8.5(C) SHALL NOT APPLY TO LIMIT THE LIABILITY OF SELLER FOR ANY OF THE
RETAINED SELLER LIABILITIES OR TAX CLAIMS.
(D)
NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT TO THE CONTRARY, IF SELLER HAS COMMITTED FRAUD, THERE SHALL BE NO
LIMITATIONS UNDER THIS AGREEMENT ON SELLER'S LIABILITY FOR INDEMNITY OR
OTHERWISE.
(E)
PURCHASER SHALL USE COMMERCIALLY REASONABLE
EFFORTS TO MITIGATE ANY LOSS SUFFERED, INCURRED OR SUSTAINED BY PURCHASER
ARISING OUT OF ANY MATTER FOR WHICH PURCHASER IS ENTITLED TO INDEMNIFICATION
HEREIN, UPON PURCHASER HAVING OBTAINED ACTUAL KNOWLEDGE OF SUCH BREACH BY
SELLER.
IN THE EVENT THAT PURCHASER SHALL FAIL TO MAKE SUCH COMMERCIALLY
REASONABLE EFFORTS TO MITIGATE SUCH LOSS, THEN NOTWITHSTANDING ANYTHING ELSE TO
THE CONTRARY CONTAINED HEREIN, SELLER SHALL NOT BE REQUIRED TO INDEMNIFY
PURCHASER FOR ANY LOSS THAT COULD REASONABLY BE EXPECTED TO HAVE BEEN AVOIDED
HAD PURCHASER MADE SUCH EFFORTS.
(F)
IN CALCULATING THE AMOUNT OF ANY LOSS FOR
WHICH ANY INDEMNIFYING PERSON IS LIABLE UNDER THIS ARTICLE VIII, THERE SHALL BE
DEDUCTED (I) THE AMOUNT OF ANY INSURANCE RECOVERIES, EXCLUDING ANY AMOUNTS WHICH
ARE IN EFFECT SELF-INSURED WHETHER THROUGH RETENTION AMOUNTS OR OTHERWISE, THE
INDEMNIFIED PERSON IN FACT RECEIVES AS A DIRECT CONSEQUENCE OF THE CIRCUMSTANCES
TO WHICH THE LOSS RELATED OR FROM WHICH THE LOSS RESULTED OR AROSE; AND (II) ANY
INDEMNIFICATION, CONTRIBUTION OR OTHER SIMILAR PAYMENT ACTUALLY RECOVERED BY THE
INDEMNIFIED PERSON FROM ANY THIRD-PARTY WITH RESPECT THERETO.
THE INDEMNIFIED
PERSON AGREES TO FIRST MAKE CLAIM AGAINST ANY APPLICABLE INSURANCE COVERAGE,
INCLUDING, IF APPLICABLE, THE INSURANCE COVERAGE FOR THE COMPANY TO SEEK
RECOVERY FOR ANY LOSS, AND THE INDEMNIFYING PERSON SHALL HAVE THE RIGHT TO
PURSUE SUCH RECOVERY AGAINST ANY SUCH INSURANCE COVERAGE IN THE NAME OF THE
INSURED.
SELLER, PURCHASER AND THE COMPANY HEREBY MUTUALLY WAIVE ALL EXPRESS
AND/OR IMPLIED SUBROGATION RIGHTS, AND ASSIGNMENT OF SUCH RIGHTS, AGAINST EACH
OTHER IN REGARD TO ANY SUCH INSURANCE CLAIM. THE ABOVE-REQUIRED WAIVERS SHALL
ALSO EXTEND TO ALL AFFILIATES OF SELLER, PURCHASER, AND THE COMPANY, AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES.
ANY SUCH AMOUNTS OR
BENEFITS RECEIVED BY AN INDEMNIFIED PERSON WITH RESPECT TO ANY INDEMNITY CLAIM
AFTER IT HAS RECEIVED AN INDEMNITY PAYMENT HEREUNDER SHALL BE PROMPTLY PAID OVER
TO THE INDEMNIFYING PERSON, BUT NOT IN EXCESS OF THE AMOUNT PAID BY THE
INDEMNIFYING PERSON TO THE INDEMNIFIED PERSON WITH RESPECT TO SUCH CLAIM.
FOR
PURPOSES OF DETERMINING THE INSURANCE RECOVERIES, IF PURCHASER ELECTS NOT TO
MAINTAIN INSURANCE COVERAGE IDENTICAL TO THE INSURANCE COVERAGE OF THE
44
COMPANY MAINTAINED BY SELLER AS OF THE CLOSING DATE, PURCHASER AND THE COMPANY
SHALL BE DEEMED TO HAVE RECEIVED INSURANCE BENEFITS EQUAL TO THE GREATER OF THE
INSURANCE BENEFITS PURCHASER AND/OR COMPANY, AS THE CASE MAY BE, WOULD HAVE
RECEIVED HAD IT MAINTAINED SUCH INSURANCE POLICIES IN EFFECT AFTER THE CLOSING
OR THE INSURANCE BENEFITS IT ACTUALLY RECEIVES.
(G)
IN THE EVENT THAT (I) ANY CONDITION SET FORTH IN
ARTICLE VI IS NOT SATISFIED, (II) THE FAILURE OF SUCH CONDITION TO BE SATISFIED
IS WAIVED