36.6 Project Co shall:
(a) [procure that all policies of insurance to be effected by it pursuant to this Clause shall contain a provision to the effect that the insurers have agreed to waive all rights of subrogation against the Board (and all Board Parties) in accordance with Endorsement 2 in Section 3 of Part 21 of the Schedule (Insurance Requirements)118]; and
(b) [provide for non-vitiation protection in respect of any claim made by the Board as co-insured in accordance with Endorsement [2] in Section 3 of Schedule Part 21 (Insurance Requirements);]119
provided that, to avoid doubt, this Clause 36.6 shall not by itself prevent Project Co from claiming against the Board (or any Board Party) for any loss or damage not covered because of the level of deductibles under such insurance permitted by this Agreement or to the extent such loss or damage exceeds the maximum of such insurance required by this Agreement.
36.7 Neither party shall take any action or fail to take any reasonable action or (in so far as it is reasonably within its power) permit or allow others to take or fail to take any action (including failure to disclose any fact) as a result of which any of the Insurances may be rendered void, voidable, unenforceable or suspended or impaired in whole or in part or which may otherwise render any sum paid out under any relevant policy repayable in whole or in part.
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118 If insurers are unwilling to waive subrogation rights against unnamed Board Parties, Board to consider including specified named Board Parties (especially sub-contractors). Boards should, however, resist a suggestion that 3rd parties should automatically be carved out from this clause.
119 This clause may not be amended but an obligation may be put in Part 21 of the Schedule as follows:-
The Insurers hereby waive all rights of subrogation however arising which they may have or acquire against the Board, Board Parties and its or their respective parents, affiliates, directors, officers employees and assigns arising out of any occurrence in respect of which any claim is admitted under this Policy except where the rights of subrogation or recourse are acquired in consequence of a Vitiating Act in which circumstance insurers may enforce such rights against the vitiating party notwithstanding the continuing or former status of the vitiating party as an Insured.