Common use of Indemnification Obligations Net of Insurance Proceeds Clause in Contracts

Indemnification Obligations Net of Insurance Proceeds. The Parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) will be net of Insurance Proceeds that actually reduce the amount of the Loss. Accordingly, the amount which an Indemnifying Party is required to pay to any Indemnitee will be reduced by any Insurance Proceeds actually recovered by or on behalf of the Indemnitee in reduction of the related Loss. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance Proceeds, the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.

Indemnification Obligations Net of Insurance Proceeds. The Parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) will be net of Insurance Proceeds that actually reduce the amount of the Loss. Accordingly, the amount which an Indemnifying Party is required to pay to any Indemnitee will be reduced by any Insurance Proceeds actually recovered by or on behalf of the Indemnitee in reduction of the related Loss. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance Proceeds, the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties intend that any Loss Liability subject to indemnification or reimbursement contribution pursuant to this Article IX (an “Indemnifiable Loss”) will V shall be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which that any Party (an “Indemnifying Party Party”) is required to pay to any Indemnitee will Person entitled to indemnification or contribution hereunder (an “Indemnitee”) shall be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction respect of the related LossLiability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, then the Indemnitee will shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. (b) It is expressly agreed and understood that all rights to indemnification, contribution and reimbursement pursuant to this Article V are in excess of all available insurance. The Indemnitee Without limiting the foregoing, the Parties agree that an insurer who would otherwise be obligated to pay any claim shall use not be relieved of the responsibility with respect thereto or, solely by virtue of any provision contained in this Agreement or any Ancillary Agreement, 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 “windfall” (i.e., a benefit they would not be entitled to receive in the absence of the indemnification provisions hereof) by virtue of the Liability allocation, indemnification and contribution provisions hereof. Accordingly, any provision herein that could have the result of giving any insurer or other Third Party such a “windfall” shall be suspended or amended to the extent necessary to not provide such “windfall.” Each Party shall, and shall cause the members of its Affiliates to Group to, use commercially reasonable efforts (taking into account the probability of success on the merits and the cost of expending such efforts, including attorney’s fees and expenses) to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance collect or against a third party in respect of any Indemnifiable Loss shall notrecover, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; rather, or allow the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance collect or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Partyrecover, any Insurance Proceeds to that may be collectible or recoverable respecting the Liabilities for which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. indemnification or contribution may be available under this Article V. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that nothing in this sentence shall be deemed to require a Party to make available books and records, communications, documents or items which that (i) in such Party’s good faith judgment could result in a waiver of any privilege even if the Parties 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 partyThird Party, in which case such Party shall use commercially reasonable efforts to seek a waiver of or other relief from such confidentiality restriction. Unless Notwithstanding the foregoing, an Indemnifying Party has made may not delay making any indemnification payment in full required under the terms of this Agreement, or otherwise satisfying any indemnification obligation, pending the outcome of any Indemnifiable LossAction to collect or recover Insurance Proceeds, such Indemnifying Party and an Indemnitee need not attempt to collect any Insurance Proceeds prior to making a claim for indemnification or contribution or receiving any Indemnity Payment otherwise owed to it under this Agreement or any Ancillary Agreement. (c) Each of Delphi Technologies and Aptiv shall, and shall use and cause the members of its Affiliates to Group to, when appropriate, use commercially reasonable efforts to obtain waivers of subrogation for each of the insurance policies described in Section 5.16. Each of Delphi Technologies and Aptiv hereby waives, for itself and each member of its Group, its rights to recover any Insurance Proceeds against the other Party in subrogation or as subrogee for a third Person. (d) For all claims as to which it indemnification is provided under Section 5.2 or such Affiliate is entitled with respect 5.3 other than Third-Party Claims (as to any Indemnifiable Losswhich Section 5.5 shall apply), the reasonable fees and expenses of counsel to the Indemnitee for the enforcement of the indemnity obligations shall be borne by the Indemnifying Party.

Indemnification Obligations Net of Insurance Proceeds. The Parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) will be net of Insurance Proceeds that actually reduce the amount of the Loss. Accordingly, the amount which an Indemnifying Party is required to pay to any Indemnitee will be reduced by any Insurance Proceeds actually recovered by or on behalf of the Indemnitee in reduction of the related Loss. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance ProceedsProceeds to which the Indemnitee is entitled, the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance proceeds or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties intend that any Loss Liability subject to indemnification or reimbursement contribution pursuant to this Article IX (an “Indemnifiable Loss”) will V shall be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which that any Party (an “Indemnifying Party Party”) is required to pay to any Indemnitee will Person entitled to indemnification or contribution hereunder (an “Indemnitee”) shall be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction respect of the related LossLiability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, then the Indemnitee will shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. (b) It is expressly agreed and understood that all rights to indemnification, contribution and reimbursement pursuant to this Article V are in excess of all available insurance. The Indemnitee Without limiting the foregoing, the Parties agree that an insurer who would otherwise be obligated to pay any claim shall use not be relieved of the responsibility with respect thereto or, solely by virtue of any provision contained in this Agreement or any Ancillary Agreement, 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 “windfall” (i.e., a benefit they would not be entitled to receive in the absence of the indemnification provisions hereof) by virtue of the Liability allocation, indemnification and contribution provisions hereof. Accordingly, any provision herein that could have the result of giving any insurer or other Third Party such a “windfall” shall be suspended or amended to the extent necessary to not provide such “windfall.” Each Party shall, and shall cause the members of its Affiliates to Group to, use commercially reasonable efforts (taking into account the probability of success on the merits and the cost of expending such efforts, including attorney’s fees and expenses) to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance collect or against a third party in respect of any Indemnifiable Loss shall notrecover, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; rather, or allow the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance collect or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Partyrecover, any Insurance Proceeds to that may be collectible or recoverable respecting the Liabilities for which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. indemnification or contribution may be available under this Article V. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that nothing in this sentence shall be deemed to require a Party to make available books and records, communications, documents or items which that (i) in such Party’s good faith judgment could result in a waiver of any privilege even if the Parties 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 partyThird Party, in which case such Party shall use commercially reasonable efforts to seek a waiver of or other relief from such confidentiality restriction. Unless Notwithstanding the foregoing, an Indemnifying Party has made may not delay making any indemnification payment in full required under the terms of this Agreement, or otherwise satisfying any indemnification obligation, pending the outcome of any Indemnifiable LossAction to collect or recover Insurance Proceeds, such Indemnifying Party shall use and cause its Affiliates an Indemnitee need not attempt to use commercially reasonable efforts to recover collect any Insurance Proceeds prior to making a claim for indemnification or contribution or receiving any Indemnity Payment otherwise owed to it under this Agreement or any Ancillary Agreement. (c) Each of GRAIL and Illumina hereby waives, for itself and each member of its Group, its rights to recover against the other Party in subrogation or as subrogee for a third Person. (d) For all claims as to which it indemnification is provided under Section 5.2 or such Affiliate is entitled with respect 5.3, the reasonable fees and expenses of counsel to any Indemnifiable Lossthe Indemnitee for the enforcement of the indemnity obligations shall be borne by the Indemnifying Party, except as otherwise expressly set forth in Section 5.5.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties intend that any Loss Liability subject to indemnification or reimbursement contribution pursuant to this Article IX (an “Indemnifiable Loss”) will V shall be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which that any Party (an “Indemnifying Party Party”) is required to pay to any Indemnitee will Person entitled to indemnification or contribution hereunder (an “Indemnitee”) shall be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction respect of the related LossLiability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, then the Indemnitee will shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. (b) It is expressly agreed and understood that all rights to indemnification, contribution and reimbursement pursuant to this Article V are in excess of all available insurance. The Indemnitee Without limiting the foregoing, the Parties agree that an insurer who would otherwise be obligated to pay any claim shall use not be relieved of the responsibility with respect thereto or, solely by virtue of any provision contained in this Agreement or any Ancillary Agreement, 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 “windfall” (i.e., a benefit they would not be entitled to receive in the absence of the indemnification provisions hereof) by virtue of the Liability allocation, indemnification and contribution provisions hereof. Accordingly, any provision herein that could have the result of giving any insurer or other Third Party such a “windfall” shall be suspended or amended to the extent necessary to not provide such “windfall.” Each Party shall, and shall cause the members of its Affiliates to Group to, use commercially reasonable efforts (taking into account the probability of success on the merits and the cost of expending such efforts, including attorney’s fees and expenses) to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance collect or against a third party in respect of any Indemnifiable Loss shall notrecover, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; rather, or allow the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance collect or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Partyrecover, any Insurance Proceeds to that may be collectible or recoverable respecting the Liabilities for which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. indemnification or contribution may be available under this Article V. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that nothing in this sentence shall be deemed to require a Party to make available books and records, communications, documents or items which that (i) in such Party’s good faith judgment could result in a waiver of any privilege even if the Parties 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 partyThird Party, in which case such Party shall use commercially reasonable efforts to seek a waiver of or other relief from such confidentiality restriction. Unless Notwithstanding the foregoing, an Indemnifying Party has made may not delay making any indemnification payment in full required under the terms of this Agreement, or otherwise satisfying any indemnification obligation, pending the outcome of any Indemnifiable LossAction to collect or recover Insurance Proceeds, such Indemnifying Party and an Indemnitee need not attempt to collect any Insurance Proceeds prior to making a claim for indemnification or contribution or receiving any Indemnity Payment otherwise owed to it under this Agreement or any Ancillary Agreement. (c) Each of Seaport Entertainment and HHH shall, and shall use and cause the members of its Affiliates to Group to, when appropriate, use commercially reasonable efforts to obtain waivers of subrogation for each of the insurance policies described in Section 5.16. Each of Seaport Entertainment and HHH hereby waives, for itself and each member of its Group, its rights to recover any Insurance Proceeds against the other Party in subrogation or as subrogee for a third Person. (d) For all claims as to which it indemnification is provided under Section 5.2 or such Affiliate is entitled with respect 5.3 other than Third-Party Claims (as to any Indemnifiable Losswhich Section 5.5 shall apply), the reasonable fees and expenses of counsel and litigation costs (including pre- and post-judgment interest) to the Indemnitee for the enforcement of the indemnity obligations shall be borne by the Indemnifying Party.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties parties intend that any Loss Liability subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) will VII or Article VIII shall be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which that any party (an “Indemnifying Party Party”) is required to pay to any Indemnitee will Person entitled to indemnification hereunder (an “Indemnitee”) shall be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction respect of the related LossLiability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, then the Indemnitee will shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. The Indemnitee . (b) An insurer who would otherwise be obligated to pay any claim shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds to which not be relieved of the Indemnitee is entitled responsibility with respect to any Indemnifiable Loss. The existence thereto or, solely by virtue of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX hereof, have any subrogation rights with respect thereto, it being expressly understood and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying agreed that no insurer or any other Third Party shall make payment be entitled to a “windfall” (i.e., a benefit they would not be entitled to receive in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party absence of the portion indemnification provisions hereof) by virtue of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Lossindemnification provisions hereof.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article IX III (an “Indemnifiable Loss”) will be net of Insurance Proceeds that actually reduce the amount of the Loss. Accordingly, the amount which either Party (an “Indemnifying Party Party”) is required to pay to any Indemnitee Person entitled to indemnification hereunder (an “Indemnitee”) will be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction of the related Loss. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance Proceeds, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds proceeds of insurance policies to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX III and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; 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 Good Faith Judgment could result in a waiver of any privilege Privilege with respect to a third party even if the Parties B&W and MII cooperated to protect such privilege Privilege as contemplated by this Agreement 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss. (b) An insurer who would otherwise be obligated to pay any claims 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 “windfall” (i.e., a benefit it would not be entitled to receive in the absence of the indemnification provisions set forth in this Agreement) by virtue of the indemnification provisions hereof.

Indemnification Obligations Net of Insurance Proceeds. The Parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article IX X (an “Indemnifiable Loss”) will be net of Insurance Proceeds that actually reduce the amount of the Loss. Accordingly, the amount which an Indemnifying Party is required to pay to any Indemnitee will be reduced by any Insurance Proceeds actually recovered by or on behalf of the Indemnitee in reduction of the related Loss. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance Proceeds, the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX X and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties intend that any Loss Liability subject to indemnification or reimbursement contribution pursuant to this Article IX (an “Indemnifiable Loss”) will III shall be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which that any Party (an “Indemnifying Party Party”) is required to pay to any Indemnitee will Person entitled to indemnification or contribution hereunder (an “Indemnitee”) shall be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction respect of the related LossLiability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, then the Indemnitee will shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. (b) It is expressly agreed and understood that all rights to indemnification, contribution and reimbursement pursuant to this Article III are in excess of all available insurance. The Indemnitee Without limiting the foregoing, the Parties agree that an insurer who would otherwise be obligated to pay any claim shall use not be relieved of the responsibility with respect thereto or, solely by virtue of any provision contained in this Agreement or any Ancillary Agreement, 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 “windfall” (i.e., a benefit they would not be entitled to receive in the absence of the indemnification provisions hereof) by virtue of the Liability allocation, indemnification and contribution provisions hereof. Accordingly, any provision herein that could have the result of giving any insurer or other Third Party such a “windfall” shall be suspended or amended to the extent necessary to not provide such “windfall.” Each Party shall, and shall cause the members of its Affiliates to Group to, use commercially reasonable efforts (taking into account the probability of success on the merits and the cost of expending such efforts, including attorney’s fees and expenses) to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance collect or against a third party in respect of any Indemnifiable Loss shall notrecover, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; rather, or allow the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance collect or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Partyrecover, any Insurance Proceeds to that may be collectible or recoverable respecting the Liabilities for which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignmentindemnification or contribution may be available under this Article III. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that nothing in this sentence shall be deemed to require a Party to make available books and records, communications, documents or items which that (i) in such Party’s good faith judgment could result in a waiver of any privilege even if the Parties 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 partyThird Party, in which case such Party shall use commercially reasonable efforts to seek a waiver of or other relief from such confidentiality restriction. Unless Notwithstanding the foregoing, an Indemnifying Party has made may not delay making any indemnification payment in full required under the terms of this Agreement, or otherwise satisfying any indemnification obligation, pending the outcome of any Indemnifiable LossAction to collect or recover Insurance Proceeds, such Indemnifying Party and an Indemnitee need not attempt to collect any Insurance Proceeds prior to making a claim for indemnification or contribution or receiving any Indemnity Payment otherwise owed to it under this Agreement or any Ancillary Agreement. (c) Each of TFMC and TEN shall, and shall use and cause the members of its Affiliates to Group to, when appropriate, use commercially reasonable efforts to obtain waivers of subrogation for each of the insurance policies described in Section 3.15. Each of TFMC and TEN hereby waives, for itself and each member of its Group, its rights to recover any Insurance Proceeds against the other Party in subrogation or as subrogee for a third Person. (d) For all claims as to which it indemnification is provided under Section 3.2 or such Affiliate is entitled with respect 3.3 other than Third-Party Claims (as to any Indemnifiable Losswhich Section 3.5 shall apply), the reasonable fees and expenses of counsel to the Indemnitee for the enforcement of the indemnity obligations shall be borne by the Indemnifying Party.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article IX III (an “Indemnifiable Loss”) will be net of Insurance Proceeds that actually reduce the amount of the Loss. Accordingly, the amount which any party (an “Indemnifying Party Party”) is required to pay to any Indemnitee Person entitled to indemnification hereunder (an “Indemnitee”) will be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction of the related Loss. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance Proceeds, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds proceeds of insurance policies to which the Indemnitee is entitled with respect to any Indemnifiable LossLoss if such Indemnifiable Loss is attributable to events that occurred prior to the Distribution Date. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX III and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written an assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that subject to Section 6.5 hereof, nothing in this sentence shall be deemed to require a Party party to make available books and records, communications, documents or items which (i) in such Partyparty’s good faith judgment Good Faith Judgment could result in a waiver of any privilege Privilege with respect to a third party even if the Parties Fiesta Restaurant Group, CRG, Carrols and Carrols LLC cooperated to protect such privilege Privilege as contemplated by this Agreement Agreement, or (ii) such Party party is not permitted to make available because of any Law or any confidentiality obligation to a third party, in which case such Party party shall use commercially reasonable efforts 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss. (b) An insurer who would otherwise be obligated to pay any claims 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 “windfall” (i.e., a benefit it would not be entitled to receive in the absence of the indemnification provisions) by virtue of the indemnification provisions hereof.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties intend that any Loss Liability subject to indemnification or reimbursement contribution pursuant to this Article IX (an “Indemnifiable Loss”) will V shall be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which that any Party (an “Indemnifying Party Party”) is required to pay to any Indemnitee will Person entitled to indemnification or contribution hereunder (an “Indemnitee”) shall be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction respect of the related LossLiability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, then the Indemnitee will shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. (b) It is expressly agreed and understood that all rights to indemnification, contribution and reimbursement pursuant to this Article V are in excess of all available insurance. The Indemnitee Without limiting the foregoing, the Parties agree that an insurer who would otherwise be obligated to pay any claim shall use not be relieved of the responsibility with respect thereto or, solely by virtue of any provision contained in this Agreement or any Ancillary Agreement, 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 “windfall” (i.e., a benefit they would not be entitled to receive in the absence of the indemnification provisions hereof) by virtue of the Liability allocation, indemnification and contribution provisions hereof. Accordingly, any provision herein that could have the result of giving any insurer or other Third Party such a “windfall” shall be suspended or amended to the extent necessary to not provide such “windfall.” Each Party shall, and shall cause the members of its Affiliates to Group to, use commercially reasonable efforts (taking into account the probability of success on the merits and the cost of expending such efforts, including attorney’s fees and expenses) to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance collect or against a third party in respect of any Indemnifiable Loss shall notrecover, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; rather, or allow the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance collect or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Partyrecover, any Insurance Proceeds to that may be collectible or recoverable respecting the Liabilities for which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. indemnification or contribution may be available under this Article V. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that nothing in this sentence shall be deemed to require a Party to make available books and records, communications, documents or items which that (i) in such Party’s good faith judgment could result in a waiver of any privilege even if the Parties 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 partyThird Party, in which case such Party shall use commercially reasonable efforts to seek a waiver of or other relief from such confidentiality restriction. Unless Notwithstanding the foregoing, an Indemnifying Party has made may not delay making any indemnification payment in full required under the terms of this Agreement, or otherwise satisfying any indemnification obligation, pending the outcome of any Indemnifiable LossAction to collect or recover Insurance Proceeds, such Indemnifying Party and an Indemnitee need not attempt to collect any Insurance Proceeds prior to making a claim for indemnification or contribution or receiving any Indemnity Payment otherwise owed to it under this Agreement or any Ancillary Agreement. (c) Each of Worthington Steel and New Worthington shall, and shall use and cause the members of its Affiliates to Group to, when appropriate, use commercially reasonable efforts to obtain waivers of subrogation for each of the insurance policies described in Section 5.16. Each of Worthington Steel and New Worthington hereby waives, for itself and each member of its Group, its rights to recover any Insurance Proceeds against the other Party in subrogation or as subrogee for a third Person. (d) For all claims as to which it indemnification is provided under Section 5.2 or such Affiliate is entitled with respect 5.3 other than Third-Party Claims (as to any Indemnifiable Losswhich Section 5.5 shall apply), the reasonable fees and expenses of counsel to the Indemnitee for the enforcement of the indemnity obligations shall be borne by the Indemnifying Party.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article IX III (an “Indemnifiable Loss”) will be net of Insurance Proceeds that actually reduce the amount of the Loss. Accordingly, the amount which any party (an “Indemnifying Party Party”) is required to pay to any Indemnitee Person entitled to indemnification hereunder (an “Indemnitee”) will be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction of the related Loss. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance Proceeds, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds proceeds of insurance policies to which the Indemnitee is entitled with respect to any Indemnifiable LossLoss if such Indemnifiable Loss is attributable to events that occurred prior to the Distribution Date. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX III and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written an assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that subject to Section 6.5 hereof, nothing in this sentence shall be deemed to require a Party party to make available books and records, communications, documents or items which (i) in such Partyparty’s good faith judgment Good Faith Judgment could result in a waiver of any privilege Privilege with respect to a third party even if the Parties Seahawk and Pride cooperated to protect such privilege Privilege as contemplated by this Agreement Agreement, or (ii) such Party party is not permitted to make available because of any Law or any confidentiality obligation to a third party, in which case such Party party shall use commercially reasonable efforts 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss. (b) An insurer who would otherwise be obligated to pay any claims 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 “windfall” (i.e., a benefit it would not be entitled to receive in the absence of the indemnification provisions) by virtue of the indemnification provisions hereof.

Indemnification Obligations Net of Insurance Proceeds. The Parties intend that any (a) Any Loss subject to indemnification or reimbursement pursuant to this Article IX III (an “Indemnifiable Loss”) will be net of Insurance Proceeds that actually reduce the amount recovered on account of the such Loss. Accordingly, the amount which that either Party (an “Indemnifying Party Party”) is required to pay to any Indemnitee Person entitled to indemnification hereunder (an “Indemnitee”) will be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction on account of the related Loss. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance ProceedsProceeds on account of such Loss, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if after taking into account the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were madereceived on account thereof. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any proceeds of Insurance Proceeds Policies to which the Indemnitee is directly or indirectly entitled with respect to any Indemnifiable Loss. The Except as set forth in Section 3.5(b), the existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX III and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is directly or indirectly entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; 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 Good Faith Judgment could result in a waiver of any privilege Privilege with respect to a third party even if the Parties Nuvectra and Greatbatch cooperated to protect such privilege Privilege as contemplated by this Agreement 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss. (b) Notwithstanding anything set forth in Section 3.5(a), in the case of any Indemnifiable Loss for which it is reasonably likely that an Nuvectra Indemnitee may have a direct or indirect right of recovery of Insurance Proceeds as a Covered Matter under an insurance program maintained by Greatbatch or any member of the Greatbatch Group, then prior to asserting a claim for indemnification under Section 3.4, such Nuvectra Indemnitee shall notify Greatbatch of such Covered Matter and such insurance claim so that Greatbatch may report such claim to the insurance carrier in accordance with Section 6.9(k). To the extent that an Nuvectra Indemnitee actually obtains recovery in respect of any such Indemnifiable Losses pursuant to this Section 3.5(b), such Nuvectra Indemnitee shall use the funds provided by such recovery to pay or otherwise satisfy such Indemnifiable Losses and the amount that Greatbatch may be required to pay to any Nuvectra Indemnitee with respect to such Indemnifiable Loss under this Article III shall be reduced by the amount of such Insurance Proceeds actually paid to the Nuvectra Indemnitee. The Nuvectra Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist in recovering any Insurance Proceeds to which the Nuvectra Indemnitee is directly or indirectly entitled with respect to any Indemnifiable Loss. The Nuvectra Indemnitee shall make available to the insurance carrier and its counsel 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; 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 result in a waiver of any Privilege with respect to a third party even if Nuvectra and Greatbatch 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 to seek a waiver of or other relief from such confidentiality restriction. (c) An insurer who would otherwise be obligated to pay any claims 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 “windfall” (i.e., a benefit it would not be entitled to receive in the absence of the indemnification provisions set forth in this Agreement) by virtue of the indemnification provisions hereof.

Indemnification Obligations Net of Insurance Proceeds. The Parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) will be net of Insurance Proceeds actually received that actually reduce the amount of the Loss. Accordingly, the amount which an Indemnifying Party is required to pay to any Indemnitee will be reduced by any Insurance Proceeds actually recovered by or on behalf of the Indemnitee in reduction of the related Loss. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance Proceeds, the Indemnitee will promptly pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties intend that any Loss Liability subject to indemnification or reimbursement pursuant to under this Article IX (an “Indemnifiable Loss”) 6 will be net of Insurance Proceeds that actually reduce the amount of the LossProceeds. Accordingly, the amount which that any party (an “Indemnifying Party Party”) is required to pay to any Indemnitee Person entitled to indemnification under this Agreement (an “Indemnitee”) will be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction of the related LossLiability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. The Indemnitee shall use . (b) An insurer who would otherwise be obligated to pay any claim will not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions of this Agreement, have any subrogation rights with respect thereto, (it being expressly understood and cause its Affiliates agreed that no insurer or any other third party will be entitled to a benefit it would not be entitled to receive in the absence of the indemnification provisions) by virtue of the indemnification provisions of this Agreement. (c) With respect to all third party insurance policies, the Parties agree to act in good faith and to use their commercially reasonable efforts to recover any Insurance Proceeds preserve and maximize the insurance benefits to which pay amounts due to Indemnitees and to cooperate with one another as necessary to permit each other to access or obtain the Indemnitee is entitled with respect benefits under those policies to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant make payments to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying PartyIndemnitees; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, except that nothing in this sentence shall Section will be deemed construed to require a prevent any Party or any other Person from asserting claims for insurance benefits or accepting insurance benefits provided by the policies. Each Party agrees to provide information on the reasonable request of the other Party regarding requests that it has made for insurance benefits, notices of claim, occurrences and circumstances that it has submitted to the insurance companies or other entities managing the policies, payment it has received from the insurance companies, including any agreements to make available books payments, and records, communications, documents or items which (i) in such Party’s good faith judgment could result in a waiver any other information that the other Party may need to determine the status of any privilege even if the Parties cooperated to protect such privilege as contemplated by this Agreement or (ii) such Party is not permitted to make available because insurance policies and the continued availability of any Law or any confidentiality obligation to a third party, in which case such Party shall use commercially reasonable efforts 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Lossbenefits thereunder.

Indemnification Obligations Net of Insurance Proceeds. The Parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) will be net of Insurance Proceeds that actually reduce the amount of the Loss. Accordingly, the amount which an Indemnifying Party is required to pay to any Indemnitee will be reduced by any Insurance Proceeds actually recovered by or on behalf of the Indemnitee in reduction of the related Loss. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance Proceeds, the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable best efforts to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable best efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 best efforts 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 best efforts to recover any Insurance Proceeds to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article IX III (an “Indemnifiable Loss”) will be net of Insurance Proceeds that actually reduce the amount of the Loss. Accordingly, the amount which any Party (an “Indemnifying Party Party”) is required to pay to any Indemnitee Person entitled to indemnification hereunder (an “Indemnitee”) will be reduced by any Insurance Proceeds actually recovered by or on behalf of the Indemnitee in reduction of the related Loss. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance ProceedsProceeds covering the related Loss, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds proceeds of insurance policies to which the Indemnitee is directly or indirectly entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX III and otherwise determined to be due and owing by an Indemnifying Party; rather, rather the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written an assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is directly or indirectly entitled with respect to any Indemnifiable Loss as a result of such assignment. The Subject to Section 7.3, the Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that subject to Section 7.7 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 result in a waiver of any privilege even if the Parties cooperated to protect such privilege as contemplated by this Agreement Privilege 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 its commercially reasonable efforts 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss. (b) An insurer who would otherwise be obligated to pay any claims shall not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof, or 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 “windfall” (i.e., a benefit it would not be entitled to receive in the absence of the indemnification provisions set forth in this Agreement) by virtue of the indemnification provisions hereof.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties intend that any Loss Liability subject to indemnification or reimbursement pursuant to under this Article IX (an “Indemnifiable Loss”) 6 will be net of Insurance Proceeds that actually reduce the amount of the LossProceeds. Accordingly, the amount which that any party (an “Indemnifying Party Party”) is required to pay to any Indemnitee Person entitled to indemnification under this agreement (an “Indemnitee”) will be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction of the related LossLiability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. The Indemnitee shall use . (b) An insurer who would otherwise be obligated to pay any claim will not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions of this agreement, have any subrogation rights with respect thereto, (it being expressly understood and cause its Affiliates agreed that no insurer or any other third party will be entitled to a benefit it would not be entitled to receive in the absence of the indemnification provisions) by virtue of the indemnification provisions of this agreement. (c) With respect to all third party insurance policies, the Parties agree to act in good faith and to use their commercially reasonable efforts to recover any Insurance Proceeds preserve and maximize the insurance benefits to which pay amounts due to Indemnitees and to cooperate with one another as necessary to permit each other to access or obtain the Indemnitee is entitled with respect benefits under those policies to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant make payments to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying PartyIndemnitees; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, except that nothing in this sentence shall Section will be deemed construed to require a prevent any Party or any other Person from asserting claims for insurance benefits or accepting insurance benefits provided by the policies. Each Party agrees to provide information on the reasonable request of the other Party regarding requests that it has made for insurance benefits, notices of claim, occurrences and circumstances that it has submitted to the insurance companies or other entities managing the policies, payment it has received from the insurance companies, including any agreements to make available books payments, and records, communications, documents or items which (i) in such Party’s good faith judgment could result in a waiver any other information that the other Party may need to determine the status of any privilege even if the Parties cooperated to protect such privilege as contemplated by this Agreement or (ii) such Party is not permitted to make available because insurance policies and the continued availability of any Law or any confidentiality obligation to a third party, in which case such Party shall use commercially reasonable efforts 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Lossbenefits thereunder.

Indemnification Obligations Net of Insurance Proceeds. The Parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article IX (an “"Indemnifiable Loss”") will be net of Insurance Proceeds that actually reduce the amount of the Loss. Accordingly, the amount which an Indemnifying Party is required to pay to any Indemnitee will be reduced by any Insurance Proceeds actually recovered by or on behalf of the Indemnitee in reduction of the related Loss. If an Indemnitee receives a payment (an “"Indemnity Payment”") required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance Proceeds, the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, provided that 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 's good faith judgment could result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article IX III (an “"Indemnifiable Loss”") will be net of Insurance Proceeds that actually reduce the amount of the Loss. Accordingly, the amount which any party (an "Indemnifying Party Party") is required to pay to any Indemnitee Person entitled to indemnification hereunder (an "Indemnitee") will be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction of the related Loss. If an Indemnitee receives a payment (an “"Indemnity Payment”") required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance Proceeds, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX III and otherwise determined to be due and owing by an Indemnifying Party; rather, . Rather the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written an assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that subject to Section 7.7 hereof, nothing in this sentence shall be deemed to require a Party party to make available books and records, communications, documents or items which (i) in such Party’s party's good faith judgment could result in a waiver of any privilege even if the Parties cooperated to protect such privilege as contemplated by this Agreement Privilege or (ii) such Party party is not permitted to make available because of any Law or any confidentiality obligation to a third party, in which case such Party party shall use commercially its reasonable commercial efforts 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss. (b) An insurer who would otherwise be obligated to pay any claims 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 "windfall" (i.e., a benefit it would not be entitled to receive in the absence of the indemnification provisions) by virtue of the indemnification provisions hereof.

Indemnification Obligations Net of Insurance Proceeds. The Parties intend that any (a) Any Loss subject to indemnification or reimbursement pursuant to this Article IX III (an “Indemnifiable Loss”) will be net of Insurance Proceeds that actually reduce the amount recovered on account of the such Loss. Accordingly, the amount which either Party (an “Indemnifying Party Party”) is required to pay to any Indemnitee Person entitled to indemnification hereunder (an “Indemnitee”) will be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction on account of the related Loss. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance ProceedsProceeds on account of such Loss, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if after taking into account the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were madereceived on account thereof. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds proceeds of insurance policies to which the Indemnitee is directly or indirectly entitled with respect to any Indemnifiable Loss. The Except as set forth in Section 3.5(b), the existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX III and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is directly or indirectly entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; 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 Good Faith Judgment could result in a waiver of any privilege Privilege with respect to a third party even if the Parties SSE and CHK cooperated to protect such privilege Privilege as contemplated by this Agreement 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss. (b) Notwithstanding anything set forth in Section 3.5(a), in the case of any Indemnifiable Loss for which it is reasonably likely that an SSE Indemnitee may have a direct or indirect right of recovery of Insurance Proceeds under an insurance program maintained by CHK or an Affiliate thereof, including COI, then prior to asserting a claim for indemnification under Section 3.4, such SSE Indemnitee shall notify COI of such Indemnifiable Loss and such insurance claim so that COI may report such claim to the insurance carrier in accordance with Section 6.12(i). To the extent that an SSE Indemnitee actually obtains recovery in respect of any such Indemnifiable Losses pursuant to this Section 3.5(b), such SSE Indemnitee shall use the funds provided by such recovery to pay or otherwise satisfy such Indemnifiable Losses and the amount that CHK may be required to pay to any SSE Indemnitee with respect to such Indemnifiable Loss under this Article III shall be reduced by the amount of such insurance proceeds actually paid to the SSE Indemnitee. The Applicable Deadline with respect to such Indemnifiable Loss shall be tolled during the period in which SSE is seeking to recover insurance proceeds on behalf of the SSE Indemnitee until the indemnification claim is resolved; provided that the SSE Indemnitee provides the required notice of the indemnification claim relating to such Indemnifiable Loss in accordance with the provisions of Section 5.3

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties intend that any Loss Liability subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) V or Article VI will be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which any Party (an “Indemnifying Party is required Party”) has paid to pay or on behalf of any person or entity entitled to any Indemnitee indemnification hereunder (an “Indemnitee”) will be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction respect of the related LossLiability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received and any costs or expenses incurred by the Indemnitee in recovering such payment over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. The . (i) Notwithstanding anything in Section 5.6(a), the initial obligation of the Indemnifying Party shall be to indemnify fully the Indemnitee, without regard to whether there may or may not be available Insurance Proceeds. (ii) Once the Indemnifying Party has indemnified the Indemnitee, or agreed to the reasonable satisfaction of the Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds indemnify the Indemnitee without reservation or exception, for a liability as to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence may have insurance coverage, then upon the request of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; ratherparty, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use pursue recovery of Insurance Proceeds under the Indemnitee’s insurance policies, including making claims and cause its Affiliates to use commercially reasonable filing suits if necessary. Such insurance recovery efforts to assist shall be at the Indemnifying Party in recovering or to recover on behalf sole cost and expense of the Indemnifying Party, but shall be under the final control of the Indemnitee. Specifically, the Indemnitee shall retain and direct counsel, control litigation and make final decisions on all matters, including settlement or any Insurance Proceeds other form of claim resolution relating to such insurance recovery effort, except that Indemnitee may not settle or compromise any insurance claim without the consent of the Indemnifying Party, such consent not to be unreasonably withheld or delayed (b) An insurer who would otherwise be obligated to pay any claim shall not be relieved of the responsibility therefor, or have any subrogation rights with respect thereto, as a consequence of the indemnification rights under this Agreement. (c) The Parties intend that any indemnification or reimbursement payment in respect of a Liability pursuant to this Article V or Article VI shall be increased as necessary to ensure that, after all required Taxes on the indemnification or reimbursement payment are paid (including Taxes applicable to any increases in the indemnity payment under this Section 5.6(c)), the indemnified or reimbursed Person receives the amount it would have received if the indemnity payment was not taxable. (d) For all claims as to which indemnification is provided under Section 5.4 or 5.5 other than Third-Party Claims (as to which Section 5.7 shall apply), the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result reasonable fees and expenses of such assignment. The Indemnitee shall make available counsel to the Indemnifying Party and its counsel all employees, books and records, communications, documents, items or matters within its knowledge, possession or control that are necessary, appropriate or reasonably deemed relevant Indemnitee for the enforcement of the indemnity obligations shall be borne by the Indemnifying Party with respect to the recovery of such Insurance Proceeds; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties intend that any Loss Liability subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) Section 3.02 will be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which an Indemnifying Party that Listco is required to pay to any Indemnitee Person entitled to indemnification under Section 3.02 (an “Indemnified Party”) will be reduced by any Insurance Proceeds actually recovered by or on behalf of the Indemnitee such Indemnified Party in reduction respect of the related LossLiability. If an Indemnitee Indemnified Party receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party Listco in respect of any Loss Liability and subsequently receives Insurance Proceeds, the Indemnitee will pay then such Indemnified Party shall promptly reimburse Listco for any payment made in connection with providing such indemnification up to the Indemnifying amount received by the Indemnified Party, net of any costs and expenses incurred by such Indemnified Party an amount equal in collecting such amount. (b) An insurer who would otherwise be obligated to the excess 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 other third party shall be entitled to a “wind-fall” (i.e., a benefit they would not be entitled to receive in the absence of the indemnification provisions) by virtue of the indemnification provisions hereof. Nothing contained in this Agreement shall obligate any member of the ARD Holdings Group to seek to collect or recover any Insurance Proceeds. (c) All Indemnity Payments received over under this Agreement shall be (i) increased to take account of any net Tax cost actually incurred by the Indemnified Party arising from the receipt of Indemnity Payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any indemnifiable Loss. In computing the amount of any such Tax cost or Tax benefit, the Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any Indemnity Payments that would have been due if Payment hereunder or the Insurance Proceeds recovery had been received, realized incurrence or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover payment of any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable indemnifiable Loss. The existence For purposes of this Agreement, an Indemnified Party shall be deemed to have “actually realized” a claim by an Indemnitee for insurance net Tax cost or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant net Tax benefit to the indemnification provisions contained in this Article IX extent that, and otherwise determined to be due and owing by an Indemnifying Party; ratherat such time as, the Indemnifying amount of Taxes payable (including Taxes payable on an estimated basis) by such Indemnified Party shall make is increased above or reduced below, as the case may be, the amount of Taxes that such Indemnified Party would be required to pay but for the receipt or accrual of the indemnity payment in full or the incurrence or payment of such amount so determined to be due and owing by it indemnified against a concurrent written assignment by as the Indemnitee to the Indemnifying Party case may be. The Parties shall make any adjusting payment between each other as is required under this Section 3.03(c) within ten (10) days of the portion of the claim of the Indemnitee for such insurance date an Indemnified Party is deemed to have actually realized each net Tax benefit or against such third party equal to the net Tax cost. The amount of such payment. The Indemnitee any increase or reduction hereunder shall use and cause its Affiliates be adjusted to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, reflect any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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 final determination with respect to the recovery Indemnified Party’s liability for Taxes and any payments necessary to reflect such adjustment shall be made within ten (10) days of such Insurance Proceeds; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Lossdetermination.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties parties intend that any Loss Liability subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) III will be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which any party (an “Indemnifying Party Party”) is required to pay to any Indemnitee Person entitled to indemnification hereunder (an “Indemnitee”) will be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction of the related LossLiability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. (b) An insurer 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 “wind-fall” (i.e., a benefit they would not be entitled to receive in the absence of the indemnification provisions) by virtue of the indemnification provisions hereof. The Indemnitee Nothing contained in this Agreement or any Ancillary Agreement shall use and cause its Affiliates obligate Enterprise or any member of the Radiant Group to use commercially reasonable efforts seek to collect or recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.

Indemnification Obligations Net of Insurance Proceeds. The Parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) will be net of Insurance Proceeds that actually reduce the amount of the Loss. Accordingly, the amount which an Indemnifying Party is required to pay to any Indemnitee will be reduced by any Insurance Proceeds actually recovered by or on behalf of the Indemnitee in reduction of the related Loss. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance Proceeds, the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, provided that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties intend that any Loss liability subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) will VI shall be net of Insurance Proceeds that actually reduce the amount of the Lossliability. Accordingly, the amount which that any party (an “Indemnifying Party Party”) is required to pay to any Indemnitee will Person entitled to indemnification hereunder (an “Indemnitee”) shall be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction respect of the related Lossliability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss liability and subsequently receives Insurance Proceeds, then the Indemnitee will shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. The Indemnitee . (b) An insurer who would otherwise be obligated to pay any claim shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds to which not be relieved of the Indemnitee is entitled responsibility with respect to any Indemnifiable Loss. The existence thereto or, solely by virtue of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained 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 “windfall” (i.e., a benefit they would not be entitled to receive in this Article IX and otherwise determined the absence of the indemnification provisions hereof) by virtue of the indemnification provisions hereof. (c) For all claims as to be due and owing by an Indemnifying Party; ratherwhich indemnification is provided under Section 6.2 or 6.3, the Indemnifying Party shall make payment in full reasonable fees and expenses of such amount so determined counsel to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount enforcement of such payment. The Indemnitee the indemnity obligations shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of be borne by the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties intend that any Loss Liability subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) will V shall be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which that any Person (an “Indemnifying Party Party”) is required to pay to any Indemnitee will Person entitled to indemnification hereunder (an “Indemnitee”) shall be reduced by any Insurance Proceeds actually recovered by or on behalf of the Indemnitee in reduction respect of the related LossLiability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, then the Indemnitee will shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. The Indemnitee . (b) An insurer that would otherwise be obligated to pay any claim shall use 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 cause agreed that the indemnification provisions hereof do not create any benefit to any insurer or any other Third Party or otherwise alter the terms and conditions of any Insurance Policies. (c) Each of IHM, IHC, CCOH and CCH hereby waives, for itself and each member of its Affiliates to use commercially reasonable efforts Group, any rights to recover any Insurance Proceeds to which against the Indemnitee is entitled other Party in subrogation or as subrogee for a Third Party, but solely with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment Pre-Closing Claims released pursuant to the indemnification provisions contained in this Article IX Section 5.1 and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee solely to the Indemnifying Party of the portion of the claim of the Indemnitee for extent that such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that 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 result in a waiver of subrogation is permitted under any privilege even if the Parties 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 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 applicable Insurance Proceeds to which it or such Affiliate is entitled with respect to any Indemnifiable LossPolicies.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties parties intend that any Loss Liability subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) will V or Article VI shall be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which that any party (an “Indemnifying Party Party”) is required to pay to any Indemnitee will Person entitled to indemnification hereunder (an “Indemnitee”) shall be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction respect of the related LossLiability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, then the Indemnitee will shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. The Indemnitee . (b) An insurer who would otherwise be obligated to pay any claim shall use 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 “windfall” (i.e., a benefit they would not be entitled to receive in the absence of the indemnification provisions hereof) by virtue of the indemnification provisions hereof. (c) Each of Parent and Enova shall, and shall cause the members of its Affiliates to Group to, when appropriate, use commercially reasonable efforts to obtain waivers of subrogation for each of the insurance policies identified on Schedule 5.4(c). Each of Parent and Enova hereby waives, for itself and each member of its Group, its rights to recover any Insurance Proceeds against the other party in subrogation or as subrogee for a third Person. (d) For all claims as to which the Indemnitee indemnification is entitled with respect provided under Section 5.2 or 5.3 other than Third-Party Claims (as to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss which Section 5.5 shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; ratherapply), the Indemnifying Party shall make payment in full reasonable fees and expenses of such amount so determined counsel to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount enforcement of such payment. The Indemnitee the indemnity obligations shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of be borne by the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties intend that any Loss Liability subject to indemnification or reimbursement contribution pursuant to this Article IX (an “Indemnifiable Loss”) will V shall be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which that any Party (an “Indemnifying Party Party”) is required to pay to any Indemnitee will Person entitled to indemnification or contribution hereunder (an “Indemnitee”) shall be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction respect of the related LossLiability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, then the Indemnitee will shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. (b) It is expressly agreed and understood that all rights to indemnification, contribution and reimbursement pursuant to this Article V are in excess of all available insurance. The Indemnitee Without limiting the foregoing, the Parties agree that an insurer who would otherwise be obligated to pay any claim shall use not be relieved of the responsibility with respect thereto or, solely by virtue of any provision contained in this Agreement or any Ancillary Agreement, 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 “windfall” (i.e., a benefit they would not be entitled to receive in the absence of the indemnification provisions hereof) by virtue of the Liability allocation, indemnification and contribution provisions hereof. Accordingly, any provision herein that could have the result of giving any insurer or other Third Party such a “windfall” shall be suspended or amended to the extent necessary to not provide such “windfall.” Each Party shall, and shall cause the members of its Affiliates to Group to, use commercially reasonable efforts (taking into account the probability of success on the merits and the cost of expending such efforts, including attorney’s fees and expenses) to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance collect or against a third party in respect of any Indemnifiable Loss shall notrecover, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; rather, or allow the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance collect or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Partyrecover, any Insurance Proceeds to that may be collectible or recoverable respecting the Liabilities for which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. indemnification or contribution may be available under this Article V. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that nothing in this sentence shall be deemed to require a Party to make available books and records, communications, documents or items which that (i) in such Party’s good faith judgment could result in a waiver of any privilege even if the Parties 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 partyThird Party, in which case such Party shall use commercially reasonable efforts to seek a waiver of or other relief from such confidentiality restriction. Unless Notwithstanding the foregoing, an Indemnifying Party has made may not delay making any indemnification payment in full required under the terms of this Agreement, or otherwise satisfying any indemnification obligation, pending the outcome of any Indemnifiable LossAction to collect or recover Insurance Proceeds, such Indemnifying Party and an Indemnitee need not attempt to collect any Insurance Proceeds prior to making a claim for indemnification or contribution or receiving any Indemnity Payment otherwise owed to it under this Agreement or any Ancillary Agreement. (c) Each of ESAB and Enovis shall, and shall use and cause the members of its Affiliates to Group to, when appropriate, use commercially reasonable efforts to obtain waivers of subrogation for each of the insurance policies described in Section 5.16. Each of ESAB and Enovis hereby waives, for itself and each member of its Group, its rights to recover any Insurance Proceeds against the other Party in subrogation or as subrogee for a third Person. (d) For all claims as to which it indemnification is provided under Section 5.2 or such Affiliate is entitled with respect 5.3 other than Third-Party Claims (as to any Indemnifiable Losswhich Section 5.5 shall apply), the reasonable fees and expenses of counsel to the Indemnitee for the enforcement of the indemnity obligations shall be borne by the Indemnifying Party.

Indemnification Obligations Net of Insurance Proceeds. The Parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article IX Agreement (an “Indemnifiable Loss”) will be net of Insurance Proceeds that actually reduce the amount of the Loss. Accordingly, the amount which an Indemnifying Party Inland American is required to pay to any Indemnitee will be reduced by any Insurance Proceeds actually recovered by or on behalf of the Indemnitee in reduction of the related Loss. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party Inland American in respect of any Loss and subsequently receives Insurance Proceeds, the Indemnitee will pay to the Indemnifying Party Inland American an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX Agreement and otherwise determined to be due and owing by an Indemnifying PartyInland American; rather, the Indemnifying Party Inland American shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party Inland American of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party Inland American in recovering or to recover on behalf of the Indemnifying PartyInland American, any Insurance Proceeds to which the Indemnifying Party Inland American is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party Inland American and its counsel 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 Inland American with respect to the recovery of such Insurance Proceeds; provided, however, that nothing in this sentence shall be deemed to require a Party an Indemnitee to make available books and records, communications, documents or items which (i) in such PartyIndemnitee’s good faith judgment could result in a waiver of any privilege even if the Parties cooperated to protect such privilege as contemplated by this Agreement or (ii) such Party Indemnitee is not permitted to make available because of any Law or any confidentiality obligation to a third party, in which case such Party Indemnitee shall use commercially reasonable efforts to seek a waiver of or other relief from such confidentiality restriction. Unless the Indemnifying Party Inland American has made payment in full of any Indemnifiable Loss, such Indemnifying Party Inland American shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds to which it or such any Affiliate is entitled with respect to any Indemnifiable Loss.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties parties intend that any Loss Liability subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) will V or Article VI shall be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which that any party (an “Indemnifying Party Party”) is required to pay to any Indemnitee will Person entitled to indemnification hereunder (an “Indemnitee”) shall be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction respect of the related LossLiability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in -36- respect of any Loss Liability and subsequently receives Insurance Proceeds, then the Indemnitee will shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. The Indemnitee . (b) An insurer who would otherwise be obligated to pay any claim shall use 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 “windfall” (i.e., a benefit they would not be entitled to receive in the absence of the indemnification provisions hereof) by virtue of the indemnification provisions hereof. (c) Each of Valero and Corner Store shall, and shall cause the members of its Affiliates to Group to, when appropriate, use commercially reasonable efforts to obtain waivers of subrogation for each of the insurance policies identified on Schedule 6.1(c). Each of Valero and Corner Store hereby waives, for itself and each member of its Group, its rights to recover any Insurance Proceeds against the other party in subrogation or as subrogee for a third Person. (d) For all claims as to which the Indemnitee indemnification is entitled with respect provided under Section 5.2 or 5.3 other than Third-Party Claims (as to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss which Section 5.5 shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; ratherapply), the Indemnifying Party shall make payment in full reasonable fees and expenses of such amount so determined counsel to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount enforcement of such payment. The Indemnitee the indemnity obligations shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of be borne by the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.

Indemnification Obligations Net of Insurance Proceeds. The Parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) will be net of Insurance Proceeds that actually reduce the amount of the Loss. Accordingly, the amount which an Indemnifying Party is required to pay to any Indemnitee will be reduced by any Insurance Proceeds actually recovered by or on behalf of the Indemnitee in reduction of the related Loss. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance Proceeds, the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.such

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article IX III (an “"Indemnifiable Loss”") will be net of Insurance Proceeds that actually reduce the amount of the Loss. Accordingly, the amount which any party (an "Indemnifying Party Party") is required to pay to any Indemnitee Person entitled to indemnification hereunder (an "Indemnitee") will be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction of the related Loss. If an Indemnitee receives a payment (an “"Indemnity Payment”") required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance Proceeds, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX III and otherwise determined to be due and owing by an Indemnifying Party; rather, . Rather the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written an assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that subject to Section 7.7 hereof, nothing in this sentence shall be deemed to require a Party party to make available books and records, communications, documents or items which (i) in such Party’s party's good faith judgment could result in a waiver of any privilege even if the Parties cooperated to protect such privilege as contemplated by this Agreement Privilege or (ii) such Party party is not 24 permitted to make available because of any Law or any confidentiality obligation to a third party, in which case such Party party shall use commercially its reasonable commercial efforts 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss. (b) An insurer who would otherwise be obligated to pay any claims 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 "windfall" (i.e., a benefit it would not be entitled to receive in the absence of the indemnification provisions) by virtue of the indemnification provisions hereof.

Indemnification Obligations Net of Insurance Proceeds. The Parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article ARTICLE IX (an “Indemnifiable Loss”) will be net of Insurance Proceeds that actually reduce the amount of the Loss. Accordingly, the amount which an Indemnifying Party is required to pay to any Indemnitee will be reduced by any Insurance Proceeds actually recovered by or on behalf of the Indemnitee in reduction of the related Loss. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance Proceeds, the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article ARTICLE IX and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties parties intend that any Loss Liability subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) will V or Article VI shall be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which that any party (an “Indemnifying Party Party”) is required to pay to any Indemnitee will Person entitled to indemnification hereunder (an “Indemnitee”) shall be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction respect of the related LossLiability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, then the Indemnitee will shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. The Indemnitee . (b) An insurer who would otherwise be obligated to pay any claim shall use 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 “windfall” (i.e., a benefit they would not be entitled to receive in the absence of the indemnification provisions hereof) by virtue of the indemnification provisions hereof. (c) Each of Valero and Corner Store shall, and shall cause the members of its Affiliates to Group to, when appropriate, use commercially reasonable efforts to obtain waivers of subrogation for each of the insurance policies identified on Schedule 6.1(c). Each of Valero and Corner Store hereby waives, for itself and each member of its Group, its rights to recover any Insurance Proceeds against the other party in subrogation or as subrogee for a third Person. (d) For all claims as to which the Indemnitee indemnification is entitled with respect provided under Section 5.2 or 5.3 other than Third-Party Claims (as to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss which Section 5.5 shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; ratherapply), the Indemnifying Party shall make payment in full reasonable fees and expenses of such amount so determined counsel to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount enforcement of such payment. The Indemnitee the indemnity obligations shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of be borne by the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties intend that any Loss Liability subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) V or Article VI will be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which any Party (an “Indemnifying Party is required Party”) has paid to pay or on behalf of any person or entity entitled to any Indemnitee indemnification hereunder (an “Indemnitee”) will be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction respect of the related LossLiability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received and any costs or expenses incurred by the Indemnitee in recovering such payment over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. The . (i) Notwithstanding anything in Section 5.6(a), the initial obligation of the Indemnifying Party shall be to indemnify fully the Indemnitee, without regard to whether there may or may not be available Insurance Proceeds. (ii) Once the Indemnifying Party has indemnified the Indemnitee, or agreed to the reasonable satisfaction of the Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds indemnify the Indemnitee without reservation or exception, for a liability as to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence may have insurance coverage, then upon the request of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; ratherparty, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use pursue recovery of Insurance Proceeds under the Indemnitee’s insurance policies, including making claims and cause its Affiliates to use commercially reasonable filing suits if necessary. Such insurance recovery efforts to assist shall be at the Indemnifying Party in recovering or to recover on behalf sole cost and expense of the Indemnifying Party, but shall be under the final control of the Indemnitee. Specifically, the Indemnitee shall retain and direct counsel, control litigation, and make final decisions on all matters, including settlement or any Insurance Proceeds other form of claim resolution relating to which such insurance recovery effort. In all such matters, the Indemnitee shall consult with the Indemnifying Party is entitled if requested, but the Indemnitee shall retain final authority. (b) An insurer who would otherwise be obligated to pay any claim shall not be relieved of the responsibility therefor, or have any subrogation rights with respect thereto, as a consequence of the indemnification rights under this Agreement. (c) The Parties intend that any indemnification or reimbursement payment in respect of a Liability pursuant to this Article V or Article VI shall be (i) reduced to take into account the amount of any Tax Benefit actually realized by the indemnified or reimbursed Person in respect of such Liability by the end of the taxable year in which the indemnification or reimbursement payment is made and (ii) increased as necessary to ensure that, after all required Taxes on the indemnification or reimbursement payment are paid (including Taxes applicable to any Indemnifiable Loss as a result increases in the indemnity payment under this Section 5.6(c)), the indemnified or reimbursed Person receives the amount it would have received if the indemnity payment was not taxable. For purposes of such assignment. The Indemnitee this Section 5.6(c), the amount of any Tax Benefit and any Income Taxes shall make available be calculated on the basis that the indemnified or reimbursed Person is subject to the Indemnifying highest federal marginal regular statutory income Tax rate, has sufficient taxable income to permit the realization or receipt of any relevant Tax Benefit at the earliest possible time and is not subject to the alternative minimum tax. (d) For all claims as to which indemnification is provided under Section 5.4 or 5.5 other than Third-Party Claims (as to which Section 5.7 shall apply), the reasonable fees and its expenses of counsel all employees, books and records, communications, documents, items or matters within its knowledge, possession or control that are necessary, appropriate or reasonably deemed relevant to the Indemnitee for the enforcement of the indemnity obligations shall be borne by the Indemnifying Party with respect to the recovery of such Insurance Proceeds; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.

Indemnification Obligations Net of Insurance Proceeds. The Parties intend that any (a) Any Indemnifiable Loss subject to indemnification or reimbursement contribution pursuant to this Article IX (an “Indemnifiable Loss”) ARTICLE VII will be calculated net of Insurance Proceeds received by the Indemnitee that actually reduce the amount of the Loss. Accordingly, the amount which an Indemnifying Party is required to pay to any Indemnitee will be reduced by any Insurance Proceeds actually recovered by or on behalf of the Indemnitee in reduction of the related Indemnifiable Loss. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Indemnifiable Loss (an “Indemnity Payment”) and subsequently receives Insurance Proceeds, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. (b) Any insurer that 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 and contributions provisions hereof, have any subrogation rights with respect thereto. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 to seek a waiver to collect or recover any third-party Insurance Proceeds (other than Insurance Proceeds under an arrangement where future premiums are adjusted to reflect prior claims in excess of or other relief from such confidentiality restriction. Unless prior premiums) to which the Indemnifying Party has made payment Indemnitee is entitled in full of connection with any Indemnifiable Loss, such Indemnifying Party shall use and cause its Affiliates Loss for which the Indemnitee seeks contribution or indemnification pursuant to this ARTICLE VII (it being understood that the obligation to use commercially reasonable efforts to collect or recover any third-party Insurance Proceeds shall not require the Indemnitee to which it commence any litigation proceedings against any such third party); provided, however, that the Indemnitee’s inability to collect or recover any such Affiliate Insurance Proceeds shall not limit the Indemnifying Party’s obligations hereunder. (c) All Indemnity Payments under this Agreement shall be (i) increased to take account of any net Tax cost actually incurred by the Indemnitee arising from the receipt of Indemnity Payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax benefit actually realized by the Indemnitee arising from the incurrence or payment of any Indemnifiable Loss. In computing the amount of any such Tax cost or Tax benefit, the Indemnitee shall be deemed to recognize all other items of income, gain, loss deduction or credit before recognizing any item arising from the receipt of any Indemnity Payment hereunder or the incurrence or payment of any Indemnifiable Loss. For purposes of this Agreement, an Indemnitee shall be deemed to have “actually incurred” or “actually realized” a net Tax cost or a net Tax benefit, respectively, to the extent that, and at such time as, the amount of Taxes payable (including Taxes payable on an estimated basis) by such Indemnitee is entitled increased above or reduced below, as the case may be, the amount of Taxes that such Indemnitee would be required to pay but for the receipt or accrual of the Indemnity Payment or the incurrence or payment of such amount indemnified against as the case may be. The Parties shall make any adjusting payment between each other as is required under this Section 7.06(c) within ten (10) days of the date an Indemnitee is deemed to have actually realized or actually incurred each net Tax benefit or net Tax cost, respectively. The amount of any increase or reduction hereunder shall be adjusted to reflect any Final Determination with respect to the Indemnitee’s liability for Taxes and any Indemnifiable Losspayments necessary to reflect such adjustment shall be made within ten (10) days of such determination.

Indemnification Obligations Net of Insurance Proceeds. The Parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) will be net of Insurance Proceeds that actually reduce the amount of the Loss. Accordingly, the amount which an Indemnifying Party is required to pay to any Indemnitee will be reduced by any Insurance Proceeds actually recovered by or on behalf of the Indemnitee in reduction of the related Loss. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance Proceeds, the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable best efforts to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable best efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that 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 would reasonably be expected to result in a waiver of any privilege even if the Parties 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 best efforts 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 best efforts to recover any Insurance Proceeds to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties parties intend that any Loss Liability subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) will V or Article VI shall be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which that any party (an “Indemnifying Party Party”) is required to pay to any Indemnitee will Person entitled to indemnification hereunder (an “Indemnitee”) shall be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction respect of the related LossLiability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, then the Indemnitee will shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. The Indemnitee . (b) An insurer who would otherwise be obligated to pay any claim shall use 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 “windfall” (i.e., a benefit they would not be entitled to receive in the absence of the indemnification provisions hereof) by virtue of the indemnification provisions hereof. (c) Each of NOV and SpinCo shall, and shall cause the members of its Affiliates to Group to, when appropriate, use commercially reasonable efforts to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence obtain waivers of a claim by an Indemnitee subrogation for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party each of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use policies described in Sections 6.3 and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss6.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties parties intend that any Loss Liability subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) will V or Article VI shall be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which that any party (an “Indemnifying Party Party”) is required to pay to any Indemnitee will Person entitled to indemnification hereunder (an “Indemnitee”) shall be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction respect of the related LossLiability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, then the Indemnitee will shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. The Indemnitee . (b) An insurer who would otherwise be obligated to pay any claim shall use 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 “windfall” (i.e., a benefit they would not be entitled to receive in the absence of the indemnification provisions hereof) by virtue of the indemnification provisions hereof. (c) Each of Valero and Corner Store shall, and shall cause the members of its Affiliates to Group to, when appropriate, use commercially reasonable efforts to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence obtain waivers of a claim by an Indemnitee subrogation for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party each of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover policies identified on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.Schedule 6.1

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties intend that any Loss Liability subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) IV or Article V will be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which that any Party (an “Indemnifying Party Party”) is required to pay to any Indemnitee Person entitled to indemnification hereunder (an “Indemnified Party”) will be reduced by any Insurance Proceeds actually recovered by or on behalf of the Indemnitee Indemnified Party in reduction respect of the related LossLiability. If an Indemnitee Indemnified Party receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, the Indemnitee will pay to then such Indemnified Party shall promptly reimburse the Indemnifying Party an amount equal for any payment made in connection with providing such indemnification up to the excess amount received by the Indemnified Party, net of any costs and expenses incurred by such Indemnified Party in collection of such amount. (b) An insurer 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 other third party shall be entitled to a “wind-fall” (i.e., a benefit they would not be entitled to receive in the absence of the indemnification provisions) by virtue of the indemnification provisions hereof. Nothing contained in this Agreement or any Ancillary Agreement shall obligate any member of either Group to seek to collect or recover any Insurance Proceeds. (c) All Indemnity Payments received over under this Agreement shall be (i) increased to take account of any net Tax cost actually incurred by the Indemnified Party arising from the receipt of Indemnity Payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any indemnifiable Loss. In computing the amount of any such Tax cost or Tax benefit, the Indemnified Party shall be deemed to recognize all other items of income, gain, loss deduction or credit before recognizing any item arising from the receipt of any Indemnity Payments that would have been due if Payment hereunder or the Insurance Proceeds recovery had been received, realized incurrence or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover payment of any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable indemnifiable Loss. The existence For purposes of this Agreement, an Indemnified Party shall be deemed to have “actually realized” a claim by an Indemnitee for insurance net Tax cost or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant net Tax benefit to the indemnification provisions contained in this Article IX extent that, and otherwise determined to be due and owing by an Indemnifying Party; ratherat such time as, the Indemnifying amount of Taxes payable (including Taxes payable on an estimated basis) by such Indemnified Party shall make is increased above or reduced below, as the case may be, the amount of Taxes that such Indemnified Party would be required to pay but for the receipt or accrual of the indemnity payment in full or the incurrence or payment of such amount so determined to be due and owing by it indemnified against a concurrent written assignment by as the Indemnitee to the Indemnifying Party case may be. The parties shall make any adjusting payment between each other as is required under this Section 4.04(c) within ten (10) days of the portion of the claim of the Indemnitee for such insurance date an Indemnified Party is deemed to have actually realized each net Tax benefit or against such third party equal to the net Tax cost. The amount of such payment. The Indemnitee any increase or reduction hereunder shall use and cause its Affiliates be adjusted to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, reflect any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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 Final Determination with respect to the recovery Indemnified Party’s liability for Taxes and any payments necessary to reflect such adjustment shall be made within ten (10) days of such Insurance Proceeds; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Lossdetermination.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties intend that any Loss Liability subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) V or Article VI will be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which any Party (an “Indemnifying Party is required Party”) has paid to pay or on behalf of any person or entity entitled to any Indemnitee indemnification hereunder (an “Indemnitee”) will be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction respect of the related LossLiability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received and any costs or expenses incurred by the Indemnitee in recovering such payment over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. (i) Notwithstanding anything in Section 5.6(a), the initial obligation of the Indemnifying Party shall be to indemnify fully the Indemnitee, without regard to whether there may or may not be available Insurance Proceeds. The 3 This Schedule to include the Rockwood Claims. (ii) Once the Indemnifying Party has indemnified the Indemnitee, or agreed to the reasonable satisfaction of the Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds indemnify the Indemnitee without reservation or exception, for a liability as to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence may have insurance coverage, then upon the request of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; ratherparty, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use pursue recovery of Insurance Proceeds under the Indemnitee’s insurance policies, including making claims and cause its Affiliates to use commercially reasonable filing suits if necessary. Such insurance recovery efforts to assist shall be at the Indemnifying Party in recovering or to recover on behalf sole cost and expense of the Indemnifying Party, but shall be under the final control of the Indemnitee. Specifically, the Indemnitee shall retain and direct counsel, control litigation, and make final decisions on all matters, including settlement or any Insurance Proceeds other form of claim resolution relating to which such insurance recovery effort. In all such matters, the Indemnitee shall consult with the Indemnifying Party is entitled if requested, but the Indemnitee shall retain final authority. (b) An insurer who would otherwise be obligated to pay any claim shall not be relieved of the responsibility therefor, or have any subrogation rights with respect thereto, as a consequence of the indemnification rights under this Agreement. (c) The Parties intend that any indemnification or reimbursement payment in respect of a Liability pursuant to this Article V or Article VI shall be (i) reduced to take into account the amount of any Tax Benefit actually realized by the indemnified or reimbursed Person in respect of such Liability by the end of the taxable year in which the indemnification or reimbursement payment is made and (ii) increased as necessary to ensure that, after all required Taxes on the indemnification or reimbursement payment are paid (including Taxes applicable to any Indemnifiable Loss as a result increases in the indemnity payment under this Section 5.6(c)), the indemnified or reimbursed Person receives the amount it would have received if the indemnity payment was not taxable. For purposes of such assignment. The Indemnitee this Section 5.6(c), the amount of any Tax Benefit and any Income Taxes shall make available be calculated on the basis that the indemnified or reimbursed Person is subject to the Indemnifying highest federal marginal regular statutory income Tax rate, has sufficient taxable income to permit the realization or receipt of any relevant Tax Benefit at the earliest possible time and is not subject to the alternative minimum tax. (d) For all claims as to which indemnification is provided under Section 5.4 or 5.5 other than Third-Party Claims (as to which Section 5.7 shall apply), the reasonable fees and its expenses of counsel all employees, books and records, communications, documents, items or matters within its knowledge, possession or control that are necessary, appropriate or reasonably deemed relevant to the Indemnitee for the enforcement of the indemnity obligations shall be borne by the Indemnifying Party with respect to the recovery of such Insurance Proceeds; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties parties intend that any Loss Liability subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) will V or Article VI shall be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which that any party (an “Indemnifying Party Party”) is required to pay to any Indemnitee will Person entitled to indemnification hereunder (an “Indemnitee”) shall be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction respect of the related LossLiability. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, then the Indemnitee will shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. The Indemnitee . (b) An insurer who would otherwise be obligated to pay any claim shall use 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 “windfall” (i.e., a benefit they would not be entitled to receive in the absence of the indemnification provisions hereof) by virtue of the indemnification provisions hereof. (c) Each of NOV and SpinCo shall, and shall cause the members of its Affiliates to Group to, when appropriate, use commercially reasonable efforts to obtain waivers of subrogation for each of the insurance policies identified on Schedule 6.1(c). Each of NOV and SpinCo hereby waives, for itself and each member of its Group, its rights to recover any Insurance Proceeds against the other party in subrogation or as subrogee for a third Person. (d) For all claims as to which the Indemnitee indemnification is entitled with respect provided under Section 5.2 or 5.3 other than Third-Party Claims (as to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss which Section 5.5 shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; ratherapply), the Indemnifying Party shall make payment in full reasonable fees and expenses of such amount so determined counsel to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount enforcement of such payment. The Indemnitee the indemnity obligations shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of be borne by the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties parties intend that any Loss Liability subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) IV or Article V will be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which any party (an "Indemnifying Party Party") is required to pay to any Indemnitee Person entitled to indemnification hereunder (an "Indemnitee") will be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnitee in reduction of the related LossLiability. If an Indemnitee receives a payment (an “"Indemnity Payment”") required by this Agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments Payment received over the amount of the Indemnity Payments Payment that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were Payment was made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover . (b) In the case of any Shared Contingent Liability, any Insurance Proceeds to which the Indemnitee is entitled with respect to actually received, realized or recovered by any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained Shared Contingent Liability will be shared among the parties in this Article IX and otherwise determined to such manner as may be due and owing by an Indemnifying Party; rather, necessary so that the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party obligations of the portion of the claim of the Indemnitee parties for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying PartyShared Contingent Liability, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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 net of such Insurance Proceeds; provided, howeverwill remain in proportion to their respective Shared Percentages, regardless of which party or parties may actually receive, realize or recover such Insurance Proceeds. (c) An insurer 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 nothing in this sentence no insurer or any other third party shall be deemed entitled to require a Party "wind-fall" (i.e., a benefit they would not be entitled to make available books and records, communications, documents or items which (ireceive in the absence of the indemnification provisions) by virtue of the indemnification provisions hereof. Nothing contained in such Party’s good faith judgment could result in a waiver of any privilege even if the Parties cooperated to protect such privilege as contemplated by this Agreement or (ii) such Party is not permitted to make available because any Ancillary Agreement shall obligate any member of any Law or any confidentiality obligation to a third party, in which case such Party shall use commercially reasonable efforts Group to seek a waiver of to collect 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 to which it or such Affiliate is entitled with respect to any Indemnifiable LossProceeds.

Indemnification Obligations Net of Insurance Proceeds. (a) The Parties intend that any Loss Liability subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) IV or Article V will be net of Insurance Proceeds that actually reduce the amount of the LossLiability. Accordingly, the amount which that any Party (an “Indemnifying Party Party”) is required to pay to any Indemnitee Person entitled to indemnification hereunder (an 31 “Indemnified Party”) will be reduced by any Insurance Proceeds actually recovered by or on behalf of the Indemnitee Indemnified Party in reduction respect of the related LossLiability. If an Indemnitee Indemnified Party receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss Liability and subsequently receives Insurance Proceeds, the Indemnitee will pay to then such Indemnified Party shall promptly reimburse the Indemnifying Party an amount equal for any payment made in connection with providing such indemnification up to the excess amount received by the Indemnified Party, net of any costs and expenses incurred by such Indemnified Party in collection of such amount. (b) An insurer 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 other third party shall be entitled to a “wind-fall” (i.e., a benefit they would not be entitled to receive in the absence of the indemnification provisions) by virtue of the indemnification provisions hereof. Nothing contained in this Agreement or any Ancillary Agreement shall obligate any member of either Group to seek to collect or recover any Insurance Proceeds. (c) All Indemnity Payments received over under this Agreement shall be (i) increased to take account of any net Tax cost actually incurred by the Indemnified Party arising from the receipt of Indemnity Payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any indemnifiable Loss. In computing the amount of any such Tax cost or Tax benefit, the Indemnified Party shall be deemed to recognize all other items of income, gain, loss deduction or credit before recognizing any item arising from the receipt of any Indemnity Payments that would have been due if Payment hereunder or the Insurance Proceeds recovery had been received, realized incurrence or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover payment of any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable indemnifiable Loss. The existence For purposes of this Agreement, an Indemnified Party shall be deemed to have “actually realized” a claim by an Indemnitee for insurance net Tax cost or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant net Tax benefit to the indemnification provisions contained in this Article IX extent that, and otherwise determined to be due and owing by an Indemnifying Party; ratherat such time as, the Indemnifying amount of Taxes payable (including Taxes payable on an estimated basis) by such Indemnified Party shall make is increased above or reduced below, as the case may be, the amount of Taxes that such Indemnified Party would be required to pay but for the receipt or accrual of the indemnity payment in full or the incurrence or payment of such amount so determined to be due and owing by it indemnified against a concurrent written assignment by as the Indemnitee to the Indemnifying Party case may be. The parties shall make any adjusting payment between each other as is required under this Section 4.04(c) within ten (10) days of the portion of the claim of the Indemnitee for such insurance date an Indemnified Party is deemed to have actually realized each net Tax benefit or against such third party equal to the net Tax cost. The amount of such payment. The Indemnitee any increase or reduction hereunder shall use and cause its Affiliates be adjusted to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, reflect any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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 Final Determination with respect to the recovery Indemnified Party’s liability for Taxes and any payments necessary to reflect such adjustment shall be made within ten (10) days of such Insurance Proceeds; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Lossdetermination.

Indemnification Obligations Net of Insurance Proceeds. The Parties intend that any Loss subject to indemnification or reimbursement pursuant to this Article IX (an “Indemnifiable Loss”) will be net of Insurance Proceeds that actually reduce the amount of the Loss. Accordingly, the amount which an Indemnifying Party is required to pay to any Indemnitee will be reduced by any Insurance Proceeds actually recovered by or on behalf of the Indemnitee in reduction of the related Loss. If an Indemnitee receives a payment (an “Indemnity Payment”) required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance Proceeds, the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payments received over the amount of the Indemnity Payments that would have been due if the Insurance Proceeds recovery had been received, realized or recovered before the Indemnity Payments were made. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to recover any Insurance Proceeds to which the Indemnitee is entitled with respect to any Indemnifiable Loss. The existence of a claim by an Indemnitee for insurance or against a third party in respect of any Indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained in this Article IX and otherwise determined to be due and owing by an Indemnifying Party; rather, the Indemnifying Party shall make payment in full of such amount so determined to be due and owing by it against a concurrent written assignment by the Indemnitee to the Indemnifying Party of the portion of the claim of the Indemnitee for such insurance or against such third party equal to the amount of such payment. The Indemnitee shall use and cause its Affiliates to use commercially reasonable efforts to assist the Indemnifying Party in recovering or to recover on behalf of the Indemnifying Party, any Insurance Proceeds to which the Indemnifying Party is entitled with respect to any Indemnifiable Loss as a result of such assignment. The Indemnitee shall make available to the Indemnifying Party and its counsel 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; provided, however, that 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 result in a waiver of any privilege even if the Parties 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 1076789.07-NYCSR03A - MSW commercially reasonable efforts 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 to which it or such Affiliate is entitled with respect to any Indemnifiable Loss.