Xxxxxxx Xxxx Distribution. Buyer and Seller acknowledge and agree that Seller and AHFC are party to litigation with Xxxxxxx X. Xxxx and Company (“Bird”) related to the termination of Bird as a flooring distributor for resilient and hardwood products (the “Bird Litigation”) pursuant to which Seller and AHFC are seeking to recover certain amounts payable by Bird and Bird has filed counterclaims against Seller and AHFC. From and after the Closing, Buyer shall, and shall cause AHFC to, cooperate reasonably with Seller, upon reasonable advance notice, in connection with the conduct of the Bird Litigation and any related proceeding, including by, without limitation, (a) providing Seller and its representatives with reasonable access during normal business hours (in a manner so as to not unreasonably interfere with normal Business operations) to AHFC and its officers, directors, employees and agents for fact finding, consultation and interviews and as witnesses to provide testimony through declarations, affidavits, depositions, witness statements or at hearing or trial and to cooperate reasonably with Seller in preparation for such events, at the sole cost and expense of Seller with respect to all reasonable and documented out-of-pocket expenses, consistent with deadlines imposed in the Bird Litigation, (b) maintaining and preserving all documents and information known to be relevant to the Bird Litigation, and providing Seller with reasonable access thereto, and (c) taking such actions as Seller may reasonably request in order to mitigate damages. The parties further acknowledge and agree that Seller shall (i) control the Bird Litigation and shall be entitled to, and Buyer shall cause the Company and the Company Subsidiaries promptly to pay to Seller, any amounts received by the Company or any Company Subsidiary in respect of, any damages awarded to or other amounts payable to Seller or any of its affiliates (including the Company and the Company Subsidiaries) in respect of any resolution or settlement of the Bird Litigation, and (ii) pay all costs and expenses (including attorney fees), and indemnify and hold harmless AHFC in respect of, the Bird Litigation. In the event that Seller and/or AHFC are required pursuant to the terms of any resolution or settlement of the Bird Litigation to repurchase inventory from Bird, and Seller requests that Buyer and/or AHFC purchase such inventory from Seller, Buyer and/or AHFC shall reasonably and in good faith consider Seller’s request to purchase su...
