HOLD HARMLESS, ON AN AFTER-TAX BASIS, BUYER AND
EACH OTHER PURCHASER REPRESENTATIVE FROM AND AGAINST ALL (I) TAXES WHICH MAY AT
ANY TIME BE IMPOSED OR ASSERTED BY REASON OF, IN CONNECTION WITH OR IN RESPECT
OF THE RECEIVABLES OR THE WAREHOUSE ASSETS OR ANY TRANSACTIONS CONTEMPLATED
HEREBY OR THE RECEIPT OF PAYMENT UNDER THIS SECTION 9.2, WHETHER IMPOSED ON
BUYER, ANY OTHER PURCHASER REPRESENTATIVE, CUSTOMER, THE RECEIVABLES, THE
WAREHOUSE ASSETS OR OTHERWISE, AND WHETHER ARISING BY REASON OF THE ACTS TO BE
PERFORMED BY CUSTOMER HEREUNDER OR OTHERWISE AND (II) DAMAGES, LOSSES, CLAIMS,
LIABILITIES AND RELATED COSTS AND EXPENSES OF BUYER AND EACH OTHER PURCHASER
REPRESENTATIVE IN CONNECTION WITH THE IMPOSITION OR ASSERTION OF ANY TAX
DESCRIBED IN (I); PROVIDED, HOWEVER, THIS SECTION 9.2(A) SHALL NOT APPLY WITH
RESPECT TO TAXES ON OR MEASURED BY THE OVERALL NET INCOME, NET PROFITS OR NET
RECEIPTS OF BUYER OR SUCH PURCHASER REPRESENTATIVE ("INCOME TAXES") TO THE
EXTENT THAT THE COMPUTATION OF SUCH INCOME TAXES IS CONSISTENT WITH THE INTENDED
CHARACTERIZATION (AS DEFINED IN SECTION 9.2(C)).
(B)
IN ADDITION TO AND NOT IN LIMITATION OF THE
INDEMNIFICATIONS CONTAINED IN SECTION 9.2(A), CUSTOMER HEREBY AGREES TO PAY, AND
TO INDEMNIFY, PROTECT, SAVE AND HOLD HARMLESS, BUYER AND EACH OTHER PURCHASER
REPRESENTATIVE, ON AN AFTER-TAX BASIS, FROM AND
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against (i) the excess of (x) the aggregate state and local Taxes on or measured
by net income or profits (and Taxes in lieu thereof) payable by any such
indemnified party in connection with or in respect of the Receivables or any
transactions contemplated hereby or the receipt of payment under this
Section 9.2, over (y) the amount of such state and local income Taxes which
would have been payable on such indemnified party's net income in connection
with or in respect of the Receivables or any transactions contemplated hereby,
had the entire amount of such income been subject to Tax in the jurisdiction in
which such indemnified party's principal executive office is located, and only
in such jurisdiction and (ii) all damages, losses, claims, liabilities and
related costs and expenses of such indemnified party in connection with
clause (i).
(C)
IT IS THE INTENTION OF THE PARTIES HERETO
THAT FOR THE PURPOSES OF ALL TAXES, THE TRANSACTIONS CONTEMPLATED HEREBY SHALL
BE TREATED AS A LOAN BY BUYER TO CUSTOMER (THE "INTENDED CHARACTERIZATION").
THE PARTIES HEREBY AGREE TO REPORT SUCH TRANSACTIONS FOR THE PURPOSES OF ALL
TAXES, AND OTHERWISE TO ACT FOR THE PURPOSES OF ALL TAXES, IN A MANNER
CONSISTENT WITH THE INTENDED CHARACTERIZATION.
(D)
ALL PAYMENTS DUE PURSUANT TO THIS
SECTION 9.2 SHALL BE PAID NO LATER THAN FIVE (5) DAYS AFTER DEMAND FOR SUCH
PAYMENT HAS BEEN MADE BY AN INDEMNIFIED PARTY.
WITHOUT IN ANY WAY LIMITING SUCH
PARTIES' REMEDIES, ANY SUCH AMOUNT NOT PAID WHEN DUE SHALL BEAR INTEREST AT A
RATE EQUAL TO THE OVERDUE RATE.
ANY CLAIM THAT AN INDEMNIFIED PARTY MAKES FOR
PAYMENT PURSUANT TO THIS SECTION 9.2 SHALL BE ACCOMPANIED BY A STATEMENT OF SUCH
PARTIES'