Common use of Assumption and Indemnification Clause in Contracts

Assumption and Indemnification. (a) Subject to Sections 4.02 and 4.03(c) and except as expressly provided in the Ancillary Agreements, from and after the Distribution Date, Sun and Sabra shall retain or assume, as the case may be, and shall indemnify, defend and hold harmless each member of the New Sun Group, and each of their Representatives and Affiliates, from and against, (i) all Sabra Liabilities, (ii) the use and operation of the Sabra Assets by Sabra following the Distribution, (iii) all Losses arising from or relating to or due to the failure to pay, perform or discharge in due course the Sabra Liabilities by any member of the Sabra Group who has an obligation with respect thereto and (iv) all Losses arising from or relating to any breach or violation of the covenants made in this Agreement by Sabra. (b) Subject to Sections 4.02 and 4.03(c) and except as expressly provided in the Ancillary Agreements, from and after the Distribution Date, New Sun shall retain or assume, as the case may be, and shall indemnify, defend and hold harmless the Sabra Indemnified Parties from and against, (i) all New Sun Liabilities, (ii) the use and operation of the New Sun Assets by New Sun following the Distribution, (iii) any and all Losses arising from or relating to or due to the failure to pay, perform or discharge in due course the New Sun Liabilities by any member of the New Sun Group who has an obligation with respect thereto and (iv) all Losses arising from or relating to any breach or violation of the covenants made in this Agreement by New Sun. (c) The amount which an Indemnifying Party is required to pay to any Indemnitee pursuant to Sections 4.03(a) or (b) shall be reduced (including, without limitation, retroactively) by any Insurance Proceeds and other amounts (including, without limitation, amounts received from Third Parties in respect of other indemnification or contribution obligations of Third Parties) actually recovered by such Indemnitee in reduction of the related Indemnifiable Loss, it being understood and agreed that each member of the Sabra Group and the New Sun Group shall use its commercially reasonable efforts, at the expense of the Indemnifying Party, to collect any such proceeds or other such amounts to which it or any of its Subsidiaries is entitled, without regard to whether it is the Indemnitee hereunder. If an Indemnitee receives an Indemnity Payment in respect of an Indemnifiable Loss and subsequently receives Insurance Proceeds or other amounts in respect of such Indemnifiable Loss, then such Indemnitee shall pay to such Indemnifying Party an amount equal to the difference between (i) the sum of the amount of any Indemnity Payment and the amount of any Insurance Proceeds or other amounts actually received and (ii) the amount of the Indemnifiable Loss. An insurer or a Third Party (including, without limitation, purchasers under any asset purchase agreements, real estate agreements or any other agreements relating to New Sun Liabilities or Sabra Liabilities) who would otherwise be obligated to pay any claim shall not be relieved of the responsibility with respect thereto, or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer or any other Third Party shall be entitled to a benefit it would not otherwise be entitled to receive in the absence of the indemnification provisions set forth herein. (d) On the Distribution Date, New Sun shall assume (or shall cause one of its Subsidiaries to assume) (i) the prosecution of all claims which relate to the Healthcare Business that are either pending on or arise after the Distribution Date; (ii) in conjunction with Sabra pursuant to Section 4.03(e), the defense against all Third Party Claims arising from or relating to the Distribution or the REIT Conversion Merger; and (iii) the defense against all Third Party Claims which are New Sun Liabilities and are either pending on or arise after the Distribution Date. Sabra shall use commercially reasonable efforts to make available and shall cause its Subsidiaries to use commercially reasonable efforts to make available to New Sun and its Subsidiaries, at New Sun’s expense, (x) any personnel or any books, records or other documents within its control or which it otherwise has the ability to make available that New Sun or such Subsidiary reasonably believes are necessary or appropriate for such prosecution or defense as provided in this Article IV; and (y) such other assistance in support of the prosecution or defense of such litigation as New Sun or its Subsidiaries may reasonably request, including without limitation, the right to assert in the name of Sabra or any of its Subsidiaries such rights, claims, counterclaims or defenses that Sabra or any Sabra Subsidiary would be or would have been entitled to assert in such litigation or in the prosecution of or defense against such claim had the Distribution not occurred; provided, however, that no member of the Sabra Group shall be required to take any action, refrain from taking any action or make available any assistance if doing so would have the effect of increasing Liabilities of the Sabra Group. (e) On the Distribution Date, Sabra shall assume (or shall cause one of its Subsidiaries to assume) (i) the prosecution of all claims which relate to the Real Estate Business that are either pending on or arise after the Distribution Date; (ii) in conjunction with New Sun pursuant to Section 4.03(d), the defense against all Third Party Claims arising from or relating to the Distribution or the REIT Conversion Merger; and (iii) the defense against all Third Party Claims which are Sabra Liabilities and are either pending on or arise after the Distribution Date. New Sun shall use commercially reasonable efforts to make available and shall cause its Subsidiaries to use commercially reasonable efforts to make available to Sabra and its Subsidiaries, at Sabra’s expense, (x) any personnel or any books, records or other documents within its control or which it otherwise has the ability to make available that Sabra or such Subsidiary reasonably believes are necessary or appropriate for such prosecution or defense as provided in this Article IV; and (y) such other assistance in support of the prosecution or defense of such litigation as Sabra or its Subsidiaries may reasonably request, including without limitation, the right to assert in the name of New Sun or any of its Subsidiaries such rights, claims, counterclaims or defenses that New Sun or any New Sun Subsidiary would be or would have been entitled to assert in such litigation or in the prosecution of or defense against such claim had the Distribution not occurred; provided, however, that no member of the New Sun Group shall be required to take any action, refrain from taking any action or make available any assistance if doing so would have the effect of increasing Liabilities of the New Sun Group.

Assumption and Indemnification. (a) Subject to Sections 4.02 and 4.03(c) and except as expressly provided in the Ancillary AgreementsSection 4.1(c), from and after the Distribution Closing Date, Sun and Sabra shall retain or assume, as the case may be, and shall Zapaxx xxxll indemnify, defend and hold harmless each member of the New Sun GroupZAP.XXX Xxxup, and each of their Representatives and Affiliateseach of the heirs, executors, successors and assigns of any of the foregoing from and againstagainst all Indemnifiable Losses of any such member or Representative relating to, arising out of or due to any untrue statement or alleged untrue statement of a material fact contained in any Rights Offering Document or the omission or alleged omission to state in any of the Rights Offering Documents a material fact required to be stated therein or necessary to make the statements therein not misleading, but only insofar as any such statement or omission was made with respect to (i) all Sabra Liabilities, a matter of historical fact relating to a member of the Zapaxx Xxxup or (ii) the use and operation present or future intentions of the Sabra Assets by Sabra following the Distribution, (iii) all Losses arising from or relating to or due to the failure to pay, perform or discharge in due course the Sabra Liabilities by Zapaxx xx any member of the Sabra Group who has an obligation Zapaxx Xxxup, in reliance upon and in conformity with respect thereto and (iv) all Losses arising from or relating to any breach or violation information furnished by Zapaxx xx writing specifically for use in connection with the preparation of the covenants made Rights Offering Documents and designated in this Agreement by Sabrasuch writing as having been so furnished. (b) Subject to Sections 4.02 and 4.03(c) and except as expressly provided in the Ancillary AgreementsSection 4.1(c), from and after the Distribution Closing Date, New Sun ZAP.XXX xxxll indemnify, defend and hold harmless each member of the Zapaxx Xxxup, each of their Representatives and each of the heirs, executors, successors and assigns of any of the foregoing from and against all Indemnifiable Losses of any such member or Representative relating to, arising out of or due to any untrue statement or alleged untrue statement of a material fact contained in any Rights Offering Document or the omission or alleged omission to state in any of the Rights Offering Documents a material fact required to be (c) If an Indemnitee realizes a Tax benefit or detriment by reason of having incurred an Indemnifiable Loss for which such Indemnitee receives an Indemnity Payment from an Indemnifying Party or by reason of receiving an Indemnity Payment, then such Indemnitee shall retain pay to such Indemnifying Party an amount equal to the Tax benefit, or assumesuch Indemnifying Party shall pay to such Indemnitee an additional amount equal to the Tax detriment (taking into account any Tax detriment resulting from the receipt of such additional amounts), as the case may be. If, in the opinion of counsel to an Indemnifying Party reasonably satisfactory in form and substance to the affected Indemnitee, there is a substantial likelihood that the Indemnitee will be entitled to a Tax benefit by reason of an Indemnifiable Loss, the Indemnifying Party promptly shall notify the Indemnitee and the Indemnitee promptly shall take any steps (including the filing of such returns, amended returns or claims for refunds consistent with the claiming of such Tax benefit) that, in the reasonable judgment of the Indemnifying Party, are necessary and appropriate to obtain any such Tax benefit. If, in the opinion of counsel to an Indemnitee reasonably satisfactory in form and substance to the affected Indemnifying Party, there is a substantial likelihood that the Indemnitee will be subjected to a Tax detriment by reason of an Indemnification Payment, the Indemnitee promptly shall notify the Indemnifying Party and the Indemnitee promptly shall take any steps (including the filing of such returns or amended returns or the payment of Tax underpayments consistent with the settlement of any liability for Taxes arising from such Tax detriment) that, in the reasonable judgment of the Indemnitee, are necessary and appropriate to settle any liabilities for Taxes arising from such Tax detriment. If, following a payment by an Indemnitee or an Indemnifying Party pursuant to this Section 3.1(c) in respect of a Tax benefit or detriment, there is an adjustment to the amount of such Tax benefit or detriment, then each of Zapaxx xxx ZAP.XXX xxxll make appropriate payments to the other, including the payment of interest thereon at the federal statutory rate then in effect, to reflect such adjustment. This Section 3.1(c) shall govern the matters discussed in this Section and shall indemnify, defend control over any conflicting language in the Tax Sharing and hold harmless the Sabra Indemnified Parties from and against, (i) all New Sun Liabilities, (ii) the use and operation of the New Sun Assets by New Sun following the Distribution, (iii) any and all Losses arising from or relating to or due to the failure to pay, perform or discharge in due course the New Sun Liabilities by any member of the New Sun Group who has an obligation with respect thereto and (iv) all Losses arising from or relating to any breach or violation of the covenants made in this Agreement by New SunIndemnification Agreement. (cd) The amount which an Indemnifying Party is required to pay to any Indemnitee pursuant to Sections 4.03(a) or (b) this Section 3.1 shall be reduced (including, without limitation, including retroactively) by any Insurance Proceeds and other amounts (including, without limitation, amounts received from Third Parties in respect of other indemnification or contribution obligations of Third Parties) actually recovered by such Indemnitee in reduction of the related Indemnifiable Loss, it being understood and agreed that each member of the Sabra Group and the New Sun Group shall . Zapaxx xxx ZAP.XXX xxxll use its commercially reasonable efforts, at the expense of the Indemnifying Party, their respective best efforts to collect any such proceeds Insurance Proceeds or other such amounts to which it they or any of its their Subsidiaries is are entitled, without regard to whether it is they are the Indemnitee Indemnifying Party hereunder. If an Indemnitee receives an Indemnity Payment in respect of an Indemnifiable Loss and subsequently receives Insurance Proceeds or other amounts in respect of such Indemnifiable Loss, then such Indemnitee shall pay to such Indemnifying Party an amount equal to the difference between (i) the sum of the amount of any Indemnity Payment and the amount of any Insurance Proceeds or other amounts actually received and (ii) the amount of the Indemnifiable Loss. An insurer or a Third Party (including, without limitation, purchasers under any asset purchase agreements, real estate agreements or any other agreements relating to New Sun Liabilities or Sabra Liabilities) who would otherwise be obligated to pay any claim shall not be relieved of the responsibility with respect thereto, or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer or any other Third Party shall be entitled to a benefit it would not otherwise be entitled to receive in the absence of the indemnification provisions set forth herein. (d) On the Distribution Date, New Sun shall assume (or shall cause one of its Subsidiaries to assume) (i) the prosecution of all claims which relate to the Healthcare Business that are either pending on or arise after the Distribution Date; (ii) in conjunction with Sabra pursuant to Section 4.03(e), the defense against all Third Party Claims arising from or relating to the Distribution or the REIT Conversion Merger; and (iii) the defense against all Third Party Claims which are New Sun Liabilities and are either pending on or arise after the Distribution Date. Sabra shall use commercially reasonable efforts to make available and shall cause its Subsidiaries to use commercially reasonable efforts to make available to New Sun and its Subsidiaries, at New Sun’s expense, (x) any personnel or any books, records or other documents within its control or which it otherwise has the ability to make available that New Sun or such Subsidiary reasonably believes are necessary or appropriate for such prosecution or defense as provided in this Article IV; and (y) such other assistance in support of the prosecution or defense of such litigation as New Sun or its Subsidiaries may reasonably request, including without limitation, the right to assert in the name of Sabra or any of its Subsidiaries such rights, claims, counterclaims or defenses that Sabra or any Sabra Subsidiary would be or would have been entitled to assert in such litigation or in the prosecution of or defense against such claim had the Distribution not occurred; provided, however, that no member of the Sabra Group shall be required to take any action, refrain from taking any action or make available any assistance if doing so would have the effect of increasing Liabilities of the Sabra Group. (e) On the Distribution Date, Sabra shall assume (or shall cause one of its Subsidiaries to assume) (i) the prosecution of all claims which relate to the Real Estate Business that are either pending on or arise after the Distribution Date; (ii) in conjunction with New Sun pursuant to Section 4.03(d), the defense against all Third Party Claims arising from or relating to the Distribution or the REIT Conversion Merger; and (iii) the defense against all Third Party Claims which are Sabra Liabilities and are either pending on or arise after the Distribution Date. New Sun shall use commercially reasonable efforts to make available and shall cause its Subsidiaries to use commercially reasonable efforts to make available to Sabra and its Subsidiaries, at Sabra’s expense, (x) any personnel or any books, records or other documents within its control or which it otherwise has the ability to make available that Sabra or such Subsidiary reasonably believes are necessary or appropriate for such prosecution or defense as provided in this Article IV; and (y) such other assistance in support of the prosecution or defense of such litigation as Sabra or its Subsidiaries may reasonably request, including without limitation, the right to assert in the name of New Sun or any of its Subsidiaries such rights, claims, counterclaims or defenses that New Sun or any New Sun Subsidiary would be or would have been entitled to assert in such litigation or in the prosecution of or defense against such claim had the Distribution not occurred; provided, however, that no member of the New Sun Group shall be required to take any action, refrain from taking any action or make available any assistance if doing so would have the effect of increasing Liabilities of the New Sun Group.Indemnifiable

Assumption and Indemnification. (a) Subject to Sections 4.02 3.02 and 4.03(c3.03(c) and except as expressly provided in the Ancillary Agreements, from and after the Distribution Date, Sun and Sabra Vencor shall retain or assume, as the case may be, and shall indemnify, defend and hold harmless each member of the New Sun Healthcare Company Group, and each of their Representatives and Affiliates, from and against, net of any Tax benefit accruing to any Indemnified Party relating thereto, (i) all Sabra Liabilities, Vencor Liabilities (ii) the use and operation of the Sabra Vencor Assets by Sabra Vencor following the Distribution, Distribution and (iii) all Losses of any such member of the Healthcare Company Group, Representative or Affiliate relating to, arising from or relating to out of or due to the failure to pay, perform or discharge in due course the Sabra Vencor Liabilities by any member of the Sabra Vencor Group who has an obligation with respect thereto and (iv) all Losses arising from or relating to any breach or violation of the covenants made in this Agreement by Sabrathereto. (b) Subject to Sections 4.02 Section 3.02 and 4.03(c3.03 (c) and except as expressly provided in the Ancillary Agreements, from and after the Distribution Date, New Sun Healthcare Company shall retain or assume, as the case may be, and shall indemnify, defend and hold harmless each member of the Sabra Indemnified Parties Vencor Group, and each of their Representatives and Affiliates, from and against, (i) all New Sun Healthcare Company Liabilities, (ii) the use and operation of the New Sun Healthcare Company Assets by New Sun Healthcare Company following the Distribution, and (iii) any and all Losses of any such member of the Vencor Group, Representative or Affiliate relating to, arising from or relating to out of or due to the failure to pay, perform or discharge in due course the New Sun Healthcare Company Liabilities by any member of the New Sun Healthcare Company Group who has an obligation with respect thereto and (iv) all Losses arising from or relating to any breach or violation of the covenants made in this Agreement by New Sunthereto. (c) The amount which an Indemnifying Party is required to pay to any Indemnitee pursuant to Sections 4.03(aSection 3.03(a) or (b) shall be reduced (including, without limitation, retroactively) by any Insurance Proceeds and other amounts (including, without limitation, amounts received from Third Parties in respect of other indemnification or contribution obligations of Third Parties) actually recovered by such Indemnitee in reduction of the related Indemnifiable Loss, it being understood and agreed that each member of the Sabra Vencor Group and the New Sun Healthcare Company Group shall use its commercially reasonable best efforts, at the expense of the Indemnifying Party, to collect any such proceeds or other such amounts to which it or any of its Subsidiaries is entitled, without regard to whether it is the Indemnitee Indemnified Party hereunder. If an Indemnitee receives an Indemnity Payment in respect of an Indemnifiable Loss and subsequently receives Insurance Proceeds or other amounts in respect of such Indemnifiable Loss, then such Indemnitee shall pay to such Indemnifying Party an amount equal to the difference between (i) the sum of the amount of any such Indemnity Payment and the amount of any such Insurance Proceeds or other amounts actually received and (ii) the amount of the such Indemnifiable Loss. An insurer or a Third Party (including, without limitation, purchasers under any asset assets purchase agreements, real estate agreements or any other agreements relating to New Sun Healthcare Company Liabilities or Sabra Vencor Liabilities) who would otherwise be obligated to pay any claim shall not be relieved of the responsibility with respect thereto, or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer or any other Third Party shall be entitled to a benefit it they would not otherwise be entitled to receive in the absence of the indemnification provisions set forth hereinherein by virtue of the indemnification provisions hereof. (d) On the Distribution Date, New Sun Healthcare Company shall assume (or shall cause one of its Subsidiaries to assume) (i) the prosecution of all claims which relate to the Healthcare Business that and are either pending on or arise after the Distribution Date; and (ii) in conjunction with Sabra pursuant to Section 4.03(e), the defense against all Third Party Claims arising from or relating to the Distribution or the REIT Conversion Merger; and (iii) the defense against all Third Party Claims which are New Sun Healthcare Company Liabilities and are either pending on or arise after the Distribution Date. Sabra Vencor shall use commercially reasonable efforts to make available and shall cause its Subsidiaries to use commercially reasonable efforts to make available to New Sun and its Subsidiaries, at New Sun’s expense, (x) any personnel or any books, records or other documents within its control or which it otherwise has the ability to make available that New Sun or such Subsidiary reasonably believes are necessary or appropriate for such prosecution or defense as provided in this Article IV; and (y) such other assistance in support of the prosecution or defense of such litigation as New Sun or its Subsidiaries may reasonably request, including without limitation, the right to assert in the name of Sabra or any of its Subsidiaries such rights, claims, counterclaims or defenses that Sabra or any Sabra Subsidiary would be or would have been entitled to assert in such litigation or in the prosecution of or defense against such claim had the Distribution not occurred; provided, however, that no member of the Sabra Group shall be required to take any action, refrain from taking any action or make available any assistance if doing so would have the effect of increasing Liabilities of the Sabra Group. (e) On the Distribution Date, Sabra shall assume (or shall cause one of its Subsidiaries to assume) (i) the prosecution of all claims which relate to the Real Estate Business that are either pending on or arise after the Distribution Date; (ii) in conjunction with New Sun pursuant to Section 4.03(d), the defense against all Third Party Claims arising from or relating to the Distribution or the REIT Conversion Merger; and (iii) the defense against all Third Party Claims which are Sabra Liabilities and are either pending on or arise after the Distribution Date. New Sun shall use commercially reasonable efforts to make available and shall cause its Subsidiaries to use commercially reasonable efforts to make available to Sabra and its Subsidiaries, at Sabra’s expense, (x) any personnel or any books, records or other documents within its control or which it otherwise has the ability to make available that Sabra or such Subsidiary reasonably believes are necessary or appropriate for such prosecution or defense as provided in this Article IV; and (y) such other assistance in support of the prosecution or defense of such litigation as Sabra or its Subsidiaries may reasonably request, including without limitation, the right to assert in the name of New Sun or any of its Subsidiaries such rights, claims, counterclaims or defenses that New Sun or any New Sun Subsidiary would be or would have been entitled to assert in such litigation or in the prosecution of or defense against such claim had the Distribution not occurred; provided, however, that no member of the New Sun Group shall be required to take any action, refrain from taking any action or make available any assistance if doing so would have the effect of increasing Liabilities of the New Sun Group.A-11

Assumption and Indemnification. (a) Subject to Sections 4.02 and 4.03(c) and except as expressly provided in the Ancillary AgreementsSection 3.1(c), from and after the Distribution Closing Date, Sun Zapaxx xxxll indemnify, defend and Sabra shall retain hold harmless each member of the Protein Group, each of their Representatives and each of the heirs, executors, successors and assigns of any of the foregoing from and against all Indemnifiable Losses of any such member or assumeRepresentative relating to, arising out of or due to any untrue statement or alleged untrue statement of a material fact contained in any Offering Document or the omission or alleged omission to state in any of the Offering Documents a material fact required to be stated therein or necessary to make the statements therein not misleading, but only insofar as any such statement or omission was made with respect to (A) a matter of historical fact relating to a member of the case may beZapaxx Xxxup or (B) the present or future intentions of Zapaxx xx any member of the Zapaxx Xxxup, in reliance upon and in conformity with information furnished by Zapaxx xx writing specifically for use in connection with the preparation of the Offering Documents and designated in such writing as having been so furnished. (b) Subject to Section 3.1(c), from and after the Closing Date, Protein shall indemnify, defend and hold harmless each member of the New Sun GroupZapaxx Xxxup, and each of their Representatives and Affiliateseach of the heirs, executors, successors and assigns of any of the foregoing from and againstagainst all Indemnifiable Losses of any such member or Representative relating to, arising out of or due to any untrue statement or alleged untrue statement of a material fact contained in any Offering Document or the omission or alleged omission to state in any of the Offering Documents a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that Protein will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made with respect to (i) all Sabra Liabilities, a matter of historical fact relating to a member of the Zapaxx Xxxup or (ii) the use and operation present or future intentions of the Sabra Assets by Sabra following the Distribution, (iii) all Losses arising from or relating to or due to the failure to pay, perform or discharge in due course the Sabra Liabilities by Zapaxx xx any member of the Sabra Group who has an obligation Zapaxx Xxxup, in reliance upon and in conformity with respect thereto and (iv) all Losses arising from or relating to any breach or violation information furnished by Zapaxx xx writing specifically for use in connection with the preparation of the covenants made Offering Documents and designated in this Agreement by Sabrasuch writing as having been so furnished. (bc) Subject If an Indemnitee realizes a Tax benefit or detriment by reason of having incurred an Indemnifiable Loss for which such Indemnitee receives an Indemnity Payment from an Indemnifying Party or by reason of receiving an Indemnity Payment, then such Indemnitee shall pay to Sections 4.02 and 4.03(c) and except as expressly provided in such Indemnifying Party an amount equal to the Ancillary AgreementsTax benefit, or such Indemnifying Party shall pay to such Indemnitee an additional amount equal to the Tax detriment (taking into account any Tax detriment resulting from and after the Distribution Date, New Sun shall retain or assumereceipt of such additional amounts), as the case may be. If, in the opinion of counsel to an Indemnifying Party reasonably satisfactory in form and substance to the affected Indemnitee, there is a substantial likelihood that the Indemnitee will be entitled to a Tax benefit by reason of an Indemnifiable Loss, the Indemnifying Party promptly shall notify the Indemnitee and the Indemnitee promptly shall take any steps (including the filing of such returns, amended returns or claims for refunds consistent with the claiming of such Tax benefit) that, in the reasonable judgment of the Indemnifying Party, are necessary and appropriate to obtain any such Tax benefit. If, in the opinion of counsel to an Indemnitee reasonably satisfactory in form and substance to the affected Indemnifying Party, there is a substantial likelihood that the Indemnitee will be subjected to a Tax detriment by reason of an Indemnification Payment, the Indemnitee promptly shall notify the Indemnifying Party and the Indemnitee promptly shall take any steps (including the filing of such returns or amended returns or the payment of Tax underpayments consistent with the settlement of any liability for Taxes arising from such Tax detriment) that, in the reasonable judgment of the Indemnitee, are necessary and appropriate to settle any liabilities for Taxes arising from such Tax detriment. If, following a payment by an Indemnitee or an Indemnifying Party pursuant to this Section 3.1(c) in respect of a Tax benefit or detriment, there is an adjustment to the amount of such Tax benefit or detriment, then each of Zapaxx xxx Protein shall make appropriate payments to the other, including the payment of interest thereon at the federal statutory rate then in effect, to reflect such adjustment. This Section 3.1(c) shall govern the matters discussed in this Section and shall indemnify, defend and hold harmless control over any conflicting language in the Sabra Indemnified Parties from and against, (i) all New Sun Liabilities, (ii) the use and operation of the New Sun Assets by New Sun following the Distribution, (iii) any and all Losses arising from or relating to or due to the failure to pay, perform or discharge in due course the New Sun Liabilities by any member of the New Sun Group who has an obligation with respect thereto and (iv) all Losses arising from or relating to any breach or violation of the covenants made in this Agreement by New SunTax Indemnification Agreement. (cd) The amount which an Indemnifying Party is required to pay to any Indemnitee pursuant to Sections 4.03(a) or (b) this Section 3.1 shall be reduced (including, without limitation, including retroactively) by any Insurance Proceeds and other amounts (including, without limitation, amounts received from Third Parties in respect of other indemnification or contribution obligations of Third Parties) actually recovered by such Indemnitee in reduction of the related Indemnifiable Loss, it being understood and agreed that each member of the Sabra Group and the New Sun Group . Zapaxx xxx Protein shall use its commercially reasonable efforts, at the expense of the Indemnifying Party, their respective best efforts to collect any such proceeds Insurance Proceeds or other such amounts to which it they or any of its their Subsidiaries is are entitled, without regard to whether it is they are the Indemnitee Indemnifying Party hereunder. If an Indemnitee receives an Indemnity Payment in respect of an Indemnifiable Loss and subsequently receives Insurance Proceeds or other amounts in respect of such Indemnifiable Loss, then such Indemnitee shall pay to such Indemnifying Party an amount equal to the difference between (i) the sum of the amount of any such Indemnity Payment and the amount of any such Insurance Proceeds or other amounts actually received and (ii) the amount of the such Indemnifiable Loss. An insurer or a Third Party , adjusted (including, without limitation, purchasers under any asset purchase agreements, real estate agreements or any other agreements relating to New Sun Liabilities or Sabra Liabilities) who would otherwise at such time as appropriate adjustment can be obligated to pay any claim shall not be relieved of the responsibility with respect thereto, or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer or any other Third Party shall be entitled to a benefit it would not otherwise be entitled to receive in the absence of the indemnification provisions set forth herein. (d) On the Distribution Date, New Sun shall assume (or shall cause one of its Subsidiaries to assume) (i) the prosecution of all claims which relate to the Healthcare Business that are either pending on or arise after the Distribution Date; (iidetermined) in conjunction with Sabra pursuant each case to Section 4.03(e), the defense against all Third Party Claims arising from or relating reflect any premium adjustment attributable to the Distribution or the REIT Conversion Merger; and (iii) the defense against all Third Party Claims which are New Sun Liabilities and are either pending on or arise after the Distribution Date. Sabra shall use commercially reasonable efforts to make available and shall cause its Subsidiaries to use commercially reasonable efforts to make available to New Sun and its Subsidiaries, at New Sun’s expense, (x) any personnel or any books, records or other documents within its control or which it otherwise has the ability to make available that New Sun or such Subsidiary reasonably believes are necessary or appropriate for such prosecution or defense as provided in this Article IV; and (y) such other assistance in support of the prosecution or defense of such litigation as New Sun or its Subsidiaries may reasonably request, including without limitation, the right to assert in the name of Sabra or any of its Subsidiaries such rights, claims, counterclaims or defenses that Sabra or any Sabra Subsidiary would be or would have been entitled to assert in such litigation or in the prosecution of or defense against such claim had the Distribution not occurred; provided, however, that no member of the Sabra Group shall be required to take any action, refrain from taking any action or make available any assistance if doing so would have the effect of increasing Liabilities of the Sabra Groupclaim. (e) On the Distribution Date, Sabra shall assume (or shall cause one of its Subsidiaries to assume) (i) the prosecution of all claims which relate to the Real Estate Business that are either pending on or arise after the Distribution Date; (ii) in conjunction with New Sun pursuant to Section 4.03(d), the defense against all Third Party Claims arising from or relating to the Distribution or the REIT Conversion Merger; and (iii) the defense against all Third Party Claims which are Sabra Liabilities and are either pending on or arise after the Distribution Date. New Sun shall use commercially reasonable efforts to make available and shall cause its Subsidiaries to use commercially reasonable efforts to make available to Sabra and its Subsidiaries, at Sabra’s expense, (x) any personnel or any books, records or other documents within its control or which it otherwise has the ability to make available that Sabra or such Subsidiary reasonably believes are necessary or appropriate for such prosecution or defense as provided in this Article IV; and (y) such other assistance in support of the prosecution or defense of such litigation as Sabra or its Subsidiaries may reasonably request, including without limitation, the right to assert in the name of New Sun or any of its Subsidiaries such rights, claims, counterclaims or defenses that New Sun or any New Sun Subsidiary would be or would have been entitled to assert in such litigation or in the prosecution of or defense against such claim had the Distribution not occurred; provided, however, that no member of the New Sun Group shall be required to take any action, refrain from taking any action or make available any assistance if doing so would have the effect of increasing Liabilities of the New Sun Group.