Common use of Indemnification Indemnification Clause in Contracts

Indemnification Indemnification. Whether or not the transactions contemplated hereby are consummated, the Lenders agree, severally but not jointly and subject to the provisions of Section 11.06(h), to indemnify the Agent and the Collateral Agent (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their respective Commitments (or if the Commitments have expired or been terminated, in accordance with the respective principal amounts of outstanding Loans of the Lenders), from and against any and all Indemnified Liabilities which may at any time (including without limitation at any time following payment in full of the Obligations) be imposed on, incurred by or asserted against the Agent or the Collateral Agent in each of their respective capacities as such in any way relating to or arising out of this Agreement or the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Agent or Collateral Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment to the Agent or Collateral Agent of any portion of such Indemnified Liabilities resulting from such Person’s gross negligence or willful misconduct; provided, however, that no action taken in accordance with the directions of the Required Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section. If any indemnity furnished to the Agent or Collateral Agent for any purpose shall, in the opinion of the Agent or Collateral Agent, as the case may be, be insufficient or become impaired, each of the Agent or Collateral Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished. Without limitation of the foregoing, each Lender shall reimburse each of the Agent and Collateral Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including fees and disbursements of counsel) incurred by each of the Agent and Collateral Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Agent or Collateral Agent is not reimbursed for such expenses by or on behalf of the Borrower. The agreements in this Section shall survive the payment of the Obligations and all other obligations and amounts payable hereunder and under the other Loan Documents. SECTION 10.08

Indemnification Indemnification. Whether or not the transactions contemplated hereby are consummated, the Lenders agree, severally but not jointly and subject In addition to the provisions other rights of Section 11.06(h), to indemnify the Agent Servicer and the Collateral Agent Participants hereunder, Sponsor hereby agrees to protect, indemnify and save harmless the Servicer, each Participant, and the officers, directors, shareholders, employees, agents and representatives thereof (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their respective Commitments (or if the Commitments have expired or been terminated, in accordance with the respective principal amounts of outstanding Loans of the Lenders), each an “Indemnified Party”) from and against any and all Indemnified Liabilities which may at liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs (including, without limitation, reasonable attorney fees and costs actually incurred), expenses or disbursements of any time kind or nature whatsoever, whether direct, indirect, consequential or incidental, with respect to or in connection with or arising out of (i) the execution and delivery of this Agreement, any other Operative Document or any agreement or instrument contemplated hereby or thereby, including without limitation at any time following payment in full of limitation, the Obligations) be imposed onLoan Documents, incurred the performance by the parties hereto or asserted against the Agent or the Collateral Agent in each thereto of their respective capacities as such in obligations hereunder or thereunder or the consummation of the transactions contemplated hereby, (ii) the making or administration of the Loan Commitments, the Loans or any way relating of them, including any violation of federal or state usury or other laws; provided that with respect to or arising out clauses (i) and (ii), Sponsor shall have no obligation to indemnify the Servicer and all Participants with respect to legal fees and expenses for more than one (1) counsel’s reasonable fees and expenses, (iii) the enforcement, performance and administration of this Agreement or the other Loan Documents or any documents contemplated by powers granted to the Servicer hereunder or referred under any Loan Documents, (iv) any misrepresentation of the Sponsor hereunder, (v) any matter arising pursuant to herein any Environmental Laws as a result of the Collateral or therein (vi) any actual or the transactions contemplated hereby prospective claim, litigation, investigation or thereby or any action taken or omitted by the Agent or Collateral Agent under or in connection with proceeding relating to any of the foregoing; provided that no Lender shall be liable for , whether based on contract, tort or any other theory, whether or not the payment Indemnified Party is a named party thereto, except to the Agent extent that such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or Collateral Agent disbursements are determined by a court of any portion of such Indemnified Liabilities resulting competent jurisdiction by final and nonappealable judgment to have resulted from such Person’s gross negligence or willful misconduct; provided, however, that no action taken in accordance with the directions of the Required Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section. If such Indemnified Party or arise solely from the nonpayment of any indemnity furnished Loan Indebtedness notwithstanding the performance by Sponsor of all of its obligations under the Operative Documents relating to the Agent or Collateral Agent for any purpose shall, in the opinion of the Agent or Collateral Agent, as the case may be, be insufficient or become impaired, each of the Agent or Collateral Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnishedLoan Indebtedness. Without limitation limiting the generality of the foregoing, each Lender shall reimburse each and separate and apart from any obligation of the Agent Sponsor pursuant to Article X, Sponsor agrees to indemnify and Collateral Agent upon hold harmless each Indemnified Party from and against, and on demand for its ratable share will pay or reimburse any Indemnified Party for, any and all (i) liabilities arising from a breach of any costs representation or out-of-pocket expenses warranty made by Sponsor hereunder (including fees and disbursements whether or not Sponsor’s obligations under Article X have been satisfied), (ii) any breach by Sponsor of counselits agreements with the Borrowers, (iii) incurred any overadvance to any Borrower caused by each the transfer of ACH transfer instructions from the Xxxxx’s Proprietary System to the Servicer by Sponsor resulting in aggregate advances to such Borrower in excess of the Agent Loan Commitment to such Borrower, and Collateral Agent in connection (iv) any breach by Sponsor of the terms of its MicroACH Service Agreement with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, Servicer or any document contemplated failure by or referred Sponsor to herein, to the extent that the Agent or Collateral Agent is not reimbursed for maintain such expenses by or on behalf of the Borroweragreement in full force and effect. The agreements in this Section This indemnity shall survive the payment termination of the Obligations and all other obligations and amounts payable hereunder and under the other Loan Documents. SECTION 10.08this Agreement.

Indemnification Indemnification. Whether () Subject to subsections (b) and (c) below, notwithstanding any provision in this Agreement or not any Collateral Agreement limiting or negating the transactions contemplated hereby are consummatedCompany's liability, the Lenders agreeCompany shall protect, severally but not jointly indemnify, save harmless and subject to the provisions defend Purchasers and each present and former registered holder (or beneficial holder through participation or otherwise) of Section 11.06(h), to indemnify the Agent a Note and the Collateral Agent (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their respective Commitments past, present and future officers, directors, shareholders, partners, employees, agents, contractors, tenants and representatives (or if individually, an "Indemnified Party," and collectively, the Commitments have expired or been terminated, in accordance with the respective principal amounts of outstanding Loans of the Lenders), "Indemnified Parties") from and against any and all Indemnified Liabilities which may at any time (including without limitation at any time following payment in full of the Obligations) be Environmental Damages imposed onupon, suffered or incurred by or asserted against the Agent any Indemnified Party or the Collateral Agent in each of their respective capacities as such Mortgaged Properties arising in any way relating to or arising out of this Agreement or the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Agent or Collateral Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment to the Agent or Collateral Agent of any portion of such Indemnified Liabilities resulting from such Person’s gross negligence or willful misconduct; provided, however, that no action taken in accordance with the directions of the Required Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section. If any indemnity furnished to the Agent or Collateral Agent for any purpose shall, in the opinion of the Agent or Collateral Agent, as the case may be, be insufficient or become impaired, each of the Agent or Collateral Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished. Without limitation of the foregoing, each Lender shall reimburse each of the Agent and Collateral Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including fees and disbursements of counsel) incurred by each of the Agent and Collateral Agent manner in connection with the preparationexistence of an Environmental Condition at the Mortgaged Properties or the occurrence of any Environmental Activity at the Mortgaged Properties, executionwhether arising, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) ofoccurring, or legal advice in respect existence during or prior to the Company's ownership or operation of the Mortgaged Properties, whether arising, occurring, or in existence prior to the issuance of the Notes or at any time thereafter, whether arising, occurring, or in existence before, during or after enforcement of the rights and remedies of Purchaser or responsibilities under, this Agreement, any other Loan Documentregistered holder of a Note upon default and whether or not the Company is responsible therefor, including, without limitation, the violation of Environmental Laws, or any document contemplated by representations, warranties or referred to covenants contained herein, any imposition by any governmental authority of any lien or so-called "super priority lien" upon the Mortgaged Properties, cleanup costs, liability for personal injury or property damage or damage to the extent environment and any fines, penalties and punitive damages with respect thereto. An Indemnified Party may elect to conduct its own defense through counsel of its own choice, and the Company agrees to pay the reasonable fees and expenses of such counsel for conducting such defense but only if an Indemnified Party determines in good faith that the Agent or Collateral Agent is not reimbursed for such expenses conduct of its defense by or on behalf of the BorrowerCompany could be materially prejudicial to the Indemnified Party's interests. The agreements in this Section shall survive the payment of the Obligations and all other obligations and amounts payable hereunder and under the other Loan Documents. SECTION 10.08THESE PROVISIONS ARE INTENDED TO INDEMNIFY THE INDEMNIFIED PARTIES AGAINST (i) THE RESULTS OF THEIR OWN NEGLIGENCE AND (ii) ANY STRICT LIABILITY IMPOSED ON THE INDEMNIFIED PARTIES.

Indemnification Indemnification. Whether or not the transactions contemplated hereby are consummated, the Lenders agreeFacility Parties, severally but not jointly and subject severally, agree to indemnify, save and hold harmless the Agent, the Collateral Agent, each Lender, each other Protected Party and their respective Affiliates, directors, officers, employees, counsel, agents and attorneys-in-fact (collectively the “Indemnitees”) from and against (and without duplication of amounts payable or the provisions which relate to such payment under the other provisions of Section 11.06(h)the Loan Documents): (i) any and all claims, to indemnify demands, actions or causes of action that are asserted against any Indemnitee by any Person (other than the Agent and Agent, the Collateral Agent (or any Lender) relating directly or indirectly to the extent not reimbursed by the Borrower and without limiting the obligation a claim, demand, action or cause of the Borrower to do so)action that such Person asserts or may assert against any Facility Party, ratably according to any Affiliate of any Facility Party or any of their respective Commitments officers or directors; (or if the Commitments have expired or been terminated, in accordance with the respective principal amounts of outstanding Loans of the Lenders), from and against ii) any and all Indemnified Liabilities which claims, demands, actions or causes of action that may at any time (including without limitation at any time following payment in full repayment of the Obligations) be imposed on, incurred by Obligations and the resignation or asserted against removal of the Agent or the Collateral Agent or the replacement of any Lender) be asserted or imposed against any Indemnitee, arising out of or relating to, the Loan Documents, any predecessor Loan Documents, the Commitments, the use of or contemplated use of the proceeds of any Loan, or the relationship of any Facility Party, the Agent, the Collateral Agent and the Lenders under this Agreement or any other Loan Document; (iii) any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, suits, judgments, costs and expenses of any kind, including, without limitation, the reasonable fees and disbursements of counsel, which may be incurred by, imposed on or asserted against such Indemnitee in connection with any administrative or investigative proceeding by any Governmental Authority arising out of or related to a claim, demand, action or cause of action described in clause (i) or (ii) above; (iv) any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, suits, judgments, costs and expenses of any kind, including, without limitation, the reasonable fees and disbursements of counsel, which may be incurred by, imposed on or asserted against such Indemnitee in connection with any Loan Document, Lease Document, other Transaction Document or any document contemplated hereby or thereby and payments made pursuant hereto or thereto or any transaction contemplated hereby or thereby or the exercise of rights and remedies hereunder or thereunder, any breach by any Facility Party of any Transaction Document or Lease Document or a Lessee of any Lease Document, (v) any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, suits, judgments, costs and expenses of any kind, including, without limitation, the reasonable fees and disbursements of counsel, which may be incurred by, imposed on or asserted against such Indemnitee in connection with any Railcar, any Part or the Borrower’s acquisition or ownership of, or the selection, design, financing, lease, control, operation, condition, location, storage, modification, repair, sale, use, maintenance, possession, registration, delivery, nondelivery, transportation, transfer or disposition of, any Railcar or Part; (vi) any liability arising under or in respect of any Environmental Law, in each case relating to any Railcar or the use, operation or ownership thereof, whether by any Facility Party, any Lessee or any other Person; (vii) any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, suits, judgments, 747656567 17557858 134 Fifth Amended and Restated Warehouse Loan Agreement costs and expenses of their respective capacities as any kind, including, without limitation, the reasonable fees and disbursements of counsel, which may be incurred by, imposed on or asserted against such Indemnitee in connection with any investigation or administrative or judicial proceeding (whether or not such Indemnitee shall be designated a party thereto) brought or threatened relating to or arising out of any Collateral Document or in any other way connected with the enforcement of any of the terms of, or the presentation of any rights under, or in any way relating to or arising out of this Agreement the manufacture, ownership, ordering, purchasing, delivery, control, acceptance, lease, financing, possession, operation, condition, sale, return or other disposition or use of the Collateral (including, without limitation, intent or other defects, whether or not discoverable), the violation of any laws of any country, state or other governmental body or unit, or any tort (including, without limitation, any claims, arising or imposed under the doctrine of strict liability, or for or on account of injury to or the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Agent or Collateral Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment to the Agent or Collateral Agent death of any portion of such Indemnified Liabilities resulting from such Person’s gross negligence or willful misconduct; provided, however, that no action taken in accordance with the directions of the Required Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section. If Person (including any indemnity furnished to the Agent or Collateral Agent for any purpose shall, in the opinion of the Agent or Collateral Agent, as the case may be, be insufficient or become impaired, each of the Agent or Collateral Agent may call for additional indemnity and ceaseIndemnitiesIndemnitees)), or not commenceproperty damage or contract claim; and (viii) any and all liabilities (including liabilities under indemnities), to do the acts indemnified against until such additional indemnity is furnished. Without limitation of the foregoinglosses, each Lender shall reimburse each of the Agent and Collateral Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including fees and disbursements of counsel) incurred by each that any Indemnitee suffers or incurs as a result of the Agent and Collateral Agent assertion of any foregoing claim, demand, action, cause of action or proceeding, or as a result of the preparation of any defense in connection with the preparationany foregoing claim, executiondemand, deliveryaction, administrationcause of action or proceeding, modificationin all cases, amendment and whether or enforcement (whether through negotiationsnot an Indemnitee is a party to such claim, legal proceedings or otherwise) ofdemand, action, cause of action, or legal advice Proceedingproceeding (all the foregoing, collectively; the “Indemnified Liabilities”). THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY OR CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY INDEMNITEE; provided that no Indemnitee shall be entitled to indemnification for any claim caused by its own gross negligence or willful misconduct and provided further, that no Indemnitee shall be entitled to indemnification for any claim arising solely out of (i) the bankruptcy, insolvency or other financial inability of one or more Lessees to make payments under a related Lease or (ii) the decline in respect market value of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to hereina Portfolio Railcar, to the extent that not attributable to the Agent failure of a Facility Party to perform an obligation with respect to such Portfolio Railcar under a Transaction Document. In the case of an investigation, litigation or Collateral Agent is not reimbursed for such expenses by or on behalf of other proceeding to which the Borrower. The agreements indemnity in this Section 11.05 applies, such indemnity shall survive be effective whether or not such investigation, litigation or proceeding is brought by any Facility Party, their respective directors, shareholders or creditors or an Indemnitee or any other Person or any Indemnitee is otherwise a party thereto and whether or not the payment transactions contemplated hereby are consummated. Each Facility Party agrees not to assert any claim against the Agent, the Collateral Agent, any Lender, any other Protected Party, any of their Affiliates or any of their respective directors, officers, employees, attorneys, agents and advisers, on any theory of liability, for special, indirect, consequential or punitive damages arising out of or otherwise relating to the Loan Documents, any of the Obligations and all transactions contemplated herein or therein or the actual or proposed use of the proceeds of the Loans. Without prejudice to the survival of any other obligations and amounts payable agreement of the Facility Parties hereunder and under the other Loan Documents, the agreements and obligations of the Facility Parties contained in this Section 11.05 shall survive the repayment of the Loans and other obligations under the Loan Documents and the termination of the Commitments hereunder. SECTION 10.08The Facility Parties shall, no later than 20 days following demand, reimburse any Indemnitee for any Indemnified Liability referred to above or, upon request from any Indemnitee, 747656567 17557858 135 Fifth Amended and Restated Warehouse Loan Agreement

Indemnification Indemnification. Whether (a) Subject to Section 12.1, after Closing, Seller shall indemnify and hold harmless Purchaser and any Person directly or not the transactions contemplated hereby are consummatedindirectly controlling or controlled by Purchaser, the Lenders agree, severally but not jointly and subject to the provisions of Section 11.06(h), to indemnify the Agent and the Collateral Agent (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their respective Commitments (or if the Commitments have expired or been terminateddirectors, in accordance with the respective principal amounts of outstanding Loans of the Lenders)officers, employees and agents, from and against any and all Indemnified Liabilities which may at any time (including without limitation at any time following payment in full of the Obligations) be imposed on, Losses asserted against or incurred by or asserted against Purchaser to the Agent or the Collateral Agent in each of their respective capacities as such in any way relating to or extent arising out of or resulting from the following: (i) any breach of any representation or warranty made by Seller in this Agreement or (disregarding, in each case other than in the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Agent or Collateral Agent under or in connection with any case of the foregoing; provided that no Lender shall be liable for the payment to the Agent or Collateral Agent of any portion of such Indemnified Liabilities resulting from such Person’s gross negligence or willful misconduct; providedSection 5.14, however, that no action taken in accordance with the directions of the Required Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of determining the amount of any Loss (but not for purposes of determining whether there has been a breach), any qualification on any such representation or warranty as to “materiality,” “in all material respects,” “Material Adverse Effect” or similar materiality qualifications); (ii) any breach of any covenant or agreement to be performed by Seller pursuant to this Section. If Agreement; (iii) any indemnity furnished Excluded Taxes; (iv) any Excluded Liability; or (v) any responsibility, obligation, duty, legal action, administrative or judicial proceeding, claim, penalty or liability arising out of Seller’s ownership or operation prior to the Agent or Collateral Agent for any purpose shall, in the opinion Effective Time of the Agent business represented by the Branches and the Assets. (b) Subject to Section 12.1, after Closing, Purchaser shall indemnify and hold harmless Seller and any Person directly or Collateral Agentindirectly controlling or controlled by Seller, as the case may beand their respective directors, be insufficient officers, employees and agents, from and against any and all Losses asserted against or become impaired, each of the Agent or Collateral Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished. Without limitation of the foregoing, each Lender shall reimburse each of the Agent and Collateral Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including fees and disbursements of counsel) incurred by each of the Agent and Collateral Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, Seller to the extent that arising out of or resulting from the Agent following: (i) any breach of any representation or Collateral Agent is not reimbursed for such expenses warranty made by or on behalf of the Borrower. The agreements Purchaser in this Section shall survive Agreement (disregarding, in each case, for purposes of determining the payment amount of the Obligations and any Loss (but not for purposes of determining whether there has been a breach), any qualification on any such representation or warranty as to “materiality,” “in all other obligations and amounts payable hereunder and under the other Loan Documents. SECTION 10.08material respects,” “Material Adverse Effect” or similar materiality qualifications);