Common use of Xxxxxxxxxxxxxxx Clause in Contracts

Xxxxxxxxxxxxxxx. Xx accordance with Section 7.2 of the Sale and Servicing Agreement, the Servicer shall be liable as primary obligor for, and shall indemnify the Owner Trustee (in such capacity or individually) and its successors, assigns, agents and servants (collectively, the "Indemnified Parties") from and against, any and all liabilities, obligations, losses, damages, taxes, claims, actions and suits, and any and all reasonable costs, expenses and disbursements (including reasonable legal fees and expenses) of any kind and nature whatsoever (collectively, "Expenses") which may at any time be imposed on, incurred by, or asserted against the Owner Trustee or any Indemnified Party in any way relating to or arising out of this Agreement, the other Basic Documents, the Owner Trust Estate, the administration of the Owner Trust Estate or the action or inaction of the Owner Trustee hereunder, except only that the Servicer shall not be liable for or required to indemnify the Owner Trustee from and against Expenses arising or resulting from any of the matters described in the third sentence of Section 7. 1. The indemnities contained in this Section shall survive the resignation or termination of the Owner Trustee or the termination of this Agreement. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any Indemnified Party in respect of which indemnity may be sought pursuant to this Section 8.2, such Indemnified Party shall promptly notify the Servicer in writing, and the Servicer upon request of the Indemnified Party shall retain counsel reasonably satisfactory to the Indemnified Party (or, with the consent of the Servicer, counsel selected by the Indemnified Party acceptable to the Servicer) to represent the Indemnified Party and any others the Servicer may designate in such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding. The Servicer shall not be liable for any settlement of any claim or proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Servicer agrees to indemnify any Indemnified Party from and against any loss or liability by reason of such settlement or judgment. The Servicer shall not, without the prior written consent of the Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such proceeding.

Xxxxxxxxxxxxxxx. Xx accordance with Section 7.2 (x) The Company agrees to indemnify and hold harmless Purchaser, its Affiliates, and each Person, if any, who controls Purchaser, or any of its Affiliates, within the meaning of the Sale and Servicing AgreementSecurities Act or the Exchange Act (each, the Servicer shall be liable as primary obligor fora "Controlling Person"), and shall indemnify the Owner Trustee respective partners, agents, employees, officers and Directors of Purchaser, their Affiliates and any such Controlling Person (in such capacity or individuallyeach an "Indemnified Party") and its successors, assigns, agents and servants (collectively, the "Indemnified Parties") ), from and against, against any and all losses, claims, damages, liabilities and expenses (including, without limitation and as incurred, reasonable costs of investigating, preparing or defending any such claim or action, whether or not such Indemnified Party is a party thereto, provided that the Company shall not be obligated to advance such costs to any Indemnified Party other than Purchaser unless it has received from such Indemnified Party an undertaking to repay to the Company the costs so advanced if it should be determined by final judgment of a court of competent jurisdiction that such Indemnified Party was not entitled to indemnification hereunder with respect to such costs) which may be incurred by such Indemnified Party in connection with any investigative, administrative or judicial proceeding brought or threatened that relates to or arises out of, or is in connection with any activities contemplated by any Transaction Agreement or any other services rendered in connection herewith; provided that the Company will not be responsible for any claims, liabilities, obligations, losses, damagesdamages or expenses that are determined by final judgment of a court of competent jurisdiction to result from such Indemnified Party's gross negligence, taxes, claims, actions and suits, and any and all reasonable costs, expenses and disbursements (including reasonable legal fees and expenses) of any kind and nature whatsoever (collectively, "Expenses") which may at any time be imposed on, incurred by, willful misconduct or asserted against the Owner Trustee or any Indemnified Party in any way relating to or arising out of this Agreement, the other Basic Documents, the Owner Trust Estate, the administration of the Owner Trust Estate or the action or inaction of the Owner Trustee hereunder, except only that the Servicer shall not be liable for or required to indemnify the Owner Trustee from and against Expenses arising or resulting from any of the matters described in the third sentence of Section 7bad faith. 1. The indemnities contained in this Section shall survive the resignation or termination of the Owner Trustee or the termination of this Agreement. (b) If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand action shall be brought or asserted against any an Indemnified Party in with respect of to which indemnity may be sought pursuant to against the Company under this Section 8.2Agreement, such Indemnified Party shall promptly notify the Servicer Company in writing, writing and the Servicer upon request Company, at its option, may, assume the defense thereof, including the employment of the Indemnified Party shall retain counsel reasonably satisfactory to the Indemnified Party (or, with the consent of the Servicer, counsel selected by the Indemnified Party acceptable to the Servicer) to represent the such Indemnified Party and payment of all reasonable fees and expenses. The failure to so notify the Company shall not affect any others obligations the Servicer Company may designate have to such Indemnified Party under this Agreement or otherwise unless the Company is materially adversely affected by such failure. Such Indemnified Party shall have the right to employ separate counsel in such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party, unless (i) the Company has failed to assume the defense and employ counsel or (ii) the named parties to any such action (including any impleaded parties) include such Indemnified Party and the Company, and such Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company, in which case, if such Indemnified Party notifies the Company in writing that it elects to employ separate counsel at the expense of the Company, the Company shall not have the right to assume the defense of such action or proceeding and on behalf of such Indemnified Party, provided, however, that the Company shall pay not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be responsible hereunder for the reasonable fees and expenses of more than one such firm of separate counsel, in addition to any local counsel, which counsel related to such proceedingshall be designated by Purchaser. The Servicer Company shall not be liable for any settlement of any claim or proceeding such action effected without its the written consent, but if settled with such consent or if there of the Company (which shall not be a final judgment for unreasonably withheld) and the plaintiff, the Servicer Company agrees to indemnify any and hold harmless each Indemnified Party from and against any loss or liability by reason of such settlement or judgmentof any action effected with the consent of the Company. The Servicer shall In addition, the Company will not, without the prior written consent of Purchaser, settle or compromise or consent to the Indemnified Party, effect entry of any settlement of judgment in or otherwise seek to terminate any pending or threatened action, claim, suit or proceeding in respect of to which indemnification or contribution may be sought hereunder (whether or not any Indemnified Party is or could have been a party thereto) unless such settlement, compromise, consent or termination includes an express unconditional release of Purchaser and the other Indemnified Parties, satisfactory in form and substance to Purchaser, from all liability arising out of such action, claim, suit or proceeding. (c) If for any reason the foregoing indemnity could have been sought hereunder by is unavailable (otherwise than pursuant to the express terms of such indemnity) to an Indemnified Party or insufficient to hold an Indemnified Party harmless, then in lieu of indemnifying such Indemnified Party, unless such settlement includes an unconditional release of the Company shall contribute to the amount paid or payable by such Indemnified Party from all liability on claims that are the subject matter as a result of such proceedingclaims, liabilities, losses, damages, or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Purchaser on the other from the transactions contemplated by this Agreement or (ii) if the allocation provided by clause (i) is not permitted under applicable law, in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Purchaser on the other, but also the relative fault of the Company and the Purchaser as well as any other relevant equitable considerations. Notwithstanding the provisions of this Section 13.3, the aggregate contribution of all Indemnified Parties shall not exceed the amount of interest and fees actually received by the Purchaser pursuant to this Agreement. It is hereby further agreed that the relative benefits to the Company on the one hand and the Purchaser on the other with respect to the transactions contemplated hereby shall be determined by reference to, among other things, whether any untrue or alleged untrue statement of material fact or the omission or alleged omission to state a material fact related to information supplied by the Company or by the Purchaser and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. (d) The indemnification, contribution and expense reimbursement obligations set forth in this Section 13.3 (i) shall be in addition to any liability the Company may have to any Indemnified Party at common law or otherwise; (ii) shall survive the termination of this Agreement and the other Transaction Agreements and the payment in full of the Preferred Shares and (iii) shall remain operative and in full force and effect regardless of any investigation made by or on behalf of Purchaser or any other Indemnified Party.

Xxxxxxxxxxxxxxx. Xx accordance with the event any Registrable Securities are included in a registration statement under this Section 7.2 2: (a) To the extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Sale Securities Act or the Exchange Act, against any Violation and Servicing Agreementthe Company will pay to each such Holder, underwriter, controlling person or other aforementioned person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action as such expenses are incurred; provided, however, that the Servicer indemnity agreement contained in this subsection 2.9(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable as primary obligor forin any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and shall in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person. (b) To the extent permitted by law, each selling Holder will severally and not jointly indemnify and hold harmless the Owner Trustee (Company, each of its directors, each of its officers who has signed the registration statement, each person, if any, who controls the Company within the meaning of the Securities Act, legal counsel and accountants for the Company, any underwriter, any other Holder selling securities in such capacity registration statement and any controlling person of any such underwriter or individually) and its successorsother Holder, assignsagainst any losses, agents and servants (collectively, the "Indemnified Parties") from and against, any and all liabilities, obligations, lossesclaims, damages, taxesor liabilities (joint or several) to which any of the foregoing persons may become subject, under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereto) arise out of or are based upon any Violation, in each case to the extent (and suitsonly to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Holder expressly for use in connection with such registration; and each such Holder will pay, any legal or other expenses reasonably incurred by any person intended to be indemnified pursuant to this subsection 2.9(b), in connection with investigating or defending any such loss, claim, damage, liability, or action; provided, however, that the indemnity agreement contained in this subsection 2.9(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld; provided, further, that, in no event shall any indemnity under this subsection 2.9(b) exceed the net proceeds from the offering received by such Holder, except in the case of fraud or willful misconduct by such Holder. (c) Promptly after receipt by an indemnified party under this Section 2.9 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 2.9, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party (together with all other indemnified parties which may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. (d) In order to provide for just and all reasonable costs, expenses and disbursements (including reasonable legal fees and expenses) of any kind and nature whatsoever (collectively, "Expenses") which may at any time be imposed on, incurred by, or asserted against equitable contribution to joint liability under the Owner Trustee or any Indemnified Party Securities Act in any way relating to or arising out of case in which either (i) any Holder exercising rights under this Agreement, or any controlling person of any such Holder, makes a claim for indemnification pursuant to this Section 2.9 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 2.9 provides for indemnification in such case, or (ii) contribution under the Securities Act may be required on the part of any such selling Holder or any such controlling person in circumstances for which indemnification is provided under this Section 2.9, then, and in each such case, the Company and such Holder will contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (after contribution from others) in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other Basic Documentsin connection with the statements or omissions that resulted in such loss, liability, claim, damage, or expense as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission; provided however, that, in any such case, (I) no such Holder will be required to contribute any amount in excess of the public offering price of all such Registrable Securities offered and sold by such Holder pursuant to such registration statement, and (II) no person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person or entity who was not guilty of such fraudulent misrepresentation; provided further, that in no event shall a Holder’s liability pursuant to this Section 2.9(d), when combined with the amounts paid or payable by such holder pursuant to Section 2.9(b), exceed the proceeds from the offering (net of any underwriting discounts or commissions) received by such Holder, except in the case of willful fraud by such Holder. (e) Unless otherwise superceded by an underwriting agreement entered into in connection with the underwritten public offering, the Owner Trust Estate, the administration obligations of the Owner Trust Estate or the action or inaction of the Owner Trustee hereunder, except only that the Servicer shall not be liable for or required to indemnify the Owner Trustee from Company and against Expenses arising or resulting from any of the matters described in the third sentence of Section 7. 1. The indemnities contained in Holders under this Section 2.9 shall survive the resignation or termination completion of the Owner Trustee or any offering of Registrable Securities in a registration statement under this Section 2, and otherwise and shall survive the termination of this Agreement. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any Indemnified Party in respect of which indemnity may be sought pursuant to this Section 8.2, such Indemnified Party shall promptly notify the Servicer in writing, and the Servicer upon request of the Indemnified Party shall retain counsel reasonably satisfactory to the Indemnified Party (or, with the consent of the Servicer, counsel selected by the Indemnified Party acceptable to the Servicer) to represent the Indemnified Party and any others the Servicer may designate in such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding. The Servicer shall not be liable for any settlement of any claim or proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Servicer agrees to indemnify any Indemnified Party from and against any loss or liability by reason of such settlement or judgment. The Servicer shall not, without the prior written consent of the Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such proceeding.

Xxxxxxxxxxxxxxx. Xx accordance with (x) Xxx Xompany agreex xx xxxxxxxxx and hold harmless Indigo, its employees and representatives and each person who controls Indigo within the meaning of Section 7.2 15 of the Sale and Servicing Agreement, the Servicer shall be liable as primary obligor for, and shall indemnify the Owner Trustee (in such capacity or individually) and its successors, assigns, agents and servants (collectively, the "Indemnified Parties") from and against, Securities Act against any and all liabilities, obligations, losses, damages, taxes, claims, actions damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act or any other statute or at common law in connection with the performance of its duties described herein and suits, and to reimburse persons indemnified as above for any and all reasonable costs, expenses and disbursements legal or other expense (including reasonable legal fees and expenses) the cost of any kind investigation and nature whatsoever (collectively, "Expenses"preparation) which may at incurred by them in connection with any time be imposed on, incurred by, litigation whether or asserted against the Owner Trustee or any Indemnified Party not resulting in any way relating to or arising out of this Agreementliability, the other Basic Documentsprovided, the Owner Trust Estatehowever, the administration of the Owner Trust Estate or the action or inaction of the Owner Trustee hereunder, except only that the Servicer shall not be liable for or required to indemnify the Owner Trustee from and against Expenses arising or resulting from any of the matters described in the third sentence of Section 7. 1. The indemnities indemnity agreement contained in this Section 6(a) shall survive not apply to amounts paid in settlement of any such litigation if such settlement is effected without the resignation or termination consent of the Owner Trustee Company, nor shall it apply to Indigo or any person controlling Indigo in respect of any such losses, claims, damages, or liabilities arising out of, or based upon, any such untrue statement or alleged untrue statement, or any such omission or alleged omission, if such statement or omission was made in reliance upon information furnished in writing to the termination Company by Indigo. Indigo agrees within ten days after the receipt by it of this Agreement. If written notice of the commencement of any suit, action, proceeding (including any governmental action against it or regulatory investigation), claim or demand shall be brought or asserted against any Indemnified Party person controlling it as aforesaid, in respect of which indemnity may be sought pursuant to from the Company on account of the indemnity agreement contained in this Section 8.26(a), such Indemnified Party shall promptly to notify the Servicer Company in writing, and the Servicer upon request writing of the Indemnified Party commencement thereof. The omission of Indigo so to notify the Company of any such action shall retain not relieve the Company from any liability which it may have to Indigo or any person controlling it as aforesaid on account of the indemnity agreement contained in this subsection except to the extent that any such failure in giving notice causes the amounts paid by the Company to be greater than it otherwise would have been. In case any such action shall be brought against Indigo or any such controlling person and Indigo shall notify the Company of the commencement thereof, the Company shall be entitled to participate in (and, to the extent that it shall wish, to direct) the defense thereof at its own expense but such defense shall be conducted by counsel of recognized standing and reasonably satisfactory to Indigo or such controlling person or persons, defendant or defendants in the Indemnified Party litigation; provided, that the Company shall not be required to pay for more than one firm of counsel for all indemnified parties, which firm shall be designated by Indigo. The Company agrees to notify Indigo promptly of the commencement of any litigation or proceeding against it or in connection with the issue and sale of any of its securities and to furnish to Indigo, at its request, copies of all pleadings therein and permit Indigo to be an observer therein and apprise Indigo of all developments therein, all at the Company's expense. (orb) Indigo agrees, in the same manner and to the same extent as set forth in Section 6(a) of this Agreement, to indemnify and hold harmless the Company and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act, with respect to any statement in or omission from the consent of the Servicerinformation provided to investors any amendments thereto, counsel selected by the Indemnified Party acceptable if such statement or omission was made in reliance upon information furnished in writing to the Servicer) Company by Indigo, on its behalf, specifically for use in connection with the preparation of documents to represent the Indemnified Party be provided to prospective investors or any amendment thereof or supplement thereto or by reason of improper selling practices (including failure to comply with, or a violation of, any law or regulation by Indigo, its officers, directors and any others the Servicer may designate in such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceedingregistered placement agents). The Servicer Indigo shall not be liable for amounts paid in settlement of any such litigation if such settlement was effected without its consent. In case of commencement of any action, in respect of which indemnity may be sought from Indigo on account of the indemnity agreement contained in this Section 6(b), each person agreed to be indemnified by Indigo shall have the same obligation to notify Indigo as Indigo has toward the Company in Section 6(a) of this Agreement, subject to the same potential loss of indemnity in the event such notice is not given, and Indigo shall have the same right to participate in (and to the extent that it shall wish, to direct) the defense of such action at its own expense, but such defense shall be conducted by one firm of counsel of recognized standing and satisfactory to the Company. Indigo agrees to notify the Company promptly of the commencement of any litigation or proceeding against it or against any such controlling person, of which it may be advised, in connection with the issue and sale of any of the securities of the Company, and to furnish the Company at its request copies of all pleadings therein and permit the Company to be an observer therein and apprise it of all developments therein, all at Indigo's expense. (c) The respective indemnity agreements between Indigo and the Company contained in Sections 6(a) and 6(b) of this Agreement, and the representations and warranties of the Company set forth elsewhere in this Agreement, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of Indigo or by or on behalf of any controlling person of Indigo or the Company any controlling person of the Company, shall survive the delivery of the Units. Any successor of the Company and Indigo or of any controlling person of Indigo, as the case may be, shall be entitled to the benefits of the respective indemnity agreements. (d) In order to provide for just and equitable contribution under the Securities Act in any case in which (i) any person entitled to indemnification under this Section 6 makes claim for indemnification pursuant hereto but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 6 provides for indemnification in such case, or (ii) contribution under the Securities Act may be required on the part of any such person in circumstances for which indemnification is provided under this Section 6, then, and in each such case, the Company and Indigo shall contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (after any contribution from others) in such proportions so that Indigo is responsible for the proportion that the fees provided for herein bear to the purchase price of the Securities, and the Company is responsible for the remaining portion; provided, that, in any such case, no person guilty of a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Within ten days after receipt by any party to this Agreement of notice of the commencement of any action, suit or proceeding, such party will, if a claim for contribution in respect thereof is to be made against another party (the "CONTRIBUTING PARTY"), notify the contributing party, in writing, of the commencement thereof, but the omission so to notify the contributing party will not relieve it from any liability which it may have to any other party other than for contribution hereunder except to the extent that any such failure in giving notice causes the amounts paid by the contributing party to be greater than it otherwise would have been. In case any such action, suit or proceeding is brought against any party, and such party so notifies a contributing party or his or its Placement Agent of the commencement thereof within the aforesaid ten days, the contributing party will be entitled to participate therein with the notifying party and any other contributing party similarly notified. Any such contributing party shall not be liable to any party seeking contribution on account of any settlement of any claim claim, action or proceeding effected without its written consent, but if settled with by such consent or if there be a final judgment for the plaintiff, the Servicer agrees to indemnify any Indemnified Party from and against any loss or liability by reason of such settlement or judgment. The Servicer shall not, party seeking contribution without the prior written consent of such contributing party. The contribution provisions contained in Section 6 are in addition to any other rights or remedies which either party hereto may have with respect to the Indemnified Party, effect any settlement of any pending other or threatened proceeding in respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such proceedinghereunder.