Common use of Indemnification Obligations Net of Insurance Proceeds; Duty of Cooperation Clause in Contracts

Indemnification Obligations Net of Insurance Proceeds; Duty of Cooperation. (a) The Parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article III (an “Indemnifiable Loss”) will be net of Insurance Proceeds and Third Party Indemnity Proceeds that actually reduce the amount of such Loss (and the out-of-pocket costs and expenses incurred by any Indemnitee to collect any such Insurance Proceeds and Third Party Indemnity Proceeds shall increase the amount of such Loss). Accordingly, the amount which a Party (an “Indemnifying Party”) is required to pay to any Person entitled to indemnification hereunder (an “Indemnitee”) will be reduced by any Insurance Proceeds and any Third Party Indemnity Proceeds theretofore actually recovered by or on behalf of the Indemnitee in respect of the related Loss. The Indemnitee shall use, and shall use commercially reasonable efforts to cause its Affiliates to use, commercially reasonable efforts at the cost of the Indemnifying Party, to recover any Insurance Proceeds and any Third Party Indemnity Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss, including at the Indemnifying Party’s option and expense, alternative dispute resolution or litigation through to a final and non-appealable adjudication, except that, with respect to any of the RemainCo Specified Liabilities and SpinCo Specified Liabilities, the Indemnitee shall be required to undertake, and use commercially reasonable efforts to cause its Affiliates to undertake, such commercially reasonable efforts only to the extent (i) the Indemnifying Party has, in writing, expressly requested the Indemnitee or such Affiliate of the Indemnitee to do so (which writing shall contain detailed written instructions setting forth the specific actions to be taken by the Indemnitee and such Affiliate), (ii) the Indemnifying Party promptly reimburses to the Indemnitee or such Affiliate of the Indemnitee all out-of-pocket costs and expenses incurred by the Indemnitee or such Affiliate of the Indemnitee in connection with such commercially reasonable efforts, (iii) the Indemnifying Party, at the request of the Indemnitee or such Affiliate of the Indemnitee, prepares all documentation (including (x) pleadings and other filings in connection with any legal proceedings and (y) notices to insurers or indemnitors) required in connection with such commercially reasonable efforts and (iv) such efforts are commercially reasonable. The Indemnitee shall make available to the Indemnifying Party and its counsel, at the cost of the Indemnifying Party, all employees, books and records, communications, documents, items or matters within its knowledge, possession or control that are necessary, appropriate or reasonably deemed relevant by the Indemnifying Party with respect to the recovery of such Insurance Proceeds or Third Party Indemnity Proceeds; provided, however, that subject to Section 6.5 hereof, nothing in this sentence shall be deemed to require a Party to make available books and records, communications, documents or items which (i) in such Party’s Good Faith Judgment could reasonably be expected to result in a waiver of any Privilege with respect to a Third Party even if SpinCo and RemainCo cooperated to protect such Privilege as contemplated by this Agreement, or (ii) such Party is not permitted to make available because of any Law or any confidentiality obligation to a Third Party, in which case such Party shall use commercially reasonable efforts, at the cost of the Indemnifying Party, to seek a waiver of or other relief from such confidentiality restriction. Unless the Indemnifying Party has made payment in full of any Indemnifiable Loss, such Indemnifying Party shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds or Third Party Indemnity Proceeds to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.