other information required to be made or
8
delivered pursuant to this Agreement shall be prepared in accordance with GAAP
as in effect at the time of such preparation.
10.
INDEMNIFICATION.
WITHOUT LIMITING ANY OTHER RIGHTS THAT ANY SUCH
PERSON MAY HAVE HEREUNDER OR UNDER APPLICABLE LAW, SELLER HEREBY INDEMNIFIES AND
HOLDS HARMLESS PURCHASER AND ITS SUCCESSORS, TRANSFEREES AND ASSIGNS AND ALL
OFFICERS, DIRECTORS, SHAREHOLDERS, CONTROLLING PERSONS, EMPLOYEES AND AGENTS OF
ANY OF THE FOREGOING (EACH, AN "INDEMNIFIED PARTY"), FORTHWITH ON DEMAND, FROM
AND AGAINST ANY AND ALL DAMAGES, LOSSES, CLAIMS, LIABILITIES AND RELATED COSTS
AND EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS
(COLLECTIVELY, THE "INDEMNIFIED AMOUNTS"), ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE OWNERSHIP OF ANY PURCHASED
ASSET, EXCLUDING, HOWEVER, (X) INDEMNIFIED AMOUNTS TO THE EXTENT RESULTING FROM
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF SUCH INDEMNIFIED PARTY (IT
BEING THE INTENT OF SELLER TO INDEMNIFY THE INDEMNIFIED PARTIES FOR THEIR
NEGLIGENCE) AND (Y) THE ACCOUNT DEBTOR'S FAILURE TO PAY WHEN DUE THE UNPAID
BALANCE OF ANY PURCHASED ACCOUNT AS A RESULT OF THE FINANCIAL INABILITY OF SUCH
ACCOUNT DEBTOR TO PAY OR THE INSOLVENCY THEREOF (EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED IN THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, SECTIONS
5 AND 6 HEREOF).
WITHOUT LIMITING THE FOREGOING, SELLER HEREBY INDEMNIFIES AND
HOLDS HARMLESS EACH INDEMNIFIED PARTY FOR INDEMNIFIED AMOUNTS ARISING OUT OF OR
RELATING TO:
(A)
THE BREACH OF ANY REPRESENTATION OR WARRANTY MADE BY SELLER
PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION
DOCUMENT;
(B)
ANY FAILURE OF SELLER TO PERFORM ANY OF ITS DUTIES OR OBLIGATIONS
HEREUNDER; OR THE NONCONFORMITY OF ANY PURCHASED ACCOUNT OR THE RELATED CONTRACT
OR UNDERLYING OBLIGATIONS WITH ANY APPLICABLE LAW, RULE OR REGULATION;
(C)
ANY CLAIM RESULTING FROM THE SALE OF THE MERCHANDISE OR SERVICES
RELATED TO ANY PURCHASED ACCOUNT OR THE FURNISHING OF OR FAILURE TO FURNISH SUCH
MERCHANDISE OR SERVICES; OR ANY PRODUCTS LIABILITY CLAIM ARISING OUT OF OR IN
CONNECTION WITH MERCHANDISE OR SERVICES THAT ARE THE SUBJECT OF ANY PURCHASED
ACCOUNT;
(D)
ANY TAX (OTHER THAN INCOME TAX OF PURCHASER) OR GOVERNMENTAL FEE
OR CHARGE, ALL INTEREST AND PENALTIES THEREON OR WITH RESPECT THERETO, AND ALL
OUT-OF-POCKET COSTS AND EXPENSES, INCLUDING THE REASONABLE FEES AND EXPENSES OF
COUNSEL IN DEFENDING AGAINST THE SAME, WHICH MAY ARISE BY REASON OF THE PURCHASE
OR OWNERSHIP OF ANY PURCHASED ACCOUNT;
(E)
ANY COMMINGLING OF COLLECTIONS OF THE PURCHASED ACCOUNTS WITH
FUNDS OF SELLER OR ANY OF ITS AFFILIATES; AND
(F)
ANY INVESTIGATION, LITIGATION OR PROCEEDING RELATED TO THIS
AGREEMENT OR THE USE OF PROCEEDS OF PURCHASES HEREUNDER OR THE OWNERSHIP OF, OR
IN RESPECT OF, ANY PURCHASED ACCOUNT OR RELATED CONTRACT.
11.
MISCELLANEOUS.
(A)
AMENDMENT.
THE TERMS OF THIS AGREEMENT SHALL NOT BE ALTERED,
MODIFIED, AMENDED OR SUPPLEMENTED IN ANY MANNER WHATSOEVER EXCEPT BY WRITTEN
INSTRUMENT SIGNED BY ALL PARTIES HERETO AND DELIVERED BY EACH PARTY TO THE
OTHER.
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(B)
NO WAIVER; CUMULATIVE REMEDIES.
NO FAILURE