Claims Excluded. The following are excluded from the Lessee's agreement to indemnify under this Section 7.2: (i) Claims with respect to any Unit to the extent attributable to acts or events occurring after (and not attributable to events that have occurred or conditions existing prior to) (A) in the case of the consummation by the Lessee of a purchase option under Section 22.1 or 22.3 of the Lease or the occurrence of an Event of Loss with respect to such Unit under Section 11 of the Lease, the later to occur of (x) the payment of all amounts due from the Lessee in connection with any such event and (y) the release of the Lien of the Indenture on such Unit or (B) in all other cases, the last to occur of (x) with respect to such Unit, the earlier to occur of the termination of the Lease or the expiration of the Lease Term, (y) with respect to each Unit, the return of such Unit to the Lessor in accordance with the terms of the Lease (it being understood that, so long as any Unit is in storage as provided in Section 6.1 of the Lease, the date of return thereof for the purpose of this clause (i) shall be the last day of the Storage Period) and (z) the release of the Lien of the Indenture on such Unit; (ii) Claims which are Taxes or any loss of tax benefits or increases in tax liability (provided that this clause (ii) shall not preclude a Claim from being paid on an After-Tax Basis), but not excluding Taxes or any loss of tax benefits or increases in tax liability with respect to any Indemnified Person, or any other person who, together with such Indemnified Person, is treated as one employer for employee benefit plan purposes, as a result of, or in connection with, any "prohibited transaction" within the meaning of the provisions of the Code or regulations thereunder or as set forth in Section 406 of ERISA or the regulations implementing ERISA, Section 4975 of the Code or the regulations thereunder or applicable Similar Laws or the regulations thereunder; (iii) with respect to any particular Indemnified Person, Claims resulting from the gross negligence or willful misconduct of such Indemnified Person or a Related Party of such Indemnified Person (other than gross negligence or willful misconduct imputed as a matter of law to such Indemnified Person solely by reason of its interest in the Equipment), or any breach of any covenant, or falsity of any representation or warranty of such Indemnified Person or such Related Party; (iv) Claims to the extent attributable to any transfer by the Lessor of the Equipment or any portion thereof or any transfer by the Owner Participant of all or any portion of its interest in the Trust Estate other than (x) any such transfer in connection with a Lease Event of Default or the exercise of remedies in connection therewith and (y) any such transfer to the Lessee or its designee in connection with a purchase or a voluntary termination as contemplated by the Lease or Section 6.9 or (z) any such transfer made pursuant to Section 7.1(m); (v) with respect to any particular Indemnified Person that is the Owner Participant or the Owner Trustee in the case of clause (a) below or that is the Loan Participant in the case of clause (b) below, unless such transfer is required by the terms of the Operative Agreements or occurs during the continuance of a Lease Event of Default, Claims relating to any offer, sale, assignment, transfer or other disposition (voluntary or involuntary) (a) in the case of the Owner Participant, of any of its interest in the Beneficial Interest (other than pursuant to Section 6.9 or Section 7.1(m)) or (b) with respect to the Loan Participant, of all or any portion of the Loan Participant's interest in the Equipment Notes or the collateral therefor; (vi) with respect to any particular Indemnified Person, Claims resulting from the imposition of any Lessor's Lien (or other liens not expressly permitted) attributable to such Indemnified Person or a Related Party of such Indemnified Person; (vii) with respect to any particular Indemnified Person, Claims to the extent the risk thereof has been expressly assumed by such Indemnified Person in connection with the exercise by such Indemnified Person of any inspection rights under the Operative Documents; (viii) Claims relating to any amount that constitutes or (in the case of subclause (D)) is attributable to: (A) principal of, or interest or premium on the Equipment Notes or securities issued by the Pass Through Trusts (except to the extent such amounts are otherwise indemnified pursuant to Section 7.2(c)(iv)); (B) Transaction Costs (without limiting Lessee's obligations under Sections 2.5(c) and 2.5(e)); (C) ordinary and usual operating or overhead expenses of the applicable Indemnified Person; (D) Indenture Events of Default not attributable to a Lease Event of Default or a Manager Default; and (E) failure by Owner Trustee, Indenture Trustee or Pass Through Trustee, respectively, to distribute any amounts held by it in accordance with the Operative Agreements; and (ix) Claims relating to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any of the Operative Agreements which are not (1) requested by the Lessee or (2) required by any applicable law or regulation (other than laws or regulations solely relating to the business of the Lessor, the Indenture Trustee, the Trust Company, the Pass Through Trustee, the Initial Purchasers, the Collateral Agent, the Policy Provider or any Participant) or (3) entered into in connection with, or as a result of, a Lease Default or (4) required pursuant to the terms of the Operative Agreements (including such reasonable expenses incurred in connection with any adjustment pursuant to Section 2.6).
Appears in 8 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Claims Excluded. The following are excluded from the LesseeTILC's agreement to indemnify under this Section 7.27.3:
(i) Claims with respect to any Unit to the extent attributable to acts or events occurring after (and not attributable to events that have occurred or conditions existing prior to) except (A) in the any case of the consummation by the Lessee of a purchase option where remedies are being exercised under Section 22.1 or 22.3 15 of the Lease or for so long as the occurrence of an Event of Loss with respect Lessor shall be entitled to exercise remedies under such Unit under Section 11 of the Lease15, the later to occur of (x) the payment of all amounts due from the Lessee in connection with any such event and (y) the release of the Lien of the Indenture on such Unit or (B) in all other cases, the last Lessee has assumed any of the obligations with respect to the Equipment Notes under Section 3.6 of the Indenture and the Equipment Notes remain outstanding under the Indenture) the later to occur of (x) with respect to such Unit, the earlier to occur of the termination of the Lease or the expiration of the Lease TermTerm in accordance with the terms thereof, and (y) with respect to each such Unit, the return of such Unit to the Lessor in accordance with the terms of the Lease (it being understood that, so long as any Unit is in storage as provided in Section 6.1 6.1(c) of the Lease, the date of return thereof for the purpose of this clause (i) shall be the last day of the Storage Period) and (z) the release of the Lien of the Indenture on such Unit);
(ii) Claims which are Taxes or any loss of tax benefits or increases in tax liability (liability; provided that this clause (ii) shall not preclude a Claim from being paid apply to Taxes necessary to pay Claims on an After-Tax Basis), but not excluding Taxes or any loss of tax benefits or increases in tax liability with respect to any Indemnified Person, or any other person who, together with such Indemnified Person, is treated as one employer for employee benefit plan purposes, as a result of, or in connection with, any "prohibited transaction" within the meaning of the provisions of the Code or regulations thereunder or as set forth in Section 406 of ERISA or the regulations implementing ERISA, Section 4975 of the Code or the regulations thereunder or applicable Similar Laws or the regulations thereunder;
(iii) with respect to any particular Indemnified Person, Claims to the extent resulting from (x) the gross negligence or willful misconduct of such Indemnified Person or a Related Party of such Indemnified Person (other than gross negligence or willful misconduct imputed as a matter of law to such Indemnified Person solely by reason of its interest in the Equipment)Party, or (y) any breach of any covenantcovenant to be performed by such Indemnified Person or a Related Party under any of the Operative Agreements, or the falsity of any representation or warranty of such Indemnified Person or such a Related PartyParty in any of the Operative Agreements or in a document or certificate delivered in connection therewith;
(iv) Claims to the extent attributable to any transfer by the Lessor of the Equipment or any portion thereof or any transfer by the Owner Participant of all or any portion of its interest in the Trust Estate other than (xA) any such transfer in connection with after a Lease Event of Default Default, (B) the transfer of all or any portion of the exercise of remedies Equipment or any Owner Participant's interest in connection therewith and (y) any such transfer the Equipment to the Lessee Lessee, (C) the transfer of all or its designee in connection with any portion of the Equipment to a purchase or a voluntary termination as contemplated by third party pursuant to Lessee's election to terminate the Lease or Section 6.9 or (zD) any such transfer made of all or any portion of the Equipment pursuant to Section 7.1(m)6.9;
(v) with respect to any particular Indemnified Person that is the Owner Participant or the Owner Trustee in the case of clause (a) below or that is the Loan Participant in the case of clause (b) belowPerson, unless such transfer is required by the terms of the Operative Agreements or occurs during the continuance of a Lease Event of Default, Claims relating to any offer, sale, Participation Agreement (TRLI 2001-1A) 77 assignment, transfer or other disposition (voluntary or involuntary)
) (a) in the case of the Owner Participant, of any of its interest in the Beneficial Interest (other than pursuant to Section 6.9 or Section 7.1(m6.9)) , or (b) with respect to the Loan Participant, of all or any portion of the Loan Participant's its interest in the Equipment Notes or the collateral therefor;
(vi) with respect to any particular Indemnified Person, Claims resulting from the imposition of (x) any Lessor's Lien (or other liens not expressly permitted) attributable to such Indemnified Person or a Related Party of or (y) any Lien attributable to such Indemnified PersonPerson or a Related Party not expressly permitted under the Operative Agreements or which such Indemnified Person is required to remove pursuant to the terms of the Operative Agreements;
(vii) with respect to any particular Indemnified Person, Claims to the extent the risk thereof has been expressly assumed by such Indemnified Person in connection with the exercise by such Indemnified Person of any the right of inspection rights granted under Section 6.2 of the Operative DocumentsLease, inspection or restenciling under Section 6.1(c) of the Lease or inspection under Section 13.2 of the Lease;
(viii) Claims relating to any amount that constitutes or (in the case of subclause (D)) is attributable to: (A) principal of, or interest or premium on the Equipment Notes or securities issued by the Pass Through Trusts Certificates;
(except ix) Claims relating to the payment of any amount which constitutes Transaction Costs which the Owner Trustee is obligated to pay pursuant to Section 2.5(a) (other than those that the Lessee may be required to pay under Section 2.5(c) or Section 2.5(e)) or any other amount to the extent such amounts are otherwise indemnified Indemnified Person or a Related Party has expressly agreed to pay such amount without a right of reimbursement, or any Claim payable by any Indemnified Person pursuant to Section 7.2(c)(iv)); any provision of any Operative Agreement that expressly states that such Claim is not subject to indemnification or reimbursement by the Lessee, or any Claim arising out of obligations expressly assumed by the Indemnified Person seeking indemnification or a Related Party;
(Bx) Transaction Costs (without limiting Lessee's obligations under Sections 2.5(c) and 2.5(e)); (C) Claims relating to any amount that is an ordinary and usual operating or overhead expense of any Indemnified Person (it being understood out-of-pocket expenses of the applicable Indemnified Person; payable to third parties do not constitute "ordinary and usual operating or overhead expenses");
(Dxi) Claims relating to an Indenture Events Event of Default that is not attributable to a Lease Event of Default or a Manager Default; ;
(xii) with respect to the Owner Trustee in its individual and trust capacities, and its Related Indemnitee Group, Claims relating to a failure on Participation Agreement (ETRLI 2001-1A) failure by 78 the part of the Owner Trustee, Indenture Trustee or Pass Through Trustee, respectively, to distribute any amounts held by it in accordance with the Operative Agreements; andTrust Agreement any amounts distributable by it thereunder;
(ixxiii) with respect to the Indenture Trustee in its individual and trust capacities, Claims relating to failure on the part of the Indenture Trustee to distribute in accordance with the Indenture any amounts distributable by it thereunder;
(xiv) with respect to the Pass Through Trustee in its individual and trust capacities, Claims relating to failure on the part of the Pass Through Trustee to distribute in accordance with the Pass Through Trust Agreement any amounts distributable by it thereunder;
(xv) Claims relating to the offer, sale or delivery of any Equipment Note or any interest in the Trust Estate;
(xvi) Claims relating to any sale, transfer or holding of the Equipment Notes or Pass Through Certificates being deemed to result in a "prohibited transaction" under ERISA; or
(xvii) Claims relating to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any of the Operative Agreements which amendments, supplements, waivers or consents are not (1) requested by the Lessee TILC or (2) are not specifically required by any applicable law or regulation (other than laws or regulations solely relating to the business of the Lessor, the Indenture Trustee, the Trust Company, the Pass Through Trustee, the Initial Purchasers, the Collateral Agent, the Policy Provider or any Participant) or (3) entered into in connection with, or as a result of, a Lease Default or (4) required pursuant to the terms of the Operative Agreements (including such reasonable expenses incurred in connection with any adjustment pursuant to Section 2.6)Agreements.
Appears in 3 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Claims Excluded. The following are excluded from the Lessee's agreement to indemnify under this Section 7.2:
(i) Claims with respect to any Unit to the extent attributable to acts or events occurring after (and not attributable to events that have occurred or conditions existing prior to) except (A) in the any case of the consummation by the Lessee of a purchase option where remedies Participation Agreement (TRLI 2001-1A) 71 are being exercised under Section 22.1 or 22.3 15 of the Lease or for so long as the occurrence of an Event of Loss with respect Lessor shall be entitled to exercise remedies under such Unit under Section 11 of the Lease15, the later to occur of (x) the payment of all amounts due from the Lessee in connection with any such event and (y) the release of the Lien of the Indenture on such Unit or (B) in all other cases, the last Lessee has assumed any of the obligations with respect to the Equipment Notes under Section 3.6 of the Indenture and the Equipment Notes remain outstanding under the Indenture) the later to occur of (x) with respect to such Unit, the earlier to occur of the termination of the Lease or the expiration of the Lease TermTerm in accordance with the terms thereof, and (y) with respect to each such Unit, the return of such Unit to the Lessor in accordance with the terms of the Lease (it being understood that, so long as any such Unit is in storage as provided in Section 6.1 6.1(c) of the Lease, the date of return thereof for the purpose of this clause (i) shall be the last day of the Storage Period) and (z) the release of the Lien of the Indenture on such Unit);
(ii) Claims which are Taxes Taxes, whether or not the Lessee is required to indemnify therefor under Section 7.1 hereof or under the Tax Indemnity Agreement or any loss of tax benefits or increases in tax liability (whether or not the Lessee is required to indemnify a Indemnified Person elsewhere in the Operative Agreements; provided that this clause (ii) shall not preclude a Claim from being paid apply to Taxes necessary to pay Claims on an After-Tax Basis), but not excluding Taxes or any loss of tax benefits or increases in tax liability with respect to any Indemnified Person, or any other person who, together with such Indemnified Person, is treated as one employer for employee benefit plan purposes, as a result of, or in connection with, any "prohibited transaction" within the meaning of the provisions of the Code or regulations thereunder or as set forth in Section 406 of ERISA or the regulations implementing ERISA, Section 4975 of the Code or the regulations thereunder or applicable Similar Laws or the regulations thereunder;
(iii) with respect to any particular Indemnified Person, Claims to the extent resulting from (x) the gross negligence or willful misconduct of such Indemnified Person or a Related Party of such Indemnified Person (other than gross negligence or willful misconduct imputed as a matter of law to such Indemnified Person solely by reason of its interest in the Equipment)Party, or (y) any breach of any covenantcovenant to be performed by such Indemnified Person or a Related Party under any of the Operative Agreements, or the falsity of any representation or warranty of such Indemnified Person or such a Related PartyParty in any of the Operative Agreements or in a document or certificate delivered in connection therewith;
(iv) Claims to the extent attributable to any transfer by the Lessor of the Equipment or any portion thereof or any transfer by the Owner Participant of all or any portion of its interest in the Trust Estate other than (xA) any such transfer in connection with after a Lease Event of Default Default, (B) the transfer of all or any portion of the exercise of remedies Equipment or any Owner Participant's interest in connection therewith and (y) any such transfer the Equipment to the Lessee Lessee, (C) the transfer of all or its designee in connection with any portion of the Equipment to a purchase or a voluntary termination as contemplated by third party pursuant to Lessee's election to terminate the Lease or Section 6.9 or (zD) any such transfer made of all or any portion of the Equipment pursuant to Section 7.1(m)6.9;
(v) with respect to any particular Indemnified Person that is the Owner Participant or the Owner Trustee in the case of clause (a) below or that is the Loan Participant in the case of clause (b) belowPerson, unless such transfer is required by the terms of the Operative Agreements or occurs during the continuance of a Lease Event of Default, Claims relating to any offer, sale, assignment, transfer or other disposition (voluntary or involuntary)
) (a) in the case of the Owner Participant, of any of its interest in the Beneficial Interest (other than pursuant to Section 6.9 or Section 7.1(m)6.9) or (b) with respect to the Loan Participant, of all or any portion of the Loan Participant's interest in the Equipment Notes or the collateral therefor;; Participation Agreement (TRLI 2001-1A) 72
(vi) with respect to any particular Indemnified Person, Claims resulting from the imposition of (x) any Lessor's Lien (or other liens not expressly permitted) attributable to such Indemnified Person or a Related Party of or (y) any Lien attributable to such Indemnified PersonPerson or a Related Party not expressly permitted under the Operative Agreements or which such Indemnified Person is required to remove pursuant to the terms of the Operative Agreements;
(vii) with respect to any particular Indemnified Person, Claims to the extent the risk thereof has been expressly assumed by such Indemnified Person in connection with the exercise by such Indemnified Person of any the right of inspection rights granted under Section 6.2 of the Operative DocumentsLease, inspection or restenciling under Section 6.1(c) of the Lease or inspection under Section 13.2 of the Lease;
(viii) Claims relating to any amount that constitutes or (in the case of subclause (D)) is attributable to: (A) principal of, or interest or premium on the Equipment Notes or securities issued by the Pass Through Trusts (except to the extent such amounts are otherwise indemnified pursuant to Section 7.2(c)(iv)); (B) Transaction Costs (without limiting Lessee's obligations under Sections 2.5(c) and 2.5(e)); (C) ordinary and usual operating or overhead expenses of the applicable Indemnified Person; (D) Indenture Events of Default not attributable to a Lease Event of Default or a Manager Default; and (E) failure by Owner Trustee, Indenture Trustee or Pass Through Trustee, respectively, to distribute any amounts held by it in accordance with the Operative Agreements; andCertificates;
(ix) Claims relating to the authorization or giving or withholding payment of any future amendmentsamount which constitutes Transaction Costs which the Owner Trustee is obligated to pay pursuant to Section 2.5(a) (other than those that the Lessee may be required to pay under Section 2.5(c) or Section 2.5(e)) or any other amount to the extent such Indemnified Person or a Related Party has expressly agreed to pay such amount without a right of reimbursement, supplementsor any Claim payable by any Indemnified Person pursuant to any provision of any Operative Agreement that expressly states that such Claim is not subject to indemnification or reimbursement by the Lessee, waivers or consents any Claim arising out of obligations expressly assumed by the Indemnified Person seeking indemnification or a Related Party;
(x) Claims relating to any amount that is an ordinary and usual operating or overhead expense of any Indemnified Person (it being understood out-of-pocket expenses payable to third parties do not constitute "ordinary and usual operating or overhead expenses");
(xi) Claims relating to an Indenture Event of Default that is not attributable to a Lease Event of Default;
(xii) with respect to any the Owner Trustee in its individual and trust capacities, and its Related Indemnitee Group, Claims relating to a failure on the part of the Operative Agreements which are not Owner Trustee to distribute in accordance with the Trust Agreement any amounts distributable by it thereunder; Participation Agreement (1TRLI 2001-1A) requested by 73 (xiii) with respect to the Lessee or (2) required by any applicable law or regulation (other than laws or regulations solely Indenture Trustee in its individual and trust capacities, Claims relating to failure on the business part of the Lessor, Indenture Trustee to distribute in accordance with the Indenture Trustee, the Trust Company, the Pass Through Trustee, the Initial Purchasers, the Collateral Agent, the Policy Provider or any Participant) or (3) entered into in connection with, or as a result of, a Lease Default or (4) required pursuant to the terms of the Operative Agreements (including such reasonable expenses incurred in connection with any adjustment pursuant to Section 2.6).amounts distributable by it thereunder;
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Claims Excluded. The following are excluded from the LesseeTILC's agreement to indemnify under this Section 7.27.3:
(i) Claims with respect to any Unit to the extent attributable to acts or events occurring after (and not attributable to events that have occurred or conditions existing prior to) except (A) in the any case of the consummation by the Lessee of a purchase option where remedies are being exercised under Section 22.1 or 22.3 15 of the Lease or for so long as the occurrence of an Event of Loss with respect Lessor shall be entitled to exercise remedies under such Unit under Section 11 of the Lease15, the later to occur of (x) the payment of all amounts due from the Lessee in connection with any such event and (y) the release of the Lien of the Indenture on such Unit or (B) in all other cases, the last Lessee has assumed any of the obligations with respect to the Equipment Notes under Section 3.6 of the Indenture and the Equipment Notes remain outstanding under the Indenture) the later to occur of (x) with respect to such Unit, the earlier to occur of the termination of the Lease or the expiration of the Lease TermTerm in accordance with the terms thereof, and (y) with respect to each such Unit, the return of such Unit to the Lessor in accordance with the terms of the Lease (it being understood that, so long as any Unit is in storage as provided in Section 6.1 6.1(c) of the Lease, the date of return thereof for the purpose of this clause (i) shall be the last day of the Storage Period) and (z) the release of the Lien of the Indenture on such Unit);
(ii) Claims which are Taxes or any loss of tax benefits or increases in tax liability (liability; provided that this clause (ii) shall not preclude a Claim from being paid apply to Taxes necessary to pay Claims on an After-Tax Basis), but not excluding Taxes or any loss of tax benefits or increases in tax liability with respect to any Indemnified Person, or any other person who, together with such Indemnified Person, is treated as one employer for employee benefit plan purposes, as a result of, or in connection with, any "prohibited transaction" within the meaning of the provisions of the Code or regulations thereunder or as set forth in Section 406 of ERISA or the regulations implementing ERISA, Section 4975 of the Code or the regulations thereunder or applicable Similar Laws or the regulations thereunder;
(iii) with respect to any particular Indemnified Person, Claims to the extent resulting from (x) the gross negligence or willful misconduct of such Indemnified Person or a Related Party of such Indemnified Person (other than gross negligence or willful misconduct imputed as a matter of law to such Indemnified Person solely by reason of its interest in the Equipment)Party, or (y) any breach of any covenantcovenant to be performed by such Indemnified Person or a Related Party under any of the Operative Agreements, or the falsity of any representation or warranty of such Indemnified Person or such a Related Party;Party in any of the Operative Agreements or in a document or certificate delivered in connection therewith; 72 Participation Agreement (TRLI 2001-1B)
(iv) Claims to the extent attributable to any transfer by the Lessor of the Equipment or any portion thereof or any transfer by the Owner Participant of all or any portion of its interest in the Trust Estate other than (xA) any such transfer in connection with after a Lease Event of Default Default, (B) the transfer of all or any portion of the exercise of remedies Equipment or any Owner Participant's interest in connection therewith and (y) any such transfer the Equipment to the Lessee Lessee, (C) the transfer of all or its designee in connection with any portion of the Equipment to a purchase or a voluntary termination as contemplated by third party pursuant to Lessee's election to terminate the Lease or Section 6.9 or (zD) any such transfer made of all or any portion of the Equipment pursuant to Section 7.1(m)6.9;
(v) with respect to any particular Indemnified Person that is the Owner Participant or the Owner Trustee in the case of clause (a) below or that is the Loan Participant in the case of clause (b) belowPerson, unless such transfer is required by the terms of the Operative Agreements or occurs during the continuance of a Lease Event of Default, Claims relating to any offer, sale, assignment, transfer or other disposition (voluntary or involuntary)
) (a) in the case of the Owner Participant, of any of its interest in the Beneficial Interest (other than pursuant to Section 6.9 or Section 7.1(m6.9)) , or (b) with respect to the Loan Participant, of all or any portion of the Loan Participant's its interest in the Equipment Notes or the collateral therefor;
(vi) with respect to any particular Indemnified Person, Claims resulting from the imposition of (x) any Lessor's Lien (or other liens not expressly permitted) attributable to such Indemnified Person or a Related Party of or (y) any Lien attributable to such Indemnified PersonPerson or a Related Party not expressly permitted under the Operative Agreements or which such Indemnified Person is required to remove pursuant to the terms of the Operative Agreements;
(vii) with respect to any particular Indemnified Person, Claims to the extent the risk thereof has been expressly assumed by such Indemnified Person in connection with the exercise by such Indemnified Person of any the right of inspection rights granted under Section 6.2 of the Operative DocumentsLease, inspection or restenciling under Section 6.1(c) of the Lease or inspection under Section 13.2 of the Lease;
(viii) Claims relating to any amount that constitutes or (in the case of subclause (D)) is attributable to: (A) principal of, or interest or premium on the Equipment Notes or securities issued by the Pass Through Trusts Certificates;
(except ix) Claims relating to the payment of any amount which constitutes Transaction Costs which the Owner Trustee is obligated to pay pursuant to Section 2.5(a) (other than those that the Lessee may be required to pay under Section 2.5(c) or Section 2.5(e)) or any other amount to the extent such amounts are otherwise indemnified Indemnified Person or a Related Party has expressly agreed to pay such amount without a right of reimbursement, or any Claim payable by any Indemnified Person pursuant to Section 7.2(c)(iv)); any provision of any Operative Agreement that expressly states that such Claim is not subject to indemnification or reimbursement by the Lessee, or any Participation Agreement (BTRLI 2001-1B) Transaction Costs Claim arising out of obligations expressly assumed by the Indemnified Person seeking indemnification or a Related Party;
(without limiting Lessee's obligations under Sections 2.5(cx) and 2.5(e)); (C) Claims relating to any amount that is an ordinary and usual operating or overhead expense of any Indemnified Person (it being understood out-of-pocket expenses of the applicable Indemnified Person; payable to third parties do not constitute "ordinary and usual operating or overhead expenses");
(Dxi) Claims relating to an Indenture Events Event of Default that is not attributable to a Lease Event of Default or a Manager Default; ;
(xii) with respect to the Owner Trustee in its individual and (E) trust capacities, and its Related Indemnitee Group, Claims relating to a failure by on the part of the Owner Trustee, Indenture Trustee or Pass Through Trustee, respectively, to distribute any amounts held by it in accordance with the Operative Agreements; andTrust Agreement any amounts distributable by it thereunder;
(ixxiii) with respect to the Indenture Trustee in its individual and trust capacities, Claims relating to failure on the part of the Indenture Trustee to distribute in accordance with the Indenture any amounts distributable by it thereunder;
(xiv) with respect to the Pass Through Trustee in its individual and trust capacities, Claims relating to failure on the part of the Pass Through Trustee to distribute in accordance with the Pass Through Trust Agreement any amounts distributable by it thereunder;
(xv) Claims relating to the offer, sale or delivery of any Equipment Note or any interest in the Trust Estate;
(xvi) Claims relating to any sale, transfer or holding of the Equipment Notes or Pass Through Certificates being deemed to result in a "prohibited transaction" under ERISA; or
(xvii) Claims relating to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any of the Operative Agreements which amendments, supplements, waivers or consents are not (1) requested by the Lessee TILC or (2) are not specifically required by any applicable law or regulation (other than laws or regulations solely relating to the business of the Lessor, the Indenture Trustee, the Trust Company, the Pass Through Trustee, the Initial Purchasers, the Collateral Agent, the Policy Provider or any Participant) or (3) entered into in connection with, or as a result of, a Lease Default or (4) required pursuant to the terms of the Operative Agreements (including such reasonable expenses incurred in connection with any adjustment pursuant to Section 2.6)Agreements.
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Claims Excluded. The following are excluded from the LesseeTRMI's agreement to indemnify under this Section 7.2:7.4: Participation Agreement (TRLI 2001-1A) 81
(i) Claims with respect to any Unit to the extent attributable to acts or events occurring after (and not attributable to events that have occurred or conditions existing prior to) except (A) in the any case of the consummation by the Lessee of a purchase option where remedies are being exercised under Section 22.1 or 22.3 15 of the Lease or for so long as the occurrence of an Event of Loss with respect Lessor shall be entitled to exercise remedies under such Unit under Section 11 of the Lease15, the later to occur of (x) the payment of all amounts due from the Lessee in connection with any such event and (y) the release of the Lien of the Indenture on such Unit or (B) in all other cases, the last Lessee has assumed any of the obligations with respect to the Equipment Notes under Section 3.6 of the Indenture and the Equipment Notes remain outstanding under the Indenture) the later to occur of (x) with respect to such Unit, the earlier to occur of the termination of the Lease or the expiration of the Lease TermTerm in accordance with the terms thereof, and (y) with respect to each Unit, the return of such Unit to the Lessor in accordance with the terms of the Lease (it being understood that, so long as any Unit is in storage as provided in Section 6.1 6.1(c) of the Lease, the date of return thereof for the purpose of this clause (i) shall be the last day of the Storage Period) and (z) the release of the Lien of the Indenture on such Unit);
(ii) Claims which are Taxes or any loss of tax benefits or increases in tax liability (liability; provided that this clause (ii) shall not preclude a Claim from being paid apply to Taxes necessary to pay Claims on an After-Tax Basis), but not excluding Taxes or any loss of tax benefits or increases in tax liability with respect to any Indemnified Person, or any other person who, together with such Indemnified Person, is treated as one employer for employee benefit plan purposes, as a result of, or in connection with, any "prohibited transaction" within the meaning of the provisions of the Code or regulations thereunder or as set forth in Section 406 of ERISA or the regulations implementing ERISA, Section 4975 of the Code or the regulations thereunder or applicable Similar Laws or the regulations thereunder;
(iii) with respect to any particular Indemnified Person, Claims to the extent resulting from (x) the gross negligence or willful misconduct of such Indemnified Person or a Related Party of such Indemnified Person (other than gross negligence or willful misconduct imputed as a matter of law to such Indemnified Person solely by reason of its interest in the Equipment)Party, or (y) any breach of any covenantcovenant to be performed by such Indemnified Person or a Related Party under any of the Operative Agreements, or the falsity of any representation or warranty of such Indemnified Person or such a Related PartyParty in any of the Operative Agreements or in a document or certificate delivered in connection therewith;
(iv) Claims to the extent attributable to any transfer by the Lessor of the Equipment or any portion thereof or any transfer by the Owner Participant of all or any portion of its interest in the Trust Estate other than (xA) any such transfer in connection with after a Lease Event of Default Default, (B) the transfer of all or any portion of the exercise of remedies Equipment or any Owner Participant's interest in connection therewith and (y) any such transfer the Equipment to the Lessee Lessee, (C) the transfer of all or its designee in connection with any portion of the Equipment to a purchase or a voluntary termination as contemplated by third party pursuant to Lessee's election to terminate the Lease or Section 6.9 or (zD) any such transfer made of all or any portion of the Equipment pursuant to Section 7.1(m)6.9;
(v) with respect to any particular Indemnified Person that is the Owner Participant or the Owner Trustee in the case of clause (a) below or that is the Loan Participant in the case of clause (b) belowPerson, unless such transfer is required by the terms of the Operative Agreements or occurs during the continuance of a Lease Event of Default, Claims Claim relating to any offer, sale, assignment, transfer or other disposition (voluntary or involuntary)
) (a) in the case of the Owner Participant, of any of its interest in the Beneficial Interest (other than pursuant to Section 6.9 or Section 7.1(m6.9)) , or (b) with respect to the Loan Participant, of all or any portion of the Loan Participant's its interest in the Equipment Notes or the collateral therefor;; Participation Agreement (TRLI 2001-1A) 82
(vi) with respect to any particular Indemnified Person, Claims resulting from the imposition of (x) any Lessor's Lien (or other liens not expressly permitted) attributable to such Indemnified Person or a Related Party of or (y) any Lien attributable to such Indemnified PersonPerson or a Related Party not expressly permitted under the Operative Agreements or which such Indemnified Person is required to remove pursuant to the terms of the Operative Agreements;
(vii) with respect to any particular Indemnified Person, Claims to the extent the risk thereof has been expressly assumed by such Indemnified Person in connection with the exercise by such Indemnified Person of any the right of inspection rights granted under Section 6.2 of the Operative DocumentsLease, inspection or restenciling under Section 6.1(c) of the Lease or inspection under Section 13.2 of the Lease;
(viii) Claims relating to any amount that constitutes or (in the case of subclause (D)) is attributable to: (A) principal of, or interest or premium on the Equipment Notes or securities issued by the Pass Through Trusts Certificates;
(except ix) Claims relating to the payment of any amount which constitutes Transaction Costs which the Owner Trustee is obligated to pay pursuant to Section 2.5(a) (other than those that the Lessee may be required to pay under Section 2.5(c) or Section 2.5(e)) or any other amount to the extent such amounts are otherwise indemnified Indemnified Person or a Related Party has expressly agreed to pay such amount without a right of reimbursement, or any Claim payable by any Indemnified Person pursuant to Section 7.2(c)(iv)); any provision of any Operative Agreement that expressly states that such Claim is not subject to indemnification or reimbursement by the Lessee, or any Claim arising out of obligations expressly assumed by the Indemnified Person seeking indemnification or a Related Party;
(Bx) Transaction Costs (without limiting Lessee's obligations under Sections 2.5(c) and 2.5(e)); (C) Claims relating to any amount that is an ordinary and usual operating or overhead expense of any Indemnified Person (it being understood out-of-pocket expenses of the applicable Indemnified Person; payable to third parties do not constitute "ordinary and usual operating or overhead expenses");
(Dxi) Claims relating to an Indenture Events Event of Default that is not attributable to a Lease Event of Default or a Manager Default; ;
(xii) with respect to the Owner Trustee in its individual and (E) trust capacities, and its Related Indemnitee Group, any Claims relating to a failure by on the part of the Owner Trustee, Indenture Trustee or Pass Through Trustee, respectively, to distribute any amounts held by it in accordance with the Operative Agreements; andTrust Agreement any amounts distributable by it thereunder;
(ixxiii) with respect to the Indenture Trustee in its individual and trust capacities, any Claims relating to failure on the part of the Participation Agreement (TRLI 2001-1A) 83 Indenture Trustee to distribute in accordance with the Indenture any amounts distributable by it thereunder;
(xiv) with respect to the Pass Through Trustee in its individual and trust capacities, any Claims relating to failure on the part of the Pass Through Trustee to distribute in accordance with the Pass Through Trust Agreement or Pass Through Trust Supplement any amounts distributable by it thereunder;
(xv) Claims relating to the offer, sale or delivery of any Equipment Note or any interest in the Trust Estate;
(xvi) Claims relating to any sale, transfer or holding of the Equipment Notes or Pass Through Certificates being deemed to result in a "prohibited transaction" under ERISA; or
(xvii) any Claims relating to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any of the Operative Agreements which amendments, supplements, waivers or consents are not (1) requested by the Lessee TRMI or (2) are not specifically required by any applicable law or regulation (other than laws or regulations solely relating to the business of the Lessor, the Indenture Trustee, the Trust Company, the Pass Through Trustee, the Initial Purchasers, the Collateral Agent, the Policy Provider or any Participant) or (3) entered into in connection with, or as a result of, a Lease Default or (4) required pursuant to the terms of the Operative Agreements (including such reasonable expenses incurred in connection with any adjustment pursuant to Section 2.6)Agreements.
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Claims Excluded. The following are excluded from the LesseeTRMI's agreement to indemnify under this Section 7.27.4:
(i) Claims with respect to any Unit to the extent attributable to acts or events occurring after (and not attributable to events that have occurred or conditions existing prior to) except (A) in the any case of the consummation by the Lessee of a purchase option where remedies are being exercised under Section 22.1 or 22.3 15 of the Lease or for so long as the occurrence of an Event of Loss with respect Lessor shall be entitled to exercise remedies under such Unit under Section 11 of the Lease15, the later to occur of (x) the payment of all amounts due from the Lessee in connection with any such event and (y) the release of the Lien of the Indenture on such Unit or (B) in all other cases, the last Lessee has assumed any of the obligations with respect to the Equipment Notes under Section 3.6 of the Indenture and the Equipment Notes remain outstanding under the Indenture) the later to occur of (x) with respect to such Unit, the earlier to occur of the termination of the Lease or the expiration of the Lease TermTerm in accordance with the terms thereof, and (y) with respect to each Unit, the return of such Unit to the Lessor in accordance with the terms of the Lease (it being understood that, so long as any Unit is in storage as provided in Section 6.1 6.1(c) of the Lease, the date of return thereof for the purpose of this clause (i) shall be the last day of the Storage Period) and (z) the release of the Lien of the Indenture on such Unit);
(ii) Claims which are Taxes or any loss of tax benefits or increases in tax liability (liability; provided that this clause (ii) shall not preclude a Claim from being paid apply to Taxes necessary to pay Claims on an After-Tax Basis), but not excluding Taxes or any loss of tax benefits or increases in tax liability with respect to any Indemnified Person, or any other person who, together with such Indemnified Person, is treated as one employer for employee benefit plan purposes, as a result of, or in connection with, any "prohibited transaction" within the meaning of the provisions of the Code or regulations thereunder or as set forth in Section 406 of ERISA or the regulations implementing ERISA, Section 4975 of the Code or the regulations thereunder or applicable Similar Laws or the regulations thereunder;
(iii) with respect to any particular Indemnified Person, Claims to the extent resulting from (x) the gross negligence or willful misconduct of such Indemnified Person or a Related Party of such Indemnified Person (other than gross negligence or willful misconduct imputed as a matter of law to such Indemnified Person solely by reason of its interest in the Equipment)Party, or (y) any breach of any covenantcovenant to be performed by such Indemnified Person or a Related Party under any of the Operative Agreements, or the falsity of any representation or warranty of such Indemnified Person or such a Related PartyParty in any of the Operative Agreements or in a document or certificate delivered in connection therewith;
(iv) Claims to the extent attributable to any transfer by the Lessor of the Equipment or any portion thereof or any transfer by the Owner Participant of all or any portion of its interest in the Trust Estate or Equity Collateral other than (xA) any such transfer in connection with after a Lease Event of Default Default, (B) the transfer of all or any portion of the exercise of remedies Equipment or any Owner Participant's interest in connection therewith and (y) any such transfer the Equipment to the Lessee Lessee, (C) the transfer of all or its designee in connection with any portion of the Equipment to a purchase or a voluntary termination as contemplated by third party pursuant to Lessee's election to terminate the Lease or Section 6.9 or (zD) any such transfer made of all or any portion of the Equipment pursuant to Section 7.1(m)6.9;
(v) with respect to any particular Indemnified Person that is the Owner Participant or the Owner Trustee in the case of clause (a) below or that is the Loan Participant in the case of clause (b) belowPerson, unless such transfer is required by the terms of the Operative Agreements or occurs during the continuance of a Lease Event of Default, Claims Claim relating to any offer, sale, assignment, transfer or other disposition (voluntary or involuntary)
(a) in the case of the Owner Participant, of any of its interest in the Beneficial Interest (other than Participation Agreement (TRLI 2001-1C) pursuant to Section 6.9 6.9) or Section 7.1(m)) Equity Collateral, or (b) with respect to the Loan Participant, of all or any portion of the Loan Participant's its interest in the Equipment Notes or the collateral therefor;
(vi) with respect to any particular Indemnified Person, Claims resulting from the imposition of (x) any Lessor's Lien (or other liens not expressly permitted) attributable to such Indemnified Person or a Related Party of or (y) any Lien attributable to such Indemnified PersonPerson or a Related Party not expressly permitted under the Operative Agreements or which such Indemnified Person is required to remove pursuant to the terms of the Operative Agreements;
(vii) with respect to any particular Indemnified Person, Claims to the extent the risk thereof has been expressly assumed by such Indemnified Person in connection with the exercise by such Indemnified Person of any the right of inspection rights granted under Section 6.2 of the Operative DocumentsLease, inspection or restenciling under Section 6.1(c) of the Lease or inspection under Section 13.2 of the Lease;
(viii) Claims relating to any amount that constitutes or (in the case of subclause (D)) is attributable to: (A) principal of, or interest or premium on the Equipment Notes or securities issued by the Pass Through Trusts Certificates;
(except ix) Claims relating to the payment of any amount which constitutes Transaction Costs which the Owner Trustee is obligated to pay pursuant to Section 2.5(a) (other than those that the Lessee may be required to pay under Section 2.5(c) or Section 2.5(e)) or any other amount to the extent such amounts are otherwise indemnified Indemnified Person or a Related Party has expressly agreed to pay such amount without a right of reimbursement, or any Claim payable by any Indemnified Person pursuant to Section 7.2(c)(iv)); any provision of any Operative Agreement that expressly states that such Claim is not subject to indemnification or reimbursement by the Lessee, or any Claim arising out of obligations expressly assumed by the Indemnified Person seeking indemnification or a Related Party;
(Bx) Transaction Costs (without limiting Lessee's obligations under Sections 2.5(c) and 2.5(e)); (C) Claims relating to any amount that is an ordinary and usual operating or overhead expense of any Indemnified Person (it being understood out-of-pocket expenses of the applicable Indemnified Person; payable to third parties do not constitute "ordinary and usual operating or overhead expenses");
(Dxi) Claims relating to an Indenture Events Event of Default that is not attributable to a Lease Event of Default or a Manager Default; ;
(xii) with respect to the Owner Trustee in its individual and (E) trust capacities, and its Related Indemnitee Group, any Claims relating to a failure by on the part of the Owner Trustee, Indenture Trustee or Pass Through Trustee, respectively, to distribute any amounts held by it in accordance with the Operative Agreements; andTrust Participation Agreement (TRLI 2001-1C) Agreement any amounts distributable by it thereunder;
(ixxiii) with respect to the Indenture Trustee in its individual and trust capacities, any Claims relating to failure on the part of the Indenture Trustee to distribute in accordance with the Indenture any amounts distributable by it thereunder;
(xiv) with respect to the Pass Through Trustee in its individual and trust capacities, any Claims relating to failure on the part of the Pass Through Trustee to distribute in accordance with the Pass Through Trust Agreement or Pass Through Trust Supplement any amounts distributable by it thereunder;
(xv) Claims relating to the offer, sale or delivery of any Equipment Note or any interest in the Trust Estate;
(xvi) Claims relating to any sale, transfer or holding of the Equipment Notes or Pass Through Certificates being deemed to result in a "prohibited transaction" under ERISA; or
(xvii) any Claims relating to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any of the Operative Agreements which amendments, supplements, waivers or consents are not (1) requested by the Lessee TRMI or (2) are not specifically required by any applicable law or regulation (other than laws or regulations solely relating to the business of the Lessor, the Indenture Trustee, the Trust Company, the Pass Through Trustee, the Initial Purchasers, the Collateral Agent, the Policy Provider or any Participant) or (3) entered into in connection with, or as a result of, a Lease Default or (4) required pursuant to the terms of the Operative Agreements (including such reasonable expenses incurred in connection with any adjustment pursuant to Section 2.6)Agreements.
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Claims Excluded. The following are excluded from the LesseeTILC's agreement to indemnify under this Section 7.27.3:
(i) Claims with respect to any Unit to the extent attributable to acts or events occurring after (and not attributable to events that have occurred or conditions existing prior to) except (A) in the any case of the consummation by the Lessee of a purchase option where remedies are being exercised under Section 22.1 or 22.3 15 of the Lease or for so long as the occurrence of an Event of Loss with respect Lessor shall be entitled to exercise remedies under such Unit under Section 11 of the Lease15, the later to occur of (x) the payment of all amounts due from the Lessee in connection with any such event and (y) the release of the Lien of the Indenture on such Unit or (B) in all other cases, the last Lessee has assumed any of the obligations with respect to the Equipment Notes under Section 3.6 of the Indenture and the Equipment Notes remain outstanding under the Indenture) the later to occur of (x) with respect to such Unit, the earlier to occur of the termination of the Lease or the expiration of the Lease TermTerm in accordance with the terms thereof, and (y) with respect to each such Unit, the return of such Unit to the Lessor in accordance with the terms of the Lease (it being understood that, so long as any Unit is in storage as provided in Section 6.1 6.1(c) of the Lease, the date of return thereof for the purpose of this clause (i) shall be the last day of the Storage Period) and (z) the release of the Lien of the Indenture on such Unit);
(ii) Claims which are Taxes or any loss of tax benefits or increases in tax liability (liability; provided that this clause (ii) shall not preclude a Claim from being paid apply to Taxes necessary to pay Claims on an After-Tax Basis), but not excluding Taxes or any loss of tax benefits or increases in tax liability with respect to any Indemnified Person, or any other person who, together with such Indemnified Person, is treated as one employer for employee benefit plan purposes, as a result of, or in connection with, any "prohibited transaction" within the meaning of the provisions of the Code or regulations thereunder or as set forth in Section 406 of ERISA or the regulations implementing ERISA, Section 4975 of the Code or the regulations thereunder or applicable Similar Laws or the regulations thereunder;
(iii) with respect to any particular Indemnified Person, Claims to the extent resulting from (x) the gross negligence or willful misconduct of such Indemnified Person or a Related Party of such Indemnified Person (other than gross negligence or willful misconduct imputed as a matter of law to such Indemnified Person solely by reason of its interest in the Equipment)Party, or (y) any breach of any covenantcovenant to be performed by such Indemnified Person or a Related Party under any of the Operative Agreements, or the falsity of any representation or warranty of such Indemnified Person or such a Related PartyParty in any of the Operative Agreements or in a document or certificate delivered in connection therewith;
(iv) Claims to the extent attributable to any transfer by the Lessor of the Equipment or any portion thereof or any transfer by the Owner Participant of all or any portion of its interest in the Trust Estate or Equity Collateral other than (xA) any such transfer in connection with after a Lease Event of Default Default, (B) the transfer of all or any portion of the exercise of remedies Equipment or any Owner Participant's interest in connection therewith and (y) any such transfer the Equipment to the Lessee Lessee, (C) the transfer of all or its designee in connection with any portion of the Equipment to a purchase or a voluntary termination as contemplated by third party pursuant to Lessee's election to terminate the Lease or Section 6.9 or (zD) any such transfer made of all or any portion of the Equipment pursuant to Section 7.1(m);6.9; Participation Agreement (TRLI 2001-1C) 82
(v) with respect to any particular Indemnified Person that is the Owner Participant or the Owner Trustee in the case of clause (a) below or that is the Loan Participant in the case of clause (b) belowPerson, unless such transfer is required by the terms of the Operative Agreements or occurs during the continuance of a Lease Event of Default, Claims relating to any offer, sale, assignment, transfer or other disposition (voluntary or involuntary)
(a) in the case of the Owner Participant, of any of its interest in the Beneficial Interest (other than pursuant to Section 6.9 6.9) or Section 7.1(m)) the Equity Collateral, or (b) with respect to the Loan Participant, of all or any portion of the Loan Participant's its interest in the Equipment Notes or the collateral therefor;
(vi) with respect to any particular Indemnified Person, Claims resulting from the imposition of (x) any Lessor's Lien (or other liens not expressly permitted) attributable to such Indemnified Person or a Related Party of or (y) any Lien attributable to such Indemnified PersonPerson or a Related Party not expressly permitted under the Operative Agreements or which such Indemnified Person is required to remove pursuant to the terms of the Operative Agreements;
(vii) with respect to any particular Indemnified Person, Claims to the extent the risk thereof has been expressly assumed by such Indemnified Person in connection with the exercise by such Indemnified Person of any the right of inspection rights granted under Section 6.2 of the Operative DocumentsLease, inspection or restenciling under Section 6.1(c) of the Lease or inspection under Section 13.2 of the Lease;
(viii) Claims relating to any amount that constitutes or (in the case of subclause (D)) is attributable to: (A) principal of, or interest or premium on the Equipment Notes or securities issued by the Pass Through Trusts Certificates;
(except ix) Claims relating to the payment of any amount which constitutes Transaction Costs which the Owner Trustee is obligated to pay pursuant to Section 2.5(a) (other than those that the Lessee may be required to pay under Section 2.5(c) or Section 2.5(e)) or any other amount to the extent such amounts are otherwise indemnified Indemnified Person or a Related Party has expressly agreed to pay such amount without a right of reimbursement, or any Claim payable by any Indemnified Person pursuant to Section 7.2(c)(iv)); any provision of any Operative Agreement that expressly states that such Claim is not subject to indemnification or reimbursement by the Lessee, or any Claim arising out of obligations expressly assumed by the Indemnified Person seeking indemnification or a Related Party;
(Bx) Transaction Costs (without limiting Lessee's obligations under Sections 2.5(c) and 2.5(e)); (C) Claims relating to any amount that is an ordinary and usual operating or overhead expense of any Indemnified Person (it being understood out-of-pocket expenses of the applicable Indemnified Personpayable to third parties do not constitute "ordinary and usual operating or overhead expenses"); Participation Agreement (DTRLI 2001-1C)
(xi) Claims relating to an Indenture Events Event of Default that is not attributable to a Lease Event of Default or a Manager Default; ;
(xii) with respect to the Owner Trustee in its individual and (E) trust capacities, and its Related Indemnitee Group, Claims relating to a failure by on the part of the Owner Trustee, Indenture Trustee or Pass Through Trustee, respectively, to distribute any amounts held by it in accordance with the Operative Agreements; andTrust Agreement any amounts distributable by it thereunder;
(ixxiii) with respect to the Indenture Trustee in its individual and trust capacities, Claims relating to failure on the part of the Indenture Trustee to distribute in accordance with the Indenture any amounts distributable by it thereunder;
(xiv) with respect to the Pass Through Trustee in its individual and trust capacities, Claims relating to failure on the part of the Pass Through Trustee to distribute in accordance with the Pass Through Trust Agreement any amounts distributable by it thereunder;
(xv) Claims relating to the offer, sale or delivery of any Equipment Note or any interest in the Trust Estate;
(xvi) Claims relating to any sale, transfer or holding of the Equipment Notes or Pass Through Certificates being deemed to result in a "prohibited transaction" under ERISA; or
(xvii) Claims relating to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any of the Operative Agreements which amendments, supplements, waivers or consents are not (1) requested by the Lessee TILC or (2) are not specifically required by any applicable law or regulation (other than laws or regulations solely relating to the business of the Lessor, the Indenture Trustee, the Trust Company, the Pass Through Trustee, the Initial Purchasers, the Collateral Agent, the Policy Provider or any Participant) or (3) entered into in connection with, or as a result of, a Lease Default or (4) required pursuant to the terms of the Operative Agreements (including such reasonable expenses incurred in connection with any adjustment pursuant to Section 2.6)Agreements.
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Claims Excluded. The following are excluded from the Lessee's agreement to indemnify under this Section 7.2:
(i) Claims with respect to any Unit to the extent attributable to acts or events occurring after (and not attributable to events that have occurred or conditions existing prior to) (A) in the case of the consummation by the Lessee of a purchase option under Section 22.1 or 22.3 of the Lease or the occurrence of an Event of Loss with respect to such Unit under Section 11 of the Lease, the later to occur of (x) the payment of all amounts due from the Lessee in connection with any such event and (y) the release of the Lien of the Indenture on such Unit or (B) in all other cases, the last to occur of (x) with respect to such Unit, the earlier to occur of the 70 termination of the Lease or the expiration of the Lease Term, (y) with respect to each Unit, the return of such Unit to the Lessor in accordance with the terms of the Lease (it being understood that, so long as any Unit is in storage as provided in Section 6.1 of the Lease, the date of return thereof for the purpose of this clause (i) shall be the last day of the Storage Period) and (z) the release of the Lien of the Indenture on such Unit;
(ii) Claims which are Taxes or any loss of tax benefits or increases in tax liability (provided that this clause (ii) shall not preclude a Claim from being paid on an After-Tax Basis), but not excluding Taxes or any loss of tax benefits or increases in tax liability with respect to any Indemnified Person, or any other person who, together with such Indemnified Person, is treated as one employer for employee benefit plan purposes, as a result of, or in connection with, any "prohibited transaction" within the meaning of the provisions of the Code or regulations thereunder or as set forth in Section 406 of ERISA or the regulations implementing ERISA, Section 4975 of the Code or the regulations thereunder or applicable Similar Laws or the regulations thereunder;
(iii) with respect to any particular Indemnified Person, Claims resulting from the gross negligence or willful misconduct of such Indemnified Person or a Related Party of such Indemnified Person (other than gross negligence or willful misconduct imputed as a matter of law to such Indemnified Person solely by reason of its interest in the Equipment), or any breach of any covenant, or falsity of any representation or warranty of such Indemnified Person or such Related Party;
(iv) Claims to the extent attributable to any transfer by the Lessor of the Equipment or any portion thereof or any transfer by the Owner Participant of all or any portion of its interest in the Trust Estate other than (x) any such transfer in connection with a Lease Event of Default or the exercise of remedies in connection therewith and (y) any such transfer to the Lessee or its designee in connection with a purchase or a voluntary termination as contemplated by the Lease or Section 6.9 or (z) any such transfer made pursuant to Section 7.1(m);
(v) with respect to any particular Indemnified Person that is the Owner Participant or the Owner Trustee in the case of clause (a) below or that is the Loan Participant in the case of clause (b) below, unless such transfer is required by the terms of the Operative Agreements or occurs during the continuance of a Lease Event of Default, Claims relating to any offer, sale, assignment, transfer or other disposition (voluntary or involuntary)
(a) in the case of the Owner Participant, of any of its interest in the Beneficial Interest (other than pursuant to Section 6.9 or Section 7.1(m)) or (b) with respect to the Loan Participant, of all or any portion of the Loan Participant's interest in the Equipment Notes or the collateral therefor;
(vi) with respect to any particular Indemnified Person, Claims resulting from the imposition of any Lessor's Lien (or other liens not expressly permitted) attributable to such Indemnified Person or a Related Party of such Indemnified Person;
(vii) with respect to any particular Indemnified Person, Claims to the extent the risk thereof has been expressly assumed by such Indemnified Person in connection with the exercise by such Indemnified Person of any inspection rights under the Operative Documents;
(viii) Claims relating to any amount that constitutes or (in the case of subclause (D)) is attributable to: (A) principal of, or interest or premium on the Equipment Notes or securities issued by the Pass Through Trusts (except to the extent such amounts are otherwise indemnified pursuant to Section 7.2(c)(iv)); (B) Transaction Costs (without limiting Lessee's obligations under Sections 2.5(c) and 2.5(e)); (C) ordinary and usual operating or overhead expenses of the applicable Indemnified Person; (D) Indenture Events of Default not attributable to a Lease Event of Default or a Manager Default; and (E) failure by Owner Trustee, Indenture Trustee or Pass Through Trustee, respectively, to distribute any amounts held by it in accordance with the Operative Agreements; and
(ix) Claims relating to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any of the Operative Agreements which are not (1) requested by the Lessee or (2) required by any applicable law or regulation (other than laws or regulations solely relating to the business of the Lessor, the Indenture Trustee, the Trust Company, the Pass Through Trustee, the Initial Purchasers, the Collateral Agent, the Policy Provider or any Participant) or (3) entered into in connection with, or as a result of, a Lease Default or (4) required pursuant to the terms of the Operative Agreements (including such reasonable expenses incurred in connection with any adjustment pursuant to Section 2.6).than
Appears in 1 contract
Claims Excluded. The following are excluded from the Lessee's agreement to indemnify under this Section 7.2:
(i) Claims with respect to any Unit to the extent attributable to acts or events occurring after (and not attributable to events that have occurred or conditions existing prior to) (A) in the case of the consummation by the Lessee of a purchase option under Section 22.1 or 22.3 of the Lease or the occurrence of an Event of Loss with respect to such Unit under Section 11 of the Lease, the later to occur of (x) the payment of all amounts due from the Lessee in connection with any such event and (y) the release of the Lien of the Indenture on such Unit or (B) in all other cases, the last to occur of (x) with respect to such Unit, the earlier to occur of the termination of the Lease or the expiration of the Lease Term, (y) with respect to each Unit, the return of such Unit to the Lessor in accordance with the terms of the Lease (it being understood that, so long as any Unit is in storage as provided in Section 6.1 of the Lease, the date of return thereof for the purpose of this clause (i) shall be the last day of the Storage Period) and (z) the release of the Lien of the Indenture on such Unit;
(ii) Claims which are Taxes or any loss of tax benefits or increases in tax liability (provided that this clause (ii) shall not preclude a Claim from being paid on an After-Tax Basis), but not excluding Taxes or any loss of tax benefits or increases in tax liability with respect to any Indemnified Person, or any other person who, together with such Indemnified Person, is treated as one employer for employee benefit plan purposes, as a result of, or in connection with, any "prohibited transaction" within the meaning of the provisions of the Code or regulations thereunder or as set forth in Section 406 of ERISA or the regulations implementing ERISA, Section 4975 of the Code or the regulations thereunder or applicable Similar Laws or the regulations thereunder;
(iii) with respect to any particular Indemnified Person, Claims resulting from the gross negligence or willful misconduct of such Indemnified Person or a Related Party of such Indemnified Person (other than gross negligence or willful misconduct imputed as a matter of law to such Indemnified Person solely by reason of its interest in the Equipment), or any breach of any covenant, or falsity of any representation or warranty of such Indemnified Person or such Related Party;
(iv) Claims to the extent attributable to any transfer by the Lessor of the Equipment or any portion thereof or any transfer by the Owner Participant of all or any portion of its interest in the Trust Estate other than (x) any such transfer in connection with a Lease Event of Default or the exercise of remedies in connection therewith and (y) any such transfer to the Lessee or its designee in connection with a purchase or a voluntary termination as contemplated by the Lease or Section 6.9 or (z) any such transfer made pursuant to Section 7.1(m);
(v) with respect to any particular Indemnified Person that is the Owner Participant or the Owner Trustee in the case of clause (a) below or that is the Loan Participant in the case of clause (b) below, unless such transfer is required by the terms of the Operative Agreements or occurs during the continuance of a Lease Event of Default, Claims relating to any offer, sale, assignment, transfer or other disposition (voluntary or involuntary)
(a) in the case of the Owner Participant, of any of its interest in the Beneficial Interest (other than pursuant to Section 6.9 or Section 7.1(m)) or (b) with respect to the Loan Participant, of all or any portion of the Loan Participant's interest in the Equipment Notes or the collateral therefor;
(vi) with respect to any particular Indemnified Person, Claims resulting from the imposition of any Lessor's Lien (or other liens not expressly permitted) attributable to such Indemnified Person or a Related Party of such Indemnified Person;
(vii) with respect to any particular Indemnified Person, Claims to the extent the risk thereof has been expressly assumed by such Indemnified Person in connection with the exercise by such Indemnified Person of any inspection rights under the Operative Documents;
(viii) Claims relating to any amount that constitutes or (in the case of subclause (D)) is attributable to: (A) principal of, or interest or premium on the Equipment Notes or securities issued by the Pass Through Trusts (except to the extent such amounts are otherwise indemnified pursuant to Section 7.2(c)(iv)); (B) Transaction Costs (without limiting Lessee's obligations under Sections 2.5(c) and 2.5(e)); (C) ordinary and usual operating or overhead expenses of the applicable Indemnified Person; (D) Indenture Events of Default not attributable to a Lease Event of Default or a Manager Default; and (E) failure by Owner Trustee, Indenture Trustee or Pass Through Trustee, respectively, to distribute any amounts held by it in accordance with the Operative Agreements; and
(ix) Claims relating to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any of the Operative Agreements which are not (1) requested by the Lessee or (2) required by any applicable law or regulation (other than laws or regulations solely relating to the business of the Lessor, the Indenture Trustee, the Trust Company, the Pass Through Trustee, the Initial Purchasers, the Collateral Agent, the Policy Provider or any Participant) or (3) entered into in connection with, or as a result of, a Lease Default or (4) required pursuant to the terms of the Operative Agreements (including such reasonable expenses incurred in connection with any adjustment pursuant to Section 2.6).than
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