Release, Indemnification and Hold Harmless Agreement This Release, Indemnification and Hold Harmless Agreement (hereinafter referred to as the “Agreement”) is entered into this ____ day of ________, 2009, between _____________, a ____________ [corporation][limited liability company] (“Buyer”) and Corbitt Manufacturing Co., a division of American Railcar Industries, Inc., a Delaware corporation (“Seller”). For and in consideration of Corbitt’s sale and Buyer’s purchase of certain equipment and machinery offered in Auction 90423A (the “Auction”) as conducted by Asset Auctions (the “Equipment”), according to and in addition to the terms and conditions set forth on the Auction 90423A’s Asset Auction website and in consideration of the promises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Corbitt and Buyer agree as follows: 1. Buyer hereby acknowledges that:
(a) EXCEPT WITH RESPECT TO THOSE WARRANTIES EXPRESSLY MADE HEREIN, SELLER HEREBY DISCLAIMS ALL WARRANTIES, IMPLIED OR EXPRESS, WRITTEN OR ORAL, AS TO THE SUBJECT EQUIPMENT. SELLER HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ANY EXPRESS OR IMPLIED WARRANTIES AS TO THE QUALITY OF ANY OF THE SUBJECT EQUIPMENT, OR ANY OTHER WARRANTIES OR REPRESENTATIONS WHATSOEVER. (b) SELLER MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE CONDITION OF THE SUBJECT EQUIPMENT. THE SUBJECT EQUIPMENT IS TO BE CONVEYED TO BUYER IN ITS “AS IS, WHERE IS” CONDITION. BUYER AND SELLER AGREE THAT SELLER SHALL HAVE NO RESPONSIBILITY FOR MAKING ANY REPAIRS TO THE SUBJECT EQUIPMENT WHATSOEVER. ALL SUCH REPAIRS SHALL BE PERFORMED AND PAID FOR BY BUYER. (c) BUYER HEREBY ACKNOWLEDGES THAT BUYER HAS NOT RELIED ON ANY WARRANTY OR REPRESENTATION OF SELLER, IMPLIED OR EXPRESS, WRITTEN OR ORAL AS TO THE CONDITION OR QUALITY OF THE SUBJECT EQUIPMENT AND BUYER AGREES TO PURCHASE THE SUBJECT EQUIPMENT IN ITS “AS IS, WHERE IS” CONDITION. 2. The Buyer hereby agrees to defend, indemnify the Seller, its directors, officers, members, employees, agents, contractors, licensees, invitees, successors and assigns (hereinafter collectively referred to as the “Indemnified Parties”) against, and hold the Indemnified Parties harmless from and reimburse the Indemnified Parties for, any and all claims, demands, judgments, penalties, liabilities, costs, damages and expenses, directly or indirectly incurred by the Indemnified Parties, including court costs and attorney fees (prior to trial, at trial and on appeal), directly or indirectly caused by, resulting from or arising out of any acts or omissions committed, permitted or omitted by the Seller or any of its respective agents, employees and/or contractors related or in any way connected to the Equipment (collectively, the “Indemnified Obligations”). The obligations of the Buyer hereunder are absolute, unconditional, irrevocable, complete and continuing and shall not be released by any action which might, but for this provision of this Agreement, be deemed a legal or equitable discharge of a surety, guarantor or indemnitor, other
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than irrevocable payment and performance in full of the Indemnified Obligations. No notice of the Indemnified Obligations to which this Agreement may apply, or of any renewal or extension thereof need be given to the Buyer. The Buyer hereby waives (a) demand of payment, presentment, protest, notice of dishonor, nonpayment or nonperformance of any and all of the Indemnified Obligations; (b) notice of acceptance of this Agreement and notice of any liability to which it may apply; (c) all other notices and demands of any kind and description relating to the Indemnified Obligations now or hereafter provided for by any agreement, statute, law, rule or regulation. The Indemnified Obligations shall constitute the direct and primary obligations of the Buyer and all of its heirs, successors, assigns, and agents. 4. 5. 6. This Agreement shall be binding upon the Buyer and their respective heirs, legal representatives, successors and assigns, and shall inure to the benefit of Seller and its successors and assigns. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Missouri. SELLER AND BUYER EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. With respect to any suit, action or proceeding relating to this Agreement (“Proceedings”) each party irrevocably (i) submits to the non-exclusive jurisdiction of (A) the federal court for the Eastern District of Missouri and (C) the Circuit Court of St. Charles County, Missouri and (ii) waives any objection which it may have at any time to the laying of venue of any proceeds brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have jurisdiction over such party. Nothing in this Agreement shall preclude either party from bringing Proceedings in any other jurisdiction nor will the bringing of Proceedings in any one or more jurisdictions preclude the bringing of Proceedings in any other jurisdiction.
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Buyer:
Seller: American Railcar Industries, Inc.
By: Printed Name: Its:
By: Print Name: Michael Obertop Its: Secretary/Assistant Treasurer
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