THE INDEMNIFIED PARTY TO RECOVER OR OBTAIN
REIMBURSEMENT FOR THE PAYMENT FROM ANY THIRD PARTY.
AT THE REQUEST OF THE
INDEMNIFYING PARTY AT ANY TIME AND FROM TIME TO TIME, THE INDEMNIFIED PARTY
SHALL EXECUTE AND DELIVER TO THE INDEMNIFYING PARTY ANY DOCUMENT (AND DO ALL
SUCH OTHER LEGALLY PERMISSIBLE ACTS AND THINGS) AS ARE REASONABLY NECESSARY TO
ENABLE THE INDEMNIFYING PARTY TO OBTAIN OR REALIZE THE BENEFIT OF THAT
SUBROGATION, INCLUDING THE PROSECUTION BY THE INDEMNIFIED PARTY, AT THE
INDEMNIFYING PARTY'S EXPENSE, OF A LEGAL PROCEEDING TO ENFORCE THOSE RIGHTS OF
THE INDEMNIFIED PARTY, IN EACH CASE TO THE EXTENT THAT SUCH INDEMNIFIED PARTY
COULD NOT REASONABLY BE EXPECTED TO BE MATERIALLY AND ADVERSELY AFFECTED
THEREBY.
IF THE INDEMNIFYING PARTY REQUESTS THE INDEMNIFIED PARTY TO INSTITUTE
A LEGAL PROCEEDING TO RECOVER OR OBTAIN REIMBURSEMENT FROM A THIRD PARTY OF ANY
AMOUNT PAID BY THE INDEMNIFYING PARTY TO OR ON BEHALF OF THE INDEMNIFIED PARTY
FOR ANY INDEMNIFIED DAMAGES, THAT LEGAL PROCEEDING WILL BE COVERED BY THE
INDEMNIFICATION PROVISIONS OF THIS ARTICLE VI AS A THIRD PARTY CLAIM, AND THE
INDEMNIFYING PARTY SHALL INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED PARTY FROM
ALL DAMAGES ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THAT LEGAL PROCEEDING
TO THE SAME EXTENT THAT IT IS OBLIGATED TO DO FOR ANY LOSSES OF A THIRD PARTY
CLAIM THAT IS INDEMNIFIED HEREUNDER.
6.7
INDEMNIFICATION NET OF BENEFITS.
THE AMOUNT
OF ANY RECOVERY BY AN INDEMNIFIED PARTY PURSUANT TO THIS ARTICLE VI SHALL BE NET
OF ANY TAX BENEFITS AND NET OF ANY INSURANCE BENEFITS ACTUALLY RECEIVED BY SUCH
INDEMNIFIED PARTY OR ITS AFFILIATES.
THE INDEMNIFIED PARTY COVENANTS TO SEEK
AND PURSUE INSURANCE BENEFITS TO WHICH IT IS ENTITLED.
6.8
EXCLUSIVE REMEDY.
THIS ARTICLE VI SETS
FORTH THE SOLE AND EXCLUSIVE REMEDIES OF BUYER AND SELLER AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS FOR ANY ACTION ANY OF THEM MAY ASSERT OR ATTEMPT TO
ASSERT AGAINST THE OTHER TO THE EXTENT THE ACTION IN ANY WAY RELATES TO THIS
AGREEMENT OR ITS NEGOTIATION, EXECUTION, DELIVERY OR PERFORMANCE, ANY ALLEGED
BREACH OF OR DEFAULT UNDER THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED
HEREBY, REGARDLESS OF WHETHER SUCH ACTION IS BASED IN TORT (FOR EXAMPLE,
INTENTIONAL OR NEGLIGENT MISREPRESENTATION) OR CONTRACT, OR ARISES AT LAW OR IN
EQUITY; PROVIDED, HOWEVER, THE FOREGOING LIMITATION SHALL NOT APPLY TO A FRAUD
CLAIM.
6.9
RELATIONSHIP BETWEEN ASSUMED LIABILITIES AND
INDEMNIFICATION.
SUBJECT TO THE PROVISIONS OF THIS ARTICLE VI, BUYER SHALL BE
ENTITLED TO INDEMNIFICATION PURSUANT TO SECTION 6.2 FOR DAMAGES IN RESPECT OF
THE BREACH BY SELLER OF THE REPRESENTATIONS AND WARRANTIES CONTAINED IN
ARTICLE II EVEN IF SUCH DAMAGES WOULD OTHERWISE BE ASSUMED BY BUYER UNDER
SECTION 1.1(C).
24
ARTICLE VII
MISCELLANEOUS
7.1
RULES OF CONSTRUCTION.
THIS AGREEMENT HAS
BEEN NEGOTIATED BY THE PARTIES AND IS TO BE INTERPRETED ACCORDING TO ITS FAIR
MEANING AS IF THE PARTIES HAD PREPARED IT TOGETHER AND NOT STRICTLY FOR OR
AGAINST ANY PARTY.
ALL REFERENCES IN THIS AGREEMENT TO SECTIONS, SCHEDULES AND
EXHIBITS ARE