Common use of Seller Indemnification of the Trust and the Trustee Clause in Contracts

Seller Indemnification of the Trust and the Trustee. The Seller shall indemnify and hold harmless the Trust, for the benefit of the Certificateholders and the other Beneficiaries, and the Trustee, from and against any loss, liability, expense, damage or injury suffered or sustained by reason of any acts, omissions or alleged acts or omissions arising out of activities of the Trust or the Trustee pursuant to this Agreement, including any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim; provided, however, that the Seller shall not indemnify the Trust or the Trustee if such acts, omissions or alleged acts or omissions constitute fraud, gross negligence, breach of fiduciary duty or willful misconduct by the Trustee; and provided, further, that the Seller shall not indemnify the Trust, the Trustee or the Certificateholders or any other Beneficiaries for any liabilities, cost or expense of the Trust with respect to any action taken by the Trustee at the request of any such Certificateholders or other Beneficiaries to the extent the Trustee is indemnified by such Certificateholders or other Beneficiaries with respect to such action nor with respect to any Federal, state or local income or franchise taxes (or any interest or penalties with respect thereto) required to be paid by the Trust or any Certificateholder or other Beneficiary in connection herewith to any taxing authority. Subject to Section 7.01, any indemnification pursuant to this Section shall only be from (i) the excess of the Seller's Interest for any date of determination over the Required Participation Amount as of such date and (ii) any other assets of the Seller not pledged to third parties or otherwise encumbered in a manner permitted by the Seller's Certificate of Incorporation and shall only be made after payment in full of any amounts that the Seller is obligated to deposit in the Collection Account pursuant to this Agreement. Any indemnification under this Article VII shall survive the termination of this Agreement.

Seller Indemnification of the Trust and the Trustee. The Discover Bank on behalf of the Holder of the Seller Certificate shall indemnify and hold harmless the Trust, for the benefit of the Certificateholders Trust and the other Beneficiaries, and the Trustee, Trustee from and against any loss, liability, expense, damage or injury suffered or sustained by reason of any acts, omissions or alleged acts or omissions arising out of activities of the Sellers with respect to the Trust, the Trust or the Trustee pursuant to this AgreementAgreement or any Series Supplement, including but not limited to any judgment, award, settlement, reasonable attorneys' ’ fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim; provided, however, that Discover Bank on behalf of the Holder of the Seller Certificate shall not indemnify the Trust or the Trustee if such acts, omissions or alleged acts or omissions constitute fraud, gross negligence, breach of fiduciary duty or willful misconduct by the Trustee; and provided, further, that Discover Bank on behalf of the Holder of the Seller Certificate shall not indemnify the Trust, the Trustee Trust or the Investor Certificateholders or any other Beneficiaries for any liabilities, cost costs or expense expenses of the Trust with respect to any action taken by the Trustee at the request of any such the Investor Certificateholders; and provided, further, that Discover Bank on behalf of the Holder of the Seller Certificate shall not indemnify the Trust or the Investor Certificateholders or other Beneficiaries to the extent the Trustee is indemnified by such Certificateholders or other Beneficiaries with respect to such action nor with respect to any Federalfederal, state or local income or franchise taxes (or any interest or penalties with respect thereto) required to be paid by the Trust or any Certificateholder or other Beneficiary the Investor Certificateholders in connection herewith to any taxing authority, which taxes shall be the sole obligation of the Trust or the Investor Certificateholders. Subject to Section 7.01, any Any such indemnification pursuant to this Section shall only be from assets of the Sellers, shall be subordinate to the security interest of the Trust in the Receivables and Interchange and shall not constitute a claim against any Seller in excess of the lesser of (i) the excess of the such Seller's Interest for any date of determination over the Required Participation Amount as of ’s assets available to pay such date and claim or (ii) any other assets the amount of such claim multiplied by a fraction the Seller not pledged to third parties or otherwise encumbered in a manner permitted by numerator of which is the Seller's Certificate aggregate amount of Incorporation and shall only be made after payment in full of any amounts that the Seller is obligated to deposit Principal Receivables in the Collection Account pursuant to this AgreementTrust which were originated by such Seller and the denominator of which is the aggregate amount of Principal Receivables in the Trust. Any indemnification The obligations under this Article VII Section shall survive the termination of this Agreementthe Trust and the resignation or removal of the Trustee.

Seller Indemnification of the Trust and the Trustee. The Seller shall indemnify and hold harmless the Trust, for the benefit of the Certificateholders and the other Beneficiaries, and the Trustee, from and against any loss, liability, expense, damage or injury suffered or sustained by reason of any acts, omissions or alleged acts or omissions arising out of activities of the Trust or the Trustee pursuant to this Agreement, including any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim; provided, however, that the Seller shall not indemnify the Trust or the Trustee if such acts, omissions or alleged acts or omissions constitute fraud, gross negligence, breach of fiduciary duty or willful wilful misconduct by the Trustee; and provided, further, provided further that the Seller shall not indemnify the Trust, the Trustee or the Certificateholders or any other Beneficiaries for any liabilities, cost or expense of the Trust with respect to any action taken by the Trustee at the request of any such Certificateholders or other Beneficiaries to the extent the Trustee is fully indemnified by such Certificateholders or other Beneficiaries with respect to such action nor and such action is inconsistent with their rights hereunder or with respect to any Federal, state or local income or franchise taxes (or any interest or penalties with respect thereto) required to be paid by the Trust or any Certificateholder or other Beneficiary in connection herewith to any taxing authority. Subject to Section 7.017.1, any indemnification pursuant to this Section shall only be from (i) the excess of the Seller's Interest for any date of determination over the Required Participation Amount as of such date and (ii) any other assets of the Seller not pledged to third parties or otherwise encumbered in a manner permitted by the Seller's Certificate agreement of Incorporation limited partnership and shall only be made after payment in full of any amounts that the Seller is obligated to deposit in the Collection Account pursuant to this Agreement. Any indemnification under this Article VII shall survive the resignation or removal of the Trustee and the termination of this Agreement.

Seller Indemnification of the Trust and the Trustee. The Discover Bank on behalf of the Holder of the Seller Certificate shall indemnify and hold harmless the Trust, for the benefit of the Certificateholders Trust and the other Beneficiaries, and the Trustee, Trustee from and against any loss, liability, expense, damage or injury suffered or sustained by reason of any acts, omissions or alleged acts or omissions arising out of activities of the Sellers with respect to the Trust, the Trust or the Trustee pursuant to this AgreementAgreement or any Series Supplement, including but not limited to any judgment, award, settlement, reasonable attorneys' ’ fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim; provided, however, that Discover Bank on behalf of the Holder of the Seller Certificate shall not indemnify the Trust or the Trustee if such acts, omissions or alleged acts or omissions constitute fraud, gross negligence, breach of fiduciary duty or willful misconduct by the Trustee; and provided, further, that Discover Bank on behalf of the Holder of the Seller Certificate shall not indemnify the Trust, the Trustee Trust or the Investor Certificateholders or any other Beneficiaries for any liabilities, cost costs or expense expenses of the Trust with respect to any action taken by the Trustee at the request of any such the Investor Certificateholders; and provided, further, that Discover Bank on behalf of the Holder of the Seller Certificate shall not indemnify the Trust or the Investor Certificateholders or other Beneficiaries to the extent the Trustee is indemnified by such Certificateholders or other Beneficiaries with respect to such action nor with respect 63 CH\1159205.11 to any Federalfederal, state or local income or franchise taxes (or any interest or penalties with respect thereto) required to be paid by the Trust or any Certificateholder or other Beneficiary the Investor Certificateholders in connection herewith to any taxing authority, which taxes shall be the sole obligation of the Trust or the Investor Certificateholders. Subject to Section 7.01, any Any such indemnification pursuant to this Section shall only be from assets of the Sellers, shall be subordinate to the security interest of the Trust in the Receivables and Interchange and shall not constitute a claim against any Seller in excess of the lesser of (i) the excess of the such Seller's Interest for any date of determination over the Required Participation Amount as of ’s assets available to pay such date and claim or (ii) any other assets the amount of such claim multiplied by a fraction the Seller not pledged to third parties or otherwise encumbered in a manner permitted by numerator of which is the Seller's Certificate aggregate amount of Incorporation and shall only be made after payment in full of any amounts that the Seller is obligated to deposit Principal Receivables in the Collection Account pursuant to this AgreementTrust which were originated by such Seller and the denominator of which is the aggregate amount of Principal Receivables in the Trust. Any indemnification The obligations under this Article VII Section shall survive the termination of this Agreementthe Trust and the resignation or removal of the Trustee.

Seller Indemnification of the Trust and the Trustee. The --------------------------------------------------- Seller shall indemnify and hold harmless the Trust, for the benefit of the Certificateholders and the other Beneficiaries, and the Trustee, from and against any loss, liability, expense, damage or injury suffered or sustained by reason of any acts, omissions or alleged acts or omissions arising out of activities of the Trust or the Trustee pursuant to this Agreement, including any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim; provided, however, that the Seller shall not -------- ------- indemnify the Trust or the Trustee if such acts, omissions or alleged acts or omissions constitute fraud, gross negligence, breach of fiduciary duty or willful wilful misconduct by the Trustee; and provided, further, provided further that the Seller shall not ---------------- indemnify the Trust, the Trustee or the Certificateholders or any other Beneficiaries for any liabilities, cost or expense of the Trust with respect to any action taken by the Trustee at the request of any such Certificateholders or other Beneficiaries to the extent the 77 Trustee is fully indemnified by such Certificateholders or other Beneficiaries with respect to such action nor and such action is inconsistent with their rights hereunder or with respect to any Federal, state or local income or franchise taxes (or any interest or penalties with respect thereto) required to be paid by the Trust or any Certificateholder or other Beneficiary in connection herewith to any taxing authority. Subject to Section 7.017.1, any indemnification pursuant to this Section shall only be from (i) the excess of the Seller's Interest for any date of determination over the Required Participation Amount as of such date and (ii) any other assets of the Seller not pledged to third parties or otherwise encumbered in a manner permitted by the Seller's Certificate agreement of Incorporation limited partnership and shall only be made after payment in full of any amounts that the Seller is obligated to deposit in the Collection Account pursuant to this Agreement. Any indemnification under this Article VII shall survive the resignation or removal of the Trustee and the termination of this Agreement.

Seller Indemnification of the Trust and the Trustee. The Seller shall indemnify and hold harmless the Trust, for the benefit of the Certificateholders and the other Beneficiaries, and the TrusteeTrustee (including its directors, officers, employees and agents), from and against any loss, liability, expense, damage or injury suffered or sustained by reason of any acts, omissions or alleged acts or omissions arising out of activities of the Trust or the Trustee pursuant to this Agreement, including any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim; provided, however, that the Seller shall not indemnify the Trust or the Trustee if such acts, omissions or alleged acts or omissions constitute fraud, gross negligence, breach of fiduciary duty or willful wilful misconduct by the Trustee; and provided, further, provided further that the Seller shall not indemnify the Trust, the Trustee or the Certificateholders or any other Beneficiaries for any liabilities, cost or expense of the Trust with respect to any action taken by the Trustee at the request of any such Certificateholders or other Beneficiaries to the extent the Trustee is fully indemnified by such Certificateholders or other Beneficiaries with respect to such action nor or with respect to any Federalfederal, state or local income or franchise taxes (or any interest or penalties with respect thereto) required to be paid by the Trust or any Certificateholder or other Beneficiary in connection herewith to any taxing authority. Subject to Section 7.01, any Any indemnification pursuant to this Section Article VII shall only be from (i) the excess of the Seller's Interest for any date of determination over the Required Participation Amount as of such date and (ii) any other assets of the Seller not pledged to third parties or otherwise encumbered in a manner permitted by the Seller's Certificate of Incorporation and shall only be made after payment in full of any amounts that the Seller is obligated to deposit in the Collection Account pursuant to this Agreement. Any indemnification under this Article VII shall survive the resignation or removal of the Trustee and the termination of this Agreement.

Seller Indemnification of the Trust and the Trustee. The Seller shall indemnify and hold harmless the Trust, for the benefit of the Certificateholders and the other Beneficiaries, and the Trustee, from and against any loss, liability, expense, damage or injury suffered or sustained by reason of any acts, omissions or alleged acts or omissions arising out of activities of the Trust or the Trustee pursuant to this Agreement, including any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim; provided, however, that the Seller shall not indemnify the Trust or the Trustee if such acts, omissions or alleged acts or omissions constitute fraud, gross negligence, breach of fiduciary duty or willful wilful misconduct by the Trustee; and provided, further, provided further that the Seller shall not indemnify the Trust, the Trustee or the Certificateholders or any other Beneficiaries for any liabilities, cost or expense of the Trust with respect to any action taken by the Trustee at the request of any such Certificateholders or other Beneficiaries to the extent the Trustee is fully indemnified by such Certificateholders or other Beneficiaries with respect to such action nor and such action is inconsistent with their rights hereunder or with respect to any Federal, state or local income or franchise taxes (or any interest or penalties with respect thereto) required to be paid by the Trust or any Certificateholder or other Beneficiary in connection herewith to any taxing authority. Subject to Section 7.017.1, any indemnification pursuant to this Section shall only be from (i) the excess of the Seller's Interest for any date of determination over the Required Participation Amount as of such date and (ii) any other assets of the Seller not pledged to third parties or otherwise encumbered in a manner permitted by the Seller's Certificate agreement of Incorporation limited partnership and shall only be made after payment in full of any amounts that the Seller is obligated to deposit in the Collection Account pursuant to this Agreement. Any indemnification under this Article VII shall survive the termination of this Agreement.77