DELIVERED
PURSUANT HERETO OR THERETO SHALL PROVE TO HAVE BEEN INCORRECT OR UNTRUE IN ANY
MATERIAL RESPECT (OR, IF SUCH REPRESENTATION IS ALREADY QUALIFIED BY ANY
STANDARD OF MATERIALITY, IN ANY RESPECT) WHEN MADE OR DEEMED MADE, AND SHALL
REMAIN INCORRECT OR UNTRUE FOR FIVE BUSINESS DAYS AFTER NOTICE TO SUCH
ORIGINATOR OF SUCH INACCURACY; OR
(C)
ANY ORIGINATOR SHALL FAIL TO PERFORM OR OBSERVE ANY TERM, COVENANT
OR AGREEMENT CONTAINED IN THIS AGREEMENT OR ANY OF THE OTHER TRANSACTION
DOCUMENTS ON ITS PART TO BE PERFORMED OR OBSERVED AND SUCH FAILURE SHALL REMAIN
UNREMEDIED FOR 15 DAYS AFTER SUCH PERSON BECAME AWARE OF, OR RECEIVED NOTICE OF,
SUCH FAILURE.
8.2
Remedies.
(A)
OPTIONAL TERMINATION.
UPON THE OCCURRENCE OF A PURCHASE AND SALE
TERMINATION EVENT, THE COMPANY (AND NOT THE SERVICER) OR, AFTER THE ASSIGNMENT
HEREOF TO THE AGENT PURSUANT TO THE RECEIVABLES PURCHASE AGREEMENT, THE AGENT,
SHALL HAVE THE OPTION, BY NOTICE TO THE ORIGINATORS (WITH, IN THE CASE OF THE
COMPANY, A COPY TO THE AGENT), TO DECLARE THE PURCHASE AND SALE TERMINATION DATE
TO HAVE OCCURRED.
(B)
REMEDIES CUMULATIVE.
UPON ANY TERMINATION OF THE PURCHASE
FACILITY PURSUANT TO SECTION 8.2(A), THE COMPANY OR, AFTER THE ASSIGNMENT HEREOF
TO THE AGENT PURSUANT TO THE RECEIVABLES PURCHASE AGREEMENT, THE AGENT, SHALL
HAVE, IN ADDITION TO ALL
23
OTHER RIGHTS AND REMEDIES UNDER THIS AGREEMENT, ALL OTHER RIGHTS AND REMEDIES
PROVIDED UNDER THE UCC OF EACH APPLICABLE JURISDICTION AND OTHER APPLICABLE
LAWS, WHICH RIGHTS SHALL BE CUMULATIVE.
ARTICLE IX
INDEMNIFICATION
9.1
Indemnities by the Originator.
Without limiting any other rights that the Company or any of its Affiliates,
employees, officers, directors, agents, counsel, successors, transferees or
assigns (each, a "Purchase and Sale Indemnified Party") may have hereunder or
under applicable law, each Originator hereby agrees to indemnify each Purchase
and Sale Indemnified Party (on an after tax basis) from and against any and all
claims, damages, expenses, costs, losses and liabilities (including Attorney
Costs) (all of the foregoing being collectively referred to as "Purchase and
Sale Indemnified Amounts") arising out of, or resulting from or in connection
with, this Agreement or any of the other Transaction Documents (whether directly
or indirectly) or the transactions contemplated thereby, the use of proceeds
thereof, the commingling of funds (whether or not permitted hereunder), the
Purchased Assets (including the merchandise and sale of merchandise giving rise
to Receivables), the ownership of or any interest in or in respect of any
Receivable, Related Security, Contract or other Purchased Assets, excluding,
however: (a) Purchase and Sale Indemnified Amounts to the extent a final
judgment of a court of competent jurisdiction holds they result from the gross
negligence or willful misconduct on the part of such Purchase and Sale
Indemnified Party or its officers, directors, agents or counsel, (b) any
indemnification which has the effect of recourse to any indemnitor for the
uncollectibility of Receivables due to the lack of creditworthiness of the
applicable Obligor thereof, (c) Purchase and Sale Indemnified Amounts relating
to the failure