HOG » Topics » LIMIT ON LIABILITY AND INDEMNIFICATION

This excerpt taken from the HOG 8-K filed Aug 17, 2009.

LIMIT ON LIABILITY AND INDEMNIFICATION

        Section 2.01 Lockbox Bank undertakes to perform only such duties as are expressly set forth herein. The parties hereby agree that Lockbox Bank shall not be liable for any action taken by it or any of its directors, officers, agents or employees pursuant to this Agreement, including, without limitation, any action so taken at Harley Credit’s or any Trustee’s request, except direct damages attributable to the Lockbox Bank’s or such person’s own gross negligence or willful misconduct; in no event shall Lockbox Bank be liable for any other damages, including, without limitation, consequential, indirect, punitive or special damages.

        Section 2.02 Harley Credit agrees to indemnify and hold Lockbox Bank harmless from and against all costs, damages, claims, judgments, attorneys’ fees (whether such attorneys shall be regularly retained or specially employed), expenses, obligations and liabilities which Lockbox Bank may incur, sustain or be required to pay (other than as a result of Lockbox Bank’s gross negligence or willful misconduct or the gross negligence or willful misconduct of any of Lockbox Bank’s directors, officers, agents or employees) in connection with or arising out of this Agreement (including without limitation, the amount of any overdraft created in the Lockbox Account resulting from returned items charged to the Lockbox Account or from debiting the Lockbox Account for fees owed to the Bank described in Section 1.04 hereof), and to pay to Lockbox Bank on demand the amount of all such costs, damages, judgments, attorneys’ fees, expenses, obligations and liabilities.

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        Section 2.03 Harley Credit hereby agrees to indemnify and hold harmless each Trustee and each director, officer, employee, agent and affiliate of each Trustee (collectively, the “Indemnified Parties”) from and against any and all losses, liabilities (including liabilities for penalties), claims, demands, actions, suits, judgments, out-of-pocket costs and expenses (including legal fees and expenses) arising out of or resulting from the performance by such Trustee of any obligation under this Agreement, by virtue of any act or omission on the part of Harley Credit, any Trust Depositor or any Trustee, as the case may be, enforcing any of such Trustee’s rights hereunder (other than an act or omission on the part of Harley Credit or any Trust Depositor, or any Person acting as agent for Harley Credit or any Trust Depositor, pursuant to or in accordance with an express written direction from any Trustee which is in contravention of this Agreement) including, without limitation, the Trustee’s Fees (as defined in the applicable Pooling and Servicing Agreement or Sale and Servicing Agreement) and expenses, if any, incurred in enforcing this Agreement. The obligations of Harley Credit under this Section 2.03 shall survive the termination of this Agreement.

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