Common use of Mitigation; Subrogation Clause in Contracts

Mitigation; Subrogation. (a) Each Indemnified Party shall use commercially reasonable efforts to mitigate any Loss suffered, incurred or sustained by it arising out of any matter for which it is entitled to indemnification herein, upon its having obtained actual knowledge of such matter giving rise to such Loss. In the event that an Indemnified Party shall fail to make such commercially reasonable efforts to mitigate such Loss, then notwithstanding anything else to the contrary contained herein, the Indemnifying Party shall not be required to indemnify the Indemnified Party for any Loss that could reasonably be expected to have been avoided had the Indemnified Party made such efforts. (b) Upon making any payment to an Indemnified Party for any indemnification claim pursuant to this ARTICLE X, the Indemnifying Party shall be subrogated, to the extent of such payment, to any rights which the Indemnifying Party may have against any other parties with respect to the subject matter underlying such indemnification claim, and such Indemnified Party shall, to the extent reasonably requested by the Indemnifying Party, cooperate in the enforcement of such rights against such third party. (c) In calculating the amount of any Loss for which any Indemnifying Party is liable under this ARTICLE X, there shall be deducted the amount of any insurance recoveries, excluding any amounts which are in effect self-insured whether through retention amounts or otherwise, the Indemnified Party in fact receives as a direct consequence of the circumstances to which the Loss related or from which the Loss resulted or arose. The Indemnified Party agrees to make a claim against any applicable insurance coverage, including, if applicable, the insurance coverage for the Company to seek recovery for any Loss, and the Indemnifying Party shall have the right to pursue such recovery against any such insurance coverage in the name of the insured; provided, however, that the foregoing shall not materially delay the Indemnified Party’s right to receive indemnification hereunder. (d) Notwithstanding anything in this Agreement to the contrary, in the event that the existence of an obligation for the payment of money to a third party causes any representation or warranty of the Seller contained in ARTICLE IV to be untrue or incorrect, then, upon the Seller’s payment in full and discharge of such obligation, the Seller’s indemnification obligations in respect of any Losses resulting from, arising out of, based on or relating to any such untrue or incorrect representation or warranty shall be deemed to have been terminated.