to the extent that such costs and expenses were incurred or expense of the Collateral arose during or with respect to any federal, state or local income or franchise taxes period in which Zenith (or any interest of its Affiliates other than the Transferor) is or penalties with respect thereto) required shall be the Servicer. Indemnification pursuant to this Section 8.04 shall only be paid by payable from the Holders in connection herewith to any taxing authority, (iii) the Servicer shall not indemnify the Indemnified Parties in respect of any Tax Payment Amount owing by any Company, except to the extent that (A) the Servicer shall have failed to include in the Monthly Servicer Report complete and correct information in respect of such Tax Payment Amount and the Tax Payment Recipient thereof and (B) amounts shall have been paid to or at the direction of the Companies under Section 12.02(d) or Section 6.08 of the Indenture, as applicable, which would not have been so paid but for such failure, and (iv) in the event that a Successor Servicer (including the Backup Servicer) shall succeed to the duties assets of the Servicer. The agreement contained in this Section 8.04 shall survive the collection of all Receivables, the provisions of this Section 5.03 shall not apply to such Successor Servicer unless expressly agreed to thereby. The provisions of this Section 5.03 shall survive any expiration or termination of this Agreementthe Trust and the payment of all amounts otherwise due hereunder. Any indemnification owed to Indemnified Amounts due hereunder shall be payable within fifteen Business Days of submission of a claim by the Indemnified Parties under this Section 5.03 shall be due and payable within 30 days of Party which describes in reasonable detail the applicable Indemnified Party's demand thereforbasis for such claim.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Zenith Electronics Corp)
Servicer Indemnification. The (a) Without limiting any other rights which any Servicer Indemnified Party may have under any Loan Document or Applicable Law, the Servicer, shall save, defend, indemnify and hold harmless each of (on an after tax basis) the CompaniesPurchaser, the Class A Note InsurerCollateral Agent, the Backup Servicer, the Indenture Trustee Administrative Agent and the Holders Lenders, and their respective Affiliates successors, transferees, participants and the directorsassigns and their respective members, officers, employees directors, employees, representatives and agents of each thereof (the "each, a “Servicer Indemnified Parties"Party”), forthwith on demand, from and against any loss, liability, claim, judgment, tax, cost, expense (including reasonable attorneys’ fees and costs and expenses of litigation reasonably incurred), damage or injury imposed on, asserted against:
, awarded against or suffered or sustained by any Servicer Indemnified Party and arising out of, imposed by reason of, incurred in connection with or attributable to (ai)(x) any breach the failure by the Servicer to perform its duties as Servicer under this Servicing Agreement, (y) the inaccuracy of or any inaccuracy in any representation or warranty made by the it as Servicer in this Agreement or in hereunder (including any certificate Officer’s Certificate delivered pursuant thereto;
(b) any breach of or failure by the Servicer, the Monthly Servicing Report or other information, report or certificate) or (z) a Servicer to perform any covenant Default, (ii) errors or obligation omissions of the Servicer set out related to its duties as Servicer, including computational errors made by it in connection with any Monthly Servicing Report, (iii) its activities as Servicer under or in connection with the Loan Documents or the transactions contemplated in this Agreement thereby, (except for any such breach or failure which has been fully remedied in accordance with Section 4.03);
(civ) the negligencefailure to vest and maintain vested in the Administrative Agent, recklessness as against ACG and the Purchaser and their respective creditors, a first priority perfected security interest in, to and under any and all of the Transferred Receivables, free and clear of any Lien, (v) except as expressly permitted under the terms of the Loan Documents, the commingling of the Transferred Receivables (including the income, payments and/or proceeds thereof) at any time with any other assets of ACG or any other Person, or (vi) the failure to pay or to remit any Tax or other governmental fee or charge required to be paid or remitted by it as Servicer under any Loan Document, all interest and penalties thereon or with respect thereto, and all costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which relate to the Transferred Receivables and which have not been timely paid by the Servicer; provided, however, that the Servicer shall not have any obligation to indemnify a Servicer Indemnified Party to the extent that acts of fraud, willful misconduct of the Servicer;
(d) any dispute, counterclaim, defense, or gross negligence by such Servicer Indemnified Party caused such loss, liability, claim, judgment, tax, cost, expense, damage or injury imposed on, asserted against, awarded against or suffered or sustained by reason such Servicer Indemnified Party.
(b) Upon the occurrence of a Servicer Default and delivery of a Servicer Termination Notice, the outgoing Servicer agrees to pay on demand (or to reimburse the Purchaser for), to the Collateral Agent, the Administrative Agent and the Lenders, as applicable, any acts, omissions or alleged acts or omissions arising out of any act or failure to act on the part of the Servicer with respect to its obligations under this Agreement, pocket costs and expenses (including but not limited to any judgment, award, settlement, reasonable attorneys' fees and other reasonable costs or expenses of counsel and expenses of litigation reasonably incurred) incurred by any such Person in connection with the defense enforcement of any actual or threatened action, proceeding or claim;
(e) any failure by the Servicer to comply with any applicable Law with respect to any Railcar Asset;
(f) the commingling by the Servicer of Collections at any time with any other funds; or
(g) any inability to obtain any judgment in or utilize the court or other adjudication system of, any jurisdiction in which a Lessee may be located as a result termination of the failure outgoing Servicer as Servicer and installation of the Servicer to qualify to do business or file any notice of business activity report or any similar report; successor Servicer, provided, however, that the outgoing Servicer agrees also to pay on demand (ior to reimburse the Administrative Agent and the Lenders for) the Servicer shall not indemnify the Indemnified Parties if such acts, omissions or alleged acts or omissions constitute fraud, negligence, or willful misconduct by such Indemnified Party, reasonable out of pocket costs and expenses (iiincluding reasonable fees and expenses of counsel and expenses of litigation reasonably incurred) the Servicer shall not indemnify the Indemnified Parties for any liability, cost or expense of the Collateral with respect to Agent, the Administrative Agent and the Lenders, as applicable, incurred by any federal, state or local income or franchise taxes (or any interest or penalties with respect thereto) required to be paid by the Holders such Person in connection herewith with a foreclosure on the Transferred Receivables caused by or related to such Servicer Default (it being understood that the cost of foreclosure does not include any taxing authority, costs of servicing and enforcing the Transferred Receivables after such foreclosure).
(iiic) the Servicer shall not indemnify the Indemnified Parties in respect of any Tax Payment Amount owing by any Company, except to the extent that (A) the Servicer The Purchaser shall have failed to include in the Monthly Servicer Report complete right to, and correct information in respect of such Tax Payment Amount and the Tax Payment Recipient thereof and (B) amounts shall have been paid to or at the direction of the Companies Administrative Agent shall, set-off any indemnification amounts due from the Servicer under this Section 12.02(d) or Section 6.08 6.1 against amounts owed to the Servicer by the Purchaser. Upon any such set-off, the Purchaser shall give notice to the Servicer and the Administrative Agent of the Indenture, as applicable, which would not have been so paid but for such failure, amount thereof and the reasons therefor.
(ivd) in the event that a Successor Servicer (including the Backup Servicer) shall succeed to the duties of the Servicer, the provisions of this Section 5.03 shall not apply to such Successor Servicer unless expressly agreed to thereby. The provisions of this Section 5.03 6.1 shall survive the payment in full of all amounts due and owing to the Collateral Agent, the Administrative Agent or the Lenders under the Credit Agreement, the termination of the Credit Agreement and any expiration or termination of this Agreement. Any indemnification owed to Servicing Agreement or the Indemnified Parties under this Section 5.03 shall be due and payable within 30 days appointment of the applicable Indemnified Party's demand thereforany successor Servicer.
Appears in 1 contract
Servicer Indemnification. The Servicer shall hereby agrees to indemnify each Indemnified Party from and hold harmless each against Indemnified Amounts awarded against or incurred by any of them arising out of or resulting from this Agreement, the activities of the CompaniesTrust or the Trustee in connection herewith, the Class A Note InsurerTransferor's use of proceeds of Transfers of Receivables or reinvestments of Collections, the Backup Servicerinterest conveyed hereunder in Trust Assets, or in respect of any Receivable or the Indenture Trustee and the Holders and their respective Affiliates and the directors, officers, employees and agents of each thereof Receivables Purchase Agreements (the "Indemnified Parties"), from and against:
excluding however (a) any breach of or any inaccuracy in any representation or warranty made by the Servicer in this Agreement or in any certificate delivered pursuant thereto;
(b) any breach of or failure by the Servicer to perform any covenant or obligation of the Servicer set out or contemplated in this Agreement (except for any such breach or failure which has been fully remedied in accordance with Section 4.03);
(c) the negligence, recklessness Indemnified Amounts resulting from gross negligence or willful misconduct of the Servicer;
(d) any dispute, counterclaim, defense, loss, liability, expense, damage or injury suffered or sustained by reason of any acts, omissions or alleged acts or omissions arising out of any act or failure to act on the part of such Indemnified Party to which such Indemnified Amount would otherwise be due, (b) losses in respect of Receivables to the Servicer with respect extent reimbursement therefor would constitute credit recourse to its obligations under this Agreement, including but not limited to any judgment, award, settlement, reasonable attorneys' fees and other reasonable costs or expenses incurred in connection with the defense Transferor for nonpayment of any actual or threatened action, proceeding or claim;
Receivable by any Originator and (ec) any failure by the Servicer to comply with any applicable Law with respect to any Railcar Asset;
(f) the commingling by the Servicer of Collections at any time with any other funds; or
(g) any inability to obtain any judgment in or utilize the court or other adjudication system of, any jurisdiction in which a Lessee may be located as a result of the failure of the Servicer to qualify to do business or file any notice of business activity report or any similar report; provided, however, that (i) the Servicer shall not indemnify the Indemnified Parties if such acts, omissions or alleged acts or omissions constitute fraud, negligence, or willful misconduct by such Indemnified Party, (ii) the Servicer shall not indemnify the Indemnified Parties for any liability, cost or expense of the Collateral with respect to any federal, state or local income or franchise taxes or similar taxes (or any interest or penalties with respect thereto) required to be paid incurred by such Indemnified Party arising out of or as a result of this Agreement or the Holders interest conveyed hereunder in connection herewith to any taxing authority, (iii) the Servicer shall not indemnify the Indemnified Parties Trust Assets or in respect of any Tax Payment Amount owing by any Company, except Receivable or the Receivables Purchase Agreements) to the extent that caused by:
(Ai) reliance on any representation, warranty or covenant made by the Servicer (or any of its Responsible Officers) under or in connection with this Agreement which shall have been incorrect in any material respect when made or which the Servicer shall have failed to include in perform;
(ii) the Monthly failure by the Servicer Report complete and correct information in to comply with any applicable Requirement of Law with respect to any Receivable or the related Contract;
(iii) any commingling by the Servicer of such Tax Payment Amount and the Tax Payment Recipient thereof and (B) amounts shall have been paid to or at the direction Collections with other funds of the Companies under Section 12.02(d) Servicer or Section 6.08 of the Indenture, as applicable, which would not have been so paid but for such failure, and any Affiliate;
(iv) in any claim brought by any Person other than an Indemnified Party arising from any activity by the event that a Successor Servicer (including the Backup Servicer) shall succeed to the duties of the Servicer, the provisions of this Section 5.03 shall not apply to such Successor Servicer unless expressly agreed to thereby. The provisions of this Section 5.03 shall survive any expiration or termination of this Agreement. Any indemnification owed to the Indemnified Parties under this Section 5.03 shall be due and payable within 30 days of the applicable Indemnified Party's demand therefor.or
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Dell Computer Corp)