Claims Excluded. The following are excluded from TRMI's agreement to indemnify under this Section 7.4: (i) Claims with respect to any Unit to the extent attributable to acts or events occurring after (except (A) in any case where remedies are being exercised under Section 15 of the Lease for so long as the Lessor shall be entitled to exercise remedies under such Section 15, or (B) the 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 Term 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(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); (ii) Claims which are Taxes or any loss of tax benefits or increases in tax liability; provided that this clause (ii) shall not apply to Taxes necessary to pay Claims on an After-Tax Basis; (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, or (y) any breach of any covenant 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 a Related Party 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 (A) any transfer after a Lease Event of Default, (B) the transfer of all or any portion of the Equipment or any Owner Participant's interest in the Equipment to the Lessee, (C) the transfer of all or any portion of the Equipment to a third party pursuant to Lessee's election to terminate the Lease or (D) any transfer of all or any portion of the Equipment pursuant to Section 6.9; 77 Participation Agreement (TRLI 2001-1B) (v) with respect to any particular Indemnified Person, unless such transfer is required by the terms of the Operative Agreements or occurs during the continuance of a Lease Event of Default, 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 (b) with respect to the Loan Participant, of all or any portion of 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 attributable to such Indemnified Person or a Related Party or (y) any Lien attributable to such Indemnified Person 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 the right of inspection granted under Section 6.2 of the Lease, 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 principal of, or interest or premium on the Equipment Notes or the Pass Through Certificates; (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 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 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; (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 Manager Default; Participation Agreement (TRLI 2001-1B) (xii) with respect to the Owner Trustee in its individual and trust capacities, and its Related Indemnitee Group, any Claims relating to a failure on the part of the Owner Trustee to distribute in accordance with the Trust Agreement any amounts distributable by it thereunder; (xiii) 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 requested by TRMI or are not specifically required by the Operative Agreements.
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Claims Excluded. The following are excluded from TRMIthe Lessee's agreement to indemnify under this Section 7.47.2:
(i) Claims with respect to any Unit to the extent attributable to acts or events occurring after (except (A) in any case where remedies are being exercised under Section 15 of the Lease for so long as the Lessor shall be entitled to exercise remedies under such Section 15, or (B) the 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 Term 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(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);
(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 liabilityliability whether or not the Lessee is required to indemnify a Indemnified Person elsewhere in the Operative Agreements; provided that this clause (ii) shall not apply to Taxes necessary to pay Claims on an After-Tax Basis;
(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, or (y) any breach of any covenant 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 67 Participation Agreement (TRLI 2001-1B) Person or a Related Party 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 (A) any transfer after a Lease Event of Default, (B) the transfer of all or any portion of the Equipment or any Owner Participant's interest in the Equipment to the Lessee, (C) the transfer of all or any portion of the Equipment to a third party pursuant to Lessee's election to terminate the Lease or (D) any transfer of all or any portion of the Equipment pursuant to Section 6.9; 77 Participation Agreement (TRLI 2001-1B);
(v) with respect to any particular Indemnified Person, unless such transfer is required by the terms of the Operative Agreements or occurs during the continuance of a Lease Event of Default, Claim 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 (b) with respect to the Loan Participant, of all or any portion of its 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 (x) any Lessor's Lien attributable to such Indemnified Person or a Related Party or (y) any Lien attributable to such Indemnified Person 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 the right of inspection granted under Section 6.2 of the Lease, 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 principal of, or interest or premium on the Equipment Notes or the Pass Through Certificates;
(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 Indemnified Person or a Related Party has expressly agreed to pay such amount Participation Agreement (TRLI 2001-1B) without a right of reimbursement, or 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, or 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 Manager Lease Event of Default; Participation Agreement (TRLI 2001-1B);
(xii) with respect to the Owner Trustee in its individual and trust capacities, and its Related Indemnitee Group, any Claims relating to a failure on the part of the Owner Trustee to distribute in accordance with the Trust Agreement any amounts distributable by it thereunder;
(xiii) 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 without affecting Lessee's obligations under Section 2.5(b), 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 requested by TRMI Lessee or are not specifically required by the Operative Agreements.
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Claims Excluded. The following are excluded from TRMITILC's agreement to indemnify under this Section 7.47.3:
(i) Claims with respect to any Unit to the extent attributable to acts or events occurring after (except (A) in any case where remedies are being exercised under Section 15 of the Lease for so long as the Lessor shall be entitled to exercise remedies under such Section 15, or (B) the 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 Term 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(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);
(ii) Claims which are Taxes or any loss of tax benefits or increases in tax liability; provided that this clause (ii) shall not apply to Taxes necessary to pay Claims on an After-Tax Basis;
(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, or (y) any breach of any covenant 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 a Related 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 (A) any transfer after a Lease Event of Default, (B) the transfer of all or any portion of the Equipment or any Owner Participant's interest in the Equipment to the Lessee, (C) the transfer of all or any portion of the Equipment to a third party pursuant to Lessee's election to terminate the Lease or (D) any transfer of all or any portion of the Equipment pursuant to Section 6.9; 77 Participation Agreement (TRLI 2001-1B);
(v) with respect to any particular Indemnified Person, unless such transfer is required by the terms of the Operative Agreements or occurs during the continuance of a Lease Event of Default, Claim 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 (b) with respect to the Loan Participant, of all or any portion of 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 attributable to such Indemnified Person or a Related Party or (y) any Lien attributable to such Indemnified Person 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 the right of inspection granted under Section 6.2 of the Lease, 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 principal of, or interest or premium on the Equipment Notes or the Pass Through Certificates;
(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 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 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 (TRLI 2001-1B) 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 Manager Default; Participation Agreement (TRLI 2001-1B);
(xii) with respect to the Owner Trustee in its individual and trust capacities, and its Related Indemnitee Group, any Claims relating to a failure on the part of the Owner Trustee to distribute in accordance with the Trust Agreement any amounts distributable by it thereunder;
(xiii) 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 requested by TRMI TILC or are not specifically required by the Operative Agreements.
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Claims Excluded. The following are excluded from TRMITILC's agreement to indemnify under this Section 7.47.3:
(i) Claims with respect to any Unit to the extent attributable to acts or events occurring after (except (A) in any case where remedies are being exercised under Section 15 of the Lease for so long as the Lessor shall be entitled to exercise remedies under such Section 15, or (B) the 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 Term 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(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);
(ii) Claims which are Taxes or any loss of tax benefits or increases in tax liability; provided that this clause (ii) shall not apply to Taxes necessary to pay Claims on an After-Tax Basis;
(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, or (y) any breach of any covenant 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 a Related 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 (A) any transfer after a Lease Event of Default, (B) the transfer of all or any portion of the Equipment or any Owner Participant's interest in the Equipment to the Lessee, (C) the transfer of all or any portion of the Equipment to a third party pursuant to Lessee's election to terminate the Lease or (D) any transfer of all or any portion of the Equipment pursuant to Section 6.9; 77 Participation Agreement (TRLI 2001-1B);
(v) with respect to any particular Indemnified Person, unless such transfer is required by the terms of the Operative Agreements or occurs during the continuance of a Lease Event of Default, Claim 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 (b) with respect to the Loan Participant, of all or any portion of 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 attributable to such Indemnified Person or a Related Party or (y) any Lien attributable to such Indemnified Person 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 the right of inspection granted under Section 6.2 of the Lease, 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 principal of, or interest or premium on the Equipment Notes or the Pass Through Certificates;
(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 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 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;
(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 Manager Default; Participation Agreement (TRLI 2001-1B)
(xii) with respect to the Owner Trustee in its individual and trust capacities, and its Related Indemnitee Group, any Claims relating to a failure on the part of the Owner Trustee to distribute in accordance with the Trust Agreement any amounts distributable by it thereunder;
(xiii) 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 requested by TRMI or are not specifically required by the Operative Agreements.
Appears in 1 contract
Claims Excluded. The following are excluded from TRMIthe Lessee's agreement to indemnify under this Section 7.47.2:
(i) Claims with respect to any Unit to the extent attributable to acts or events occurring after (except (A) in any case where remedies are being exercised under Section 15 of the Lease for so long as the Lessor shall be entitled to exercise remedies under such Section 15, or (B) the 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 Term 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(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);
(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 liabilityliability whether or not the Lessee is required to indemnify a Indemnified Person elsewhere in the Operative Agreements; provided that this clause (ii) shall not apply to Taxes necessary to pay Claims on an After-Tax Basis;
(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, or (y) any breach of any covenant 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 67 Participation Agreement (TRLI 2001-1B) Person or a Related Party 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 (A) any transfer after a Lease Event of Default, (B) the transfer of all or any portion of the Equipment or any Owner Participant's interest in the Equipment to the Lessee, (C) the transfer of all or any portion of the Equipment to a third party pursuant to Lessee's election to terminate the Lease or (D) any transfer of all or any portion of the Equipment pursuant to Section 6.9; 77 Participation Agreement (TRLI 2001-1B)to
(v) with respect to any particular Indemnified Person, unless such transfer is required by the terms of the Operative Agreements or occurs during the continuance of a Lease Event of Default, Claim 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 (b) with respect to the Loan Participant, of all or any portion of 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 attributable to such Indemnified Person or a Related Party or (y) any Lien attributable to such Indemnified Person 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 the right of inspection granted under Section 6.2 of the Lease, 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 principal of, or interest or premium on the Equipment Notes or the Pass Through Certificates;
(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 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 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;
(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 Manager Default; Participation Agreement (TRLI 2001-1B)
(xii) with respect to the Owner Trustee in its individual and trust capacities, and its Related Indemnitee Group, any Claims relating to a failure on the part of the Owner Trustee to distribute in accordance with the Trust Agreement any amounts distributable by it thereunder;
(xiii) 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 requested by TRMI or are not specifically required by the Operative Agreements.
Appears in 1 contract
Claims Excluded. The following are excluded from TRMI's the agreement to indemnify under this Section 7.47.2:
(i) Claims with respect to any Unit to the extent attributable to acts or events occurring in connection with and after (except and not attributable to events having occurred or conditions existing prior to) (A) in any the case where remedies are being exercised of the consummation by the Lessee of a purchase option with respect to all of the Units under Section 15 22 of the Lease for so long as the Lessor shall be entitled to exercise remedies under such Section 15Lease, or the payment of Termination Value by the Lessee in respect of Proposed Terminated Units under Section 10.2 of the Lease, or the occurrence of an Event of Loss with respect to all of the Units for which Stipulated Loss Value is paid under Section 11 of the Lease, the payment of all amounts due from the Lessee in connection with any such event, and (B) the Lessee has assumed any of the obligations in all other cases, with respect to such Unit, the Equipment Notes under Section 3.6 of the Indenture and the Equipment Notes remain outstanding under the Indenture) the later 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 in accordance with the terms thereof, and (y) with respect to each Unit, the return of such Unit to the Lessor Owner Trustee 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(c) 6.3 of the Lease, the date of return thereof for the purpose of this clause Clause (ii)(B)(y) shall be the end of the last day of such storage period), and (z) the Storage Period)payment in full of the principal of, Premium, if any, and interest on the Notes and all other amounts due and payable to or for the account of the Indenture Trustee and the Note holders under the Indenture and the other Operative Agreements;
(ii) Claims which are Taxes or any loss of tax benefits or increases in tax liability; provided that this clause (ii) shall not apply to Taxes other than amounts necessary to pay indemnify Claims on an After-Tax Basis), or any cost or expense of contesting any such Taxes whether or not the Lessee is required to indemnify therefor under Section 7.1 hereof or the Tax Indemnity Agreement, the Lessee's entire obligation with respect to Claims which are Taxes under Section 4975 of the Code and to Taxes and losses of tax benefits being fully set out in such Section 7.1 or the Tax Indemnity Agreement;
(iii) with respect to any particular Indemnified Person and only as to such Indemnified Person, Claims to the extent resulting from (x) attributable to the gross negligence or willful wilful misconduct (other than any gross negligence or wilful misconduct imputed as a matter of law to such Indemnified Person solely by reason of its participation in the transactions and entering into the Operative Agreements, its interest in the Units or a Related Partythe acts or omissions of the Lessee or Bayer) of, or (y) the falsity or inaccuracy of any representation or warranty of, or any breach of any covenant to be performed by of, 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 a Related Party in any of the Operative Agreements or in a document or certificate delivered in connection therewith;Person; and
(iv) Claims attributable to (A) any voluntary transfer, assignment or other disposition ( Transfer ) by such Indemnified Person subsequent to the extent attributable to applicable Purchase Date, of any transfer by the Lessor interest in some or all of the Equipment or Units, any portion thereof or any transfer by of the Owner Participant of all or any portion of property constituting the Trust Estate, the Lease, its interest in the Trust Estate Estate, the Notes, the Construction Advances or any other interests or obligations arising under the Operative Agreements other than (Ax) any transfer Transfers which occur as a result of the exercise of remedies after a Lease Event of DefaultDefault has occurred and is continuing, (By) the transfer of all or any portion of the Equipment or any Owner Participant's interest in the Equipment to the Lessee, (C) the transfer of all or any portion of the Equipment to a third party Transfer pursuant to Lessee's election to terminate the Lease or (D) any transfer of all or any portion of the Equipment pursuant to Section 6.9; 77 Participation Agreement (TRLI 2001-1B)
(v) with respect to any particular Indemnified Person, unless such transfer is required by the terms of the Lease at the request or option of the Lessee (including the Lessee's exercise of the option granted pursuant to Section 22 of the Lease), or (z) any Claim under ERISA that would not have been made if the representation made by the Owner Participant in Section 3.4(i) had been true and correct when made or (B) any involuntary Transfer by such Indemnified Person of any interest in the Units, any of the property constituting the Trust Estate, the Lease, the Notes, the Construction Advances or any interests or obligations arising under the Operative Agreements resulting from any bankruptcy or occurs during other proceeding for relief of debtors in which such Indemnified Person is the debtor or any foreclosure by a creditor of the Indemnified Person other than (y) any such Transfer following the occurrence and continuance of a Lease Event of Default, or (z) any Claim relating to any offer, sale, assignment, transfer or other disposition (voluntary or involuntary) (a) in under ERISA that would not have been made if the case of representation made by the Owner Participant, of any of its interest Participant in the Beneficial Interest (other than pursuant to Section 6.9), or (b3.4(i) with respect to the Loan Participant, of all or any portion of 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 attributable to such Indemnified Person or a Related Party or (y) any Lien attributable to such Indemnified Person 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 had been expressly assumed by such Indemnified Person in connection with the exercise by such Indemnified Person of the right of inspection granted under Section 6.2 of the Lease, 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 principal of, or interest or premium on the Equipment Notes or the Pass Through Certificates;
(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 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 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;
(x) Claims relating to any amount that is an ordinary true 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 Manager Default; Participation Agreement (TRLI 2001-1B)
(xii) with respect to the Owner Trustee in its individual and trust capacities, and its Related Indemnitee Group, any Claims relating to a failure on the part of the Owner Trustee to distribute in accordance with the Trust Agreement any amounts distributable by it thereunder;
(xiii) 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 requested by TRMI or are not specifically required by the Operative Agreementscorrect when made.
Appears in 1 contract
Claims Excluded. The following are excluded from TRMIOld Dominion's agreement to indemnify any Indemnitee under this Section 7.48.1:
(i) Claims with respect to any Unit to the extent Claim attributable to acts acts, omissions or events occurring after (except (A) in any case where remedies are being exercised under Section 15 of the Lease for so long as the Lessor shall be entitled to exercise remedies under such Section 15, or (B) the 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 earlier of (x) with respect to such Unit, the earlier to occur return of the Facility Owner's Unit 2 Interest in full compliance of Section 5 of the Operating Equipment Agreement and Section 5 of the Operating Foundation Agreement, if applicable, or (y) the expiration or earlier termination of the Lease or Operating Equipment Agreement and the expiration of the Lease Term Operating Foundation Agreement in accordance compliance with the terms thereof, and (y) with respect to each Unit, thereof under circumstances not requiring the return of such the Facility Owner's Unit 2 Interest, unless and to the Lessor extent such Claim is attributable to actions, omissions or events occurring in accordance connection with the terms exercise of remedies pursuant to Section 17 of the Lease (it being understood that, so long as any Unit is in storage as provided in Operating Equipment Agreement or Section 6.1(c) 17 of the LeaseOperating Foundation Agreement, as the date case may be, following the occurrence, and during the continuance, of return thereof for the purpose an Event of this clause (i) shall be the last day of the Storage Period)Default thereunder;
(ii) Claims which are Taxes without limiting Old Dominion's obligations under paragraph (d) below, any Claim that is a Tax, or any loss is a cost of tax benefits contesting a Tax imposed on, or increases in tax liability; provided that this clause asserted against, the Indemnitee or an Affiliate, whether or not Old Dominion is required to indemnify therefor under Section 8.2 hereof or the Tax Indemnity Agreement (iiother than an indemnity payable to the Lender or the Agent under Section 8.1(a)(x) shall not apply to Taxes necessary to pay Claims on an After-Tax Basishereof);
(iii) with respect to any particular Indemnified PersonIndemnitee, Claims any Claim attributable to the extent resulting from (x) the gross negligence or willful wilful misconduct of such Indemnified Person Indemnitee or a Party Related Party, or thereto unless attributable to (ya) any breach by Old Dominion or its Affiliates of any covenant to be performed by such Indemnified Person or a Related Party under any of the Operative Agreementscovenant, or the falsity of any representation or warranty of such Indemnified Person or a Related Party contained in any Transaction Document or any Clover 1 Document or (b) any breach by any other Transaction Party or its Affiliates of the Operative Agreements any covenant, representation or warranty contained in a document any Transaction Document or certificate delivered in connection therewithany Clover 1 Document;
(iv) Claims as to any Indemnitee, any Claim attributable to the extent noncompliance of such Indemnitee or any Party Related thereto, with any of the terms of, or any misrepresentation or breach of warranty by such Indemnitee or any Party Related thereto contained in any Operative Document by which such Indemnitee is bound or any breach by such Indemnitee or any Party Related thereto of any covenant contained in any Transaction Document by which such Indemnitee is bound unless attributable to (a) any transfer breach by the Lessor Old Dominion or its Affiliates of the Equipment any covenant, representation or warranty contained in any Transaction Document or (b) any breach by any other Transaction Party or its Affiliates of any covenant, representation or warranty contained in any Transaction Document 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 (A) any transfer after a Lease Event of Default, (B) the transfer of all or any portion of the Equipment or any Owner Participant's interest in the Equipment to the Lessee, (C) the transfer of all or any portion of the Equipment to a third party pursuant to Lessee's election to terminate the Lease or (D) any transfer of all or any portion of the Equipment pursuant to Section 6.9; 77 Participation Agreement (TRLI 2001-1B)Clover 1 Document;
(v) with respect as to any particular Indemnified PersonIndemnitee or Party Related thereto, unless such transfer is required by any Claim attributable to the terms of the Operative Agreements or occurs during the continuance of a Lease Event of Default, Claim relating to any offer, sale, assignment, transfer or other disposition (voluntary or involuntary) by or on behalf of such Indemnitee of its interest (awhether direct or beneficial) in any Operative Document or in the Facility Owner's Unit 2 Interest or the Trust Estate, other than a transfer by such Indemnitee (A) required by the terms of an Operative Document, (B) the entering into of a Power Sales Agreement and the Control Documents, or (C) any transfer during the continuance of an Event of Default;
(vi) except in the case of the Owner Participant, of any of its interest in Lender or the Beneficial Interest (other than pursuant to Section 6.9), or (b) with respect to the Loan Participant, of all Agent or any portion of its interest in the Equipment Notes Party Related thereto, any Claim constituting or the collateral therefor;
(vi) with respect to any particular Indemnified Person, Claims resulting arising from the imposition of (x) any Lessora Facility Owner's Lien attributable to such Indemnified Person or a Related Party or (y) any Lien attributable to such Indemnified Person 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 AgreementsLien;
(vii) with respect except in the case of the Trust Company (in its individual capacity), any Lender or the Agent or any Party Related to any particular Indemnified Personthereof, 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 the right of inspection granted under Section 6.2 of the Lease, inspection any claim constituting or restenciling under Section 6.1(c) of the Lease or inspection under Section 13.2 of the Leasearising from an Owner Participant's Lien;
(viii) Claims relating to any amount that constitutes principal of, or interest or premium on the Equipment Notes or the Pass Through Certificates;
(ix) Claims Claim relating to the payment of any amount which constitutes Transaction Costs which the Owner Trustee or the Owner Participant is obligated to pay pursuant to Section 2.5(a2.4(a) (other than those that the Lessee may be required to pay under Section 2.5(c) or Section 2.5(e)) hereof or any other amount to the extent such Indemnified Person Indemnitee or a any Party Related Party thereto has expressly agreed in any Operative Document to pay such amount without a express right of reimbursement, or 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, or any Claim arising out of obligations expressly assumed by the Indemnified Person seeking indemnification or a Related Party;; and
(xix) Claims relating to any amount that is an ordinary and usual operating or overhead expense in the case 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 Manager Default; Participation Agreement (TRLI 2001-1B)
(xii) with respect to the Owner Trustee in its individual and trust capacities, and its Related Indemnitee Groupthe Owner Participant, any Claims relating to a failure on the part of the Facility Owner Trustee to distribute in accordance with the Trust Agreement any amounts received and distributable by it thereunder;
(xiii) 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 requested by TRMI or are not specifically required by the Operative Agreements.
Appears in 1 contract
Samples: Participation Agreement (Old Dominion Electric Cooperative)
Claims Excluded. The following are excluded from TRMI's agreement to indemnify under this Section 7.4:
(i) Claims with respect to any Unit to the extent attributable to acts or events occurring after (except (A) in any case where remedies are being exercised under Section 15 of the Lease for so long as the Lessor shall be entitled to exercise remedies under such Section 15, or (B) the 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 Term 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(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);
(ii) Claims which are Taxes or any loss of tax benefits or increases in tax liability; provided that this clause (ii) shall not apply to Taxes necessary to pay Claims on an After-Tax Basis;
(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, or (y) any breach of any covenant 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 a Related Party 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 (A) any transfer after a Lease Event of Default, (B) the transfer of all or any portion of the Equipment or any Owner Participant's interest in the Equipment to the Lessee, (C) the transfer of all or any portion of the Equipment to a third party pursuant to Lessee's election to terminate the Lease or (D) any transfer of all or any portion of the Equipment pursuant to Section 6.9; 77 Participation Agreement (TRLI 2001-1B)
(v) with respect to any particular Indemnified Person, unless such transfer is required by the terms of the Operative Agreements or occurs during the continuance of a Lease Event of Default, 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 (b) with respect to the Loan Participant, of all or any portion of 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 attributable to such Indemnified Person or a Related Party or (y) any Lien attributable to such Indemnified Person 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 the right of inspection granted under Section 6.2 of the Lease, 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 principal of, or interest or premium on the Equipment Notes or the Pass Through Certificates;
(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 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 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;
(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 Manager Default; Participation Agreement (TRLI 2001-1B)
(xii) with respect to the Owner Trustee in its individual and trust capacities, and its Related Indemnitee Group, any Claims relating to a failure on the part of the Owner Trustee to distribute in accordance with the Trust Agreement any amounts distributable by it thereunder;
(xiii) 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 requested by TRMI or are not specifically required by the Operative Agreements.
Appears in 1 contract
Claims Excluded. The following are excluded from TRMIthe Lessee's --------------- agreement to indemnify under this Section 7.47.2:
(i) Claims with respect to any Unit to the extent attributable to acts or events occurring after (except (A) in any case where remedies are being exercised under Section 15 of the Lease for so long as the Lessor shall be entitled to exercise remedies under such Section 15, or (B) the 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 Term 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(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);; [Participation Agreement (GARC II 98-A)]
(ii) except in the case of (vi) above, Claims which are Taxes Taxes, whether or any loss of tax benefits not the Lessee is required to indemnify therefor under Section 7.1 hereof or increases in tax liability; provided that this clause (ii) shall not apply to Taxes necessary to pay Claims on an After-under the Tax BasisIndemnity Agreement;
(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 PartyPerson, or (y) any breach of any covenant 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 a Related Party in any of the Operative Agreements or in a document or certificate delivered in connection therewith;
(iv) Claims any Claim 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 (A) any transfer after a Lease Event of Default, (B) the transfer of all or any portion of the Equipment or any Owner Participant's interest in the Equipment to the Lessee, (C) the transfer of all or any portion of the Equipment to a third party pursuant to Lessee's election to terminate the Lease or (D) any transfer of all or any portion of the Equipment pursuant to Section 6.9; 77 Participation Agreement (TRLI 2001-1B);
(v) with respect to any particular Indemnified Person, unless such transfer is required by any Claim resulting from the terms of the Operative Agreements or occurs during the continuance of a Lease Event of Default, Claim relating to any offer, sale, assignment, transfer or other disposition (voluntary or involuntary) (a) in the case of the Owner Participant, imposition of any of its interest in the Beneficial Interest (other than pursuant Lessor's Lien attributable to Section 6.9), or (b) with respect to the Loan Participant, of all or any portion of its interest in the Equipment Notes or the collateral therefor;such Indemnified Person; or
(vi) with respect to any particular Indemnified Person, Claims resulting from the imposition of (x) any Lessor's Lien attributable to such Indemnified Person or a Related Party or (y) any Lien attributable to such Indemnified Person 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 PersonClaim, 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 the right of inspection granted under Section 6.2 of the Lease, 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 principal of, or interest or premium on the Equipment Notes or the Pass Through Certificates;
(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 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 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;
(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 Manager Default; Participation Agreement (TRLI 2001-1B)
(xii) with respect to the Owner Trustee in its individual and trust capacities, and its Related Indemnitee Group, any Claims relating to a failure on the part of the Owner Trustee to distribute in accordance with the Trust Agreement any amounts distributable by it thereunder;
(xiii) 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 requested by TRMI or are not specifically required by the Operative Agreements.
Appears in 1 contract
Samples: Participation Agreement (General American Railcar Corp Ii)
Claims Excluded. The following are excluded from TRMI's agreement to indemnify under this Section 7.4:: Participation Agreement (TRLI 2001-1A)
(i) Claims with respect to any Unit to the extent attributable to acts or events occurring after (except (A) in any case where remedies are being exercised under Section 15 of the Lease for so long as the Lessor shall be entitled to exercise remedies under such Section 15, or (B) the 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 Term 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(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);
(ii) Claims which are Taxes or any loss of tax benefits or increases in tax liability; provided that this clause (ii) shall not apply to Taxes necessary to pay Claims on an After-Tax Basis;
(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, or (y) any breach of any covenant 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 a Related Party 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 (A) any transfer after a Lease Event of Default, (B) the transfer of all or any portion of the Equipment or any Owner Participant's interest in the Equipment to the Lessee, (C) the transfer of all or any portion of the Equipment to a third party pursuant to Lessee's election to terminate the Lease or (D) any transfer of all or any portion of the Equipment pursuant to Section 6.9; 77 Participation Agreement (TRLI 2001-1B);
(v) with respect to any particular Indemnified Person, unless such transfer is required by the terms of the Operative Agreements or occurs during the continuance of a Lease Event of Default, 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 (b) with respect to the Loan Participant, of all or any portion of 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 attributable to such Indemnified Person or a Related Party or (y) any Lien attributable to such Indemnified Person 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 the right of inspection granted under Section 6.2 of the Lease, 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 principal of, or interest or premium on the Equipment Notes or the Pass Through Certificates;
(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 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 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;
(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 Manager Default; Participation Agreement (TRLI 2001-1B)
(xii) with respect to the Owner Trustee in its individual and trust capacities, and its Related Indemnitee Group, any Claims relating to a failure on the part of the Owner Trustee to distribute in accordance with the Trust Agreement any amounts distributable by it thereunder;
(xiii) 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 requested by TRMI or are not specifically required by the Operative Agreements.
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