TO BE PERFORMED BY THE SELLER HEREUNDER OR
OTHERWISE, EXCLUDING ONLY INDEMNIFIED LOSSES TO THE EXTENT (A) A FINAL JUDGMENT
OF A COURT OF COMPETENT JURISDICTION HOLDS SUCH INDEMNIFIED LOSSES RESULTED
SOLELY FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE INDEMNIFIED PARTY
SEEKING INDEMNIFICATION, (B) SOLELY DUE TO THE CREDIT RISK OF THE OBLIGOR AND
FOR WHICH REIMBURSEMENT WOULD CONSTITUTE RECOURSE TO THE SELLER FOR
UNCOLLECTIBLE RECEIVABLES OR (C) SUCH INDEMNIFIED LOSSES INCLUDE TAXES ON, OR
MEASURED BY, THE OVERALL NET INCOME OF THE AGENT, ANY PURCHASER AGENT OR ANY
PURCHASER COMPUTED IN ACCORDANCE WITH THE INTENDED TAX CHARACTERIZATION;
PROVIDED, HOWEVER, THAT NOTHING CONTAINED IN THIS SENTENCE SHALL LIMIT THE
LIABILITY OF THE SELLER OR LIMIT THE RECOURSE OF EACH INDEMNIFIED PARTY TO THE
SELLER FOR ANY AMOUNTS OTHERWISE SPECIFICALLY PROVIDED TO BE PAID BY THE SELLER
HEREUNDER. WITHOUT LIMITING THE FOREGOING INDEMNIFICATION, BUT SUBJECT TO THE
LIMITATIONS SET FORTH IN CLAUSES (A), (B) AND (C) OF THE PREVIOUS SENTENCE, THE
SELLER SHALL INDEMNIFY EACH INDEMNIFIED PARTY FOR INDEMNIFIED LOSSES (INCLUDING
LOSSES IN RESPECT OF UNCOLLECTIBLE RECEIVABLES, REGARDLESS FOR THESE SPECIFIC
MATTERS
24
WHETHER REIMBURSEMENT THEREFORE WOULD CONSTITUTE RECOURSE TO THE SELLER)
RELATING TO OR RESULTING FROM:
(I)
ANY REPRESENTATION OR WARRANTY MADE BY THE SELLER (OR ANY
EMPLOYEE OR AGENT OF THE SELLER) UNDER OR IN CONNECTION WITH THIS AGREEMENT OR
ANY OTHER INFORMATION OR REPORT DELIVERED BY THE SELLER PURSUANT HERETO, WHICH
SHALL HAVE BEEN FALSE OR INCORRECT IN ANY MATERIAL RESPECT WHEN MADE OR DEEMED
MADE;
(II)
THE FAILURE BY THE SELLER TO COMPLY WITH ANY APPLICABLE LAW,
RULE OR REGULATION RELATED TO ANY RECEIVABLE, OR THE NONCONFORMITY OF ANY
RECEIVABLE WITH ANY SUCH APPLICABLE LAW, RULE OR REGULATION;
(III)
THE FAILURE OF THE SELLER TO VEST AND MAINTAIN VESTED IN THE
AGENT, FOR THE BENEFIT OF THE PURCHASERS, A PERFECTED OWNERSHIP OR SECURITY
INTEREST IN THE SPECIFIED ASSETS, FREE AND CLEAR OF ANY ADVERSE CLAIM;
(IV)
ANY COMMINGLING OF FUNDS TO WHICH THE AGENT OR ANY PURCHASER IS
ENTITLED HEREUNDER WITH ANY OTHER FUNDS;
(V)
ANY FAILURE OF A LOCK-BOX BANK TO COMPLY WITH THE TERMS OF THE
APPLICABLE LOCK-BOX LETTER;
(VI)
ANY DISPUTE, CLAIM, OFFSET OR DEFENSE (OTHER THAN DISCHARGE IN
BANKRUPTCY OF THE OBLIGOR) OF THE OBLIGOR TO THE PAYMENT OF ANY RECEIVABLE, OR
ANY OTHER CLAIM RESULTING FROM THE SALE OR LEASE OF GOODS OR THE RENDERING OF
SERVICES RELATED TO SUCH RECEIVABLE OR THE FURNISHING OR FAILURE TO FURNISH ANY
GOODS OR SERVICES OR OTHER SIMILAR CLAIM OR DEFENSE NOT ARISING FROM THE
FINANCIAL INABILITY OF ANY OBLIGOR TO PAY UNDISPUTED INDEBTEDNESS;
(VII)
ANY FAILURE OF THE SELLER, TO PERFORM ITS DUTIES OR OBLIGATIONS IN
ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT OR ANY OTHER TRANSACTION
DOCUMENT TO WHICH SUCH PERSON IS A PARTY (AS A COLLECTION AGENT OR OTHERWISE);
(VIII)
ANY ACTION TAKEN BY THE AGENT AS ATTORNEY-IN-FACT FOR THE SELLER;
OR
(IX)
ANY ENVIRONMENTAL LIABILITY CLAIM, PRODUCTS LIABILITY CLAIM OR
PERSONAL INJURY OR PROPERTY DAMAGE SUIT OR OTHER SIMILAR