Common use of Mileage Equalization Clause in Contracts

Mileage Equalization. From and after the Closing Date, at the reasonable request of Sellers, Purchaser shall (at Sellers’ sole cost and expense) provide to Sellers such information as is readily available to Purchaser to assist Sellers in determining, and prepare and mail invoices to Obligors under any Owned Car Lease Contract or LILO Sublease Contract with respect to the collection from such Obligors of, amounts due under such contracts in respect of Mileage Equalization Charges that are Excluded Liabilities (in each case covering such amounts as are owed with respect thereto as reasonably determined by MILPI and communicated to Purchaser in writing). In addition, Purchaser shall (at Sellers’ sole cost and expense) take such other action as may be reasonably requested by Sellers to assist in the collection from such Obligors of any such amounts as are owed in respect of Mileage Equalization Charges that are Excluded Liabilities and are owed or owing under such Owned Car Lease Contract or LILO Sublease Contract; provided, that (i) Purchaser shall not be required to commence or prosecute any arbitration, litigation or other legal action or proceeding against any such Obligors and (ii) Purchaser shall have no liability to Sellers for any action taken by Purchaser pursuant to this Section 5.18 or any failure to take such action; provided further, that nothing in the foregoing clause (ii) shall relieve Purchaser of its obligation to prepare and mail at least one (1) invoice to each such Obligor in accordance with the first sentence of this Section 5.18. At Purchaser’s request, Sellers shall provide Purchaser any information reasonably requested in connection with the preparation and mailing of invoices by Purchaser pursuant to this Section 5.18. Any and all amounts remitted to Purchaser in respect of such invoices shall be received by Purchaser as agent, in trust for and on behalf of Sellers, and Purchaser shall pay all of such amounts over to the Sellers in accordance with Section 5.9 hereof. Purchaser acknowledges and agrees that any and all amounts remitted to Purchaser in respect of such invoices are Excluded Assets. Notwithstanding anything contained in this Agreement to the contrary (A) Sellers may at any time, upon notice to Purchaser, contact any Obligor directly for the purpose of collecting any amounts owed in respect of Mileage Equalization Charges that are Excluded Liabilities, (B) Sellers shall promptly notify Purchaser in the event any Seller shall commence any arbitration, litigation or other action or proceeding against any Obligor for any such amounts, and (C) in the event that any arbitration, litigation or other action or proceeding shall be commenced in connection with any such Mileage Equalization Charges that are Excluded Liabilities or any obligations in respect thereof, the Purchaser Indemnified Parties shall be indemnified by Sellers, pursuant to Article IX hereof, from and against any and all Damages suffered or incurred by any of them resulting from, arising out of or relating to any such arbitration, litigation or other action or proceeding, in each case without regard to the limitations set forth in the first sentence of Section 9.5(b) hereof (which shall not apply to such claims). Sellers shall be responsible for and shall pay when due all Mileage Equalization Charges that are Excluded Liabilities. . Schedule 5.19 hereto sets forth Sellers’ good faith estimate of unpaid Maintenance Expenses for maintenance, improvements, alterations and running repairs authorized by Sellers on or prior to the date hereof, in each case where such Maintenance Expenses in respect of any Owned Car are reasonably expected by Sellers to exceed $2,000.00 in the aggregate. Between the date of this Agreement and the Closing, Sellers shall provide Purchaser with updates to Schedule 5.19 if and when Sellers authorize (in accordance with Section 5.5(f) hereof) maintenance, improvements, alterations or running repairs that are reasonably expected by Sellers to result in Maintenance Expenses in respect of any Owned Car in excess of $2,000.00 in the aggregate. As a condition to Closing, Sellers shall deliver a final update to Schedule 5.19 dated as of the Closing Date. . Purchaser acknowledges that, as of the date hereof, Sellers have entered into discussions with a third party regarding a possible sale of certain Rail Cars managed pursuant to the Management Contracts commonly known as the RMI Covered ▇▇▇▇▇▇ Railcar Management Program 79-1 Management Agreements, or "IP-20 Management Contracts" (the "IP-20 Rail Cars"). Sellers agree that, in the event that any sale agreement with respect to the IP-20 Rail Cars (any such agreement, the "IP-20 Sale Agreement") is entered into prior to the Closing Date, Sellers shall use their reasonable best efforts to schedule the closing of the transactions contemplated by such IP-20 Sale Agreement for a date after the Closing Date. Sellers further agree that any fees, commissions or other amounts due and payable to Sellers under any such IP-20 Sale Agreement or otherwise in connection with the sale of the IP-20 Rail Cars shall be for the account of, and paid to, Purchaser either (i) if the closing of the transactions contemplated by such IP-20 Sale Agreement shall occur prior to the Closing Date, as a reduction to Purchaser Price pursuant to clause (v) of Section 2.2(a) hereof, or (ii) if the closing of the transactions contemplated by such IP-20 Sale Agreement shall occur on or after the Closing Date, in accordance with Section 5.9(a) hereof (it being understood and agreed that any such fees, commissions or other amounts shall be deemed to be "paid in respect of Purchased Assets" for purpose of Section 5.9(a) hereof).