ANY INSTRUMENT, CERTIFICATE OR AFFIDAVIT
DELIVERED AT THE CLOSING WITH RESPECT THERETO) SHALL BE CONSIDERED WITHOUT
REGARD TO ANY QUALIFICATION BASED ON MATERIALITY OR "MATERIAL ADVERSE EFFECT"
SET FORTH THEREIN.
(E)
THE AMOUNT TO WHICH A SELLER-INDEMNIFIED PERSON MAY BECOME ENTITLED
UNDER THIS ARTICLE VIII SHALL BE NET OF ANY ACTUAL RECOVERY (WHETHER BY WAY OF
PAYMENT, DISCOUNT, CREDIT, OFF-SET, COUNTERCLAIM OR OTHERWISE) RECEIVED FROM A
THIRD PARTY (INCLUDING ANY INSURER) LESS ANY COST ASSOCIATED WITH RECEIVING SUCH
RECOVERY IN RESPECT OF A CLAIM.
TO THE EXTENT THAT INSURANCE, "PASS-THROUGH"
WARRANTY COVERAGE FROM A MANUFACTURER OR OTHER FORM OF RECOVERY OR REIMBURSEMENT
FROM A THIRD PARTY IS AVAILABLE TO ANY SELLER-INDEMNIFIED PERSON TO COVER ANY
ITEM FOR WHICH INDEMNIFICATION MAY BE SOUGHT HEREUNDER, PURCHASER SHALL, OR
SHALL CAUSE EACH OTHER SELLER-INDEMNIFIED PERSON TO, ON A TIMELY AND EXPEDITIOUS
BASIS, USE COMMERCIALLY REASONABLE EFFORTS TO EFFECT RECOVERY UNDER APPLICABLE
INSURANCE POLICIES, AND USE COMMERCIALLY REASONABLE EFFORTS TO PURSUE TO
CONCLUSION AVAILABLE REMEDIES OR CAUSES OF ACTION TO RECOVER THE AMOUNT OF ITS
CLAIM AS MAY BE AVAILABLE FROM SUCH OTHER PARTY; PROVIDED THAT THE AVAILABILITY
OF A POTENTIAL RECOVERY AGAINST SUCH A THIRD PARTY SHALL NOT AFFECT PURCHASER'S
RIGHT TO MAKE A CLAIM FOR INDEMNITY PURSUANT TO THIS SECTION 8.1.
TO THE EXTENT
OF ANY INDEMNIFICATION WITH RESPECT TO ANY CLAIM REFERRED TO IN THE PREVIOUS
SENTENCE, PURCHASER SHALL ASSIGN, AND PURCHASER SHALL CAUSE EACH OTHER
SELLER-INDEMNIFIED PERSON TO ASSIGN, TO SELLERS, TO THE FULLEST EXTENT
ALLOWABLE, ITS CLAIM AGAINST SUCH INSURANCE, WARRANTY COVERAGE OR THIRD-PARTY
CLAIM, OR IN THE EVENT ASSIGNMENT IS NOT PERMISSIBLE, BUT PURCHASER OR THE OTHER
SELLER-INDEMNIFIED PERSON IN QUESTION IS NONETHELESS PERMITTED TO PURSUE SUCH
CLAIM ON SELLERS' BEHALF, PURCHASER SHALL PURSUE, OR SHALL CAUSE SUCH OTHER
SELLER-INDEMNIFIED PERSON TO PURSUE, SUCH CLAIM, AT SELLERS' DIRECTION AND
EXPENSE AND WITHOUT ADDITIONAL OUT-OF-POCKET EXPENSE TO ANY SELLER-INDEMNIFIED
PERSON, WITH
42
any recovery thereon to be transmitted promptly to Sellers upon receipt.
To the
extent that indemnification has not been paid on account of any such claim, any
Seller-Indemnified Person may pursue recovery against such insurance warranty
coverage or third party and shall be entitled to retain all recoveries made as a
result of any such action.
Purchaser shall, and shall cause the Companies to,
furnish Sellers with such information respecting the assets, business and
financial records of Purchaser and the Companies relating to any such claims as
Sellers may, from time to time, reasonably request and at the sole cost and
expense of Sellers.
After the Closing, Purchaser shall maintain in effect, or
will cause the Companies to maintain in effect, in each case until the Survival
Date, or for such longer time as there remains a Contested Claim, insurance
coverage in amounts, and with coverage, not materially less favorable to the
Companies than the insurance coverage as maintained by the Companies as of the
date of this Agreement.
In addition, the amount to which the Seller-Indemnified
Persons may become entitled under this Article VIII shall