Common use of Notice; Duty to Mitigate Clause in Contracts

Notice; Duty to Mitigate. (a) Each Party shall give written notice to the other Party as soon as practicable after becoming aware of any breach by such other Party of any representation, warranty, covenant, agreement or obligation in this Agreement. The failure to deliver such a notice, however, shall not release the other Party from any of its obligations under this Article X except to the extent that such other Party is materially and irreversibly prejudiced by such failure. (b) Each Person entitled to indemnification pursuant to Section 10.1 shall use its Commercially Reasonable Efforts to mitigate Losses for which indemnification may be sought pursuant to this Article X, including, (i) using its Commercially Reasonable Efforts to secure payment from insurance policies available and existing on the Closing Date that provide coverage with respect to such Losses (an “Insurance Payment”) and (ii) using its Commercially Reasonable Efforts to secure reimbursement, indemnity or other payment from any third Person obligated by contract or otherwise to reimburse, indemnify or pay the Person entitled to indemnification pursuant to Section 10.1 with respect to such Losses (a “Third Party Payment” and, together with an Insurance Payment, a “Mitigation Payment”). Notwithstanding anything to the contrary contained herein, the recovery by a Person entitled to indemnification pursuant to Section 10.1 from any Party providing such indemnification shall not relieve the Person entitled to indemnification pursuant to Section 10.1 of its obligation to mitigate Losses pursuant to applicable Law or this Section 10.4(b). (c) Any amounts payable to a Person entitled to indemnification pursuant to Section 10.1 with respect to any Losses pursuant to this Article X shall be reduced by the amount of the Mitigation Payment, if any, received by the Person entitled to indemnification pursuant to Section 10.1 with respect to such Losses. In the event a payment is made to a Person entitled to indemnification pursuant to Section 10.1 with respect to any Losses and thereafter such Person receives a Mitigation Payment with respect to such Losses, such Person shall reimburse the Party providing such indemnification an amount equal to the lesser of (i) the Mitigation Payment and (ii) the amount so paid by the Party providing such indemnification. (d) Any amounts payable to a Person entitled to indemnification pursuant to Section 10.1 with respect to any Losses pursuant to this Article X shall be reduced by the amount of any net Tax benefits actually received by such Person as a result of the payment, incurrence or accrual of such Losses.

Notice; Duty to Mitigate. (ai) Each Party shall give written notice to the other Party as soon as practicable after becoming aware of any breach by such other Party of any representation, warranty, covenant, agreement or obligation in this Agreement. The failure to deliver such a notice, however, shall not release the other Party from any of its obligations under this Article X except to the extent that such other Party is materially and irreversibly prejudiced by such failure. (bii) Each Person entitled to indemnification pursuant to Section 10.1 6(a) or Section 5(b) shall use its Commercially Reasonable Efforts to mitigate Losses for which indemnification may be sought pursuant to this Article XSection 6 or Section 5, including, including (iA) using its Commercially Reasonable Efforts to secure payment from insurance policies available and existing on the Closing Contribution Date that provide coverage with respect to such Losses (an “Insurance Payment”) and (iiB) using its Commercially Reasonable Efforts to secure reimbursement, indemnity or other payment from any third Person obligated by contract or otherwise to reimburse, indemnify or pay the Person entitled to indemnification pursuant to Section 10.1 6(a) or Section 5(b) with respect to such Losses (a “Third Party Payment” and, together with an Insurance Payment, a “Mitigation Payment”). Notwithstanding anything in this Agreement to the contrary contained hereincontrary, the recovery by a Person entitled to indemnification pursuant to Section 10.1 6(a) or Section 5(b) from any Party providing such indemnification shall not relieve the Person entitled to indemnification pursuant to Section 10.1 6(a) or Section 5(b) of its obligation to mitigate Losses pursuant to applicable Law or this Section 10.4(b6(c). (ciii) Any amounts payable to a Person entitled to indemnification pursuant to Section 10.1 6(a) or Section 5(b) with respect to any Losses pursuant to this Article X Section 6 or Section 5 shall be reduced by the amount of the Mitigation Payment, if any, received by the Person entitled to indemnification pursuant to Section 10.1 6(a) or Section 5 with respect to such Losses. In the event a payment is made to a Person entitled to indemnification pursuant to Section 10.1 6(a) or Section 5(b) with respect to any Losses and thereafter such Person receives a Mitigation Payment with respect to such Losses, such Person shall reimburse the Party providing such indemnification an amount equal to the lesser of (iA) the Mitigation Payment and (iiB) the amount so paid by the Party providing such indemnification. (div) Any amounts payable to a Person entitled to indemnification pursuant to Section 10.1 6(a) or Section 5(b) with respect to any Losses pursuant to this Article X Section 6 or Section 5 shall be reduced by the amount of any insurance proceeds actually recovered (less the cost to collect the proceeds of such insurance and the amount, if any, of the retroactive or other premium adjustments reasonably attributable thereto) and the amount of any net Tax benefits actually received by available to such Person as a result of the payment, incurrence or accrual of such Losses.

Notice; Duty to Mitigate. (a) Each Party shall give written notice to the other Party as soon as practicable after becoming aware of any breach by such other Party of any representation, warranty, covenant, agreement or obligation in this Agreement. The failure to deliver such a notice, however, shall not release the other Party from any of its obligations under this Article X except to the extent that such other Party is materially and irreversibly prejudiced by such failure. (b) Each Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 shall use its Commercially Reasonable Efforts to mitigate Losses for which indemnification may be sought pursuant to this Article XX or Article IX, including, including (i) using its Commercially Reasonable Efforts to secure payment from insurance policies available and existing on the Closing Date that provide coverage with respect to such Losses (an “Insurance Payment”) and (ii) using its Commercially Reasonable Efforts to secure reimbursement, indemnity or other payment from any third Person obligated by contract or otherwise to reimburse, indemnify or pay the Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 with respect to such Losses (a “Third Party Payment” and, together with an Insurance Payment, a “Mitigation Payment”). Notwithstanding anything in this Agreement to the contrary contained hereincontrary, the recovery by a Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 from any Party providing such indemnification shall not relieve the Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 of its obligation to mitigate Losses pursuant to applicable Law or this Section 10.4(b)10.3. (c) Any amounts payable to a Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 with respect to any Losses pursuant to this Article X or Article IX shall be reduced by the amount of the Mitigation Payment, if any, received by the Person entitled to indemnification pursuant to Section 10.1 or Article IX with respect to such Losses. In the event a payment is made to a Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 with respect to any Losses and thereafter such Person receives a Mitigation Payment with respect to such Losses, such Person shall reimburse the Party providing such indemnification an amount equal to the lesser of (i) the Mitigation Payment and (ii) the amount so paid by the Party providing such indemnification. (d) Any amounts payable to a Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 with respect to any Losses pursuant to this Article X or Article IX shall be reduced by the amount of any insurance proceeds actually recovered (less the cost to collect the proceeds of such insurance and the amount, if any, of the retroactive or other premium adjustments reasonably attributable thereto) and the amount of any net Tax benefits actually received by available to such Person as a result of the payment, incurrence or accrual of such Losses.

Notice; Duty to Mitigate. (a) Each Party shall give written notice to the other Party as soon as practicable after becoming aware of any breach by such other Party of any representation, warranty, covenant, agreement or obligation in this Agreement. The failure to deliver such a notice, however, shall not release the other Party from any of its obligations under this Article X except to the extent that such other Party is materially and irreversibly prejudiced by such failure. (b) Each Person entitled to indemnification pursuant to Section 10.1 shall use its Commercially Reasonable Efforts to mitigate Losses for which indemnification may be sought pursuant to this Article X10 upon and after becoming aware of any event or condition which would reasonably be expected to give rise to any indemnification claim pursuant to this Article 10, including, including (i) using its Commercially Reasonable Efforts to secure payment from insurance policies available and existing on the Closing Date that provide coverage with respect to such Losses (an “Insurance Payment”) and (ii) using its Commercially Reasonable Efforts to secure reimbursement, indemnity or other payment from any third Person obligated by contract or otherwise to reimburse, indemnify or pay the Person entitled to indemnification pursuant to Section 10.1 with respect to such Losses (a “Third Party Payment” and, together with an Insurance Payment, a “Mitigation Payment”). Notwithstanding anything to the contrary contained herein, the recovery by a Person entitled to indemnification pursuant to Section 10.1 from any Party providing such indemnification shall not relieve the Person entitled to indemnification pursuant to Section 10.1 of its obligation to mitigate Losses pursuant to applicable Law or this Section 10.4(b)10.3. (c) Any amounts payable to a Person entitled to indemnification pursuant to Section 10.1 with respect to any Losses pursuant to this Article X 10 shall be reduced by the after-Tax amount of the Mitigation Payment, if any, actually received by the Person entitled to indemnification pursuant to Section 10.1 with respect to such LossesLosses (net of all costs and expenses incurred by such Person in connection with pursuing and recovering such Mitigation Payment). In the event a payment is made to a Person entitled to indemnification pursuant to Section 10.1 with respect to any Losses and thereafter such Person receives a Mitigation Payment with respect to such Losses, such Person shall reimburse the Party providing such indemnification an amount equal to the lesser of (i) the after-Tax amount of the Mitigation Payment (net of all costs and expenses incurred by such Person in connection with pursuing and recovering such Mitigation Payment) and (ii) the amount so paid by the Party providing such indemnification. (d) Any amounts payable In addition to a Person entitled to any other limitations on indemnification pursuant to Section 10.1 that may apply, with respect to any claim for indemnification that any of the Buyer Indemnified Parties may assert regarding Environmental Laws or Hazardous Material, Seller shall not have any obligation with respect to such claim to the extent the Losses pursuant for which indemnification are sought (i) arise out of a breach of obligations under this Section 10.3, (ii) arise out of any action to this Article X shall be reduced meet a cleanup or remedial standard under Environmental Law that is more stringent or costly than the standard applicable as of the Closing Date for the continued use of the relevant property or facility as it was used as of the Closing Date or (iii) are ordinary costs of any post- Closing decommissioning or demolition of any Purchased Asset owned or leased by the Acquired Companies. (e) The amount of any net Taxes for which indemnification is provided under this Agreement shall be computed without regard to (and any duty to mitigate shall not require the use of) any item of loss, deduction, credit or other Tax benefits actually received by such Person asset or attribute of, the Buyer or any Subsidiaries or Affiliates (other than the Acquired Companies) for any period or any item of loss, deduction, credit or other Tax asset or attribute of any Acquired Company or any Subsidiaries or Affiliates attributable to any Post-Closing Taxable Period and not attributable to increased tax basis of any Acquired Company arising as a result of the payment, incurrence or accrual application of such Lossessubsection 40(3.1) of the Tax Act relating to a Pre-Closing Taxable Period for which the Buyer has been indemnified hereunder.

Notice; Duty to Mitigate. (a) Each Party shall give written notice to the other Party as soon as practicable after becoming aware of any breach by such other Party of any representation, warranty, covenant, agreement or obligation in this Agreement. The failure to deliver such a notice, however, shall not release the other Party from any of its obligations under this Article X except to the extent that such other Party is materially and irreversibly prejudiced by such failure. (b) Each Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 shall use its Commercially Reasonable Efforts to mitigate Losses for which indemnification may be sought pursuant to this Article XX or Article IX, including, (i) using its Commercially Reasonable Efforts to secure payment from insurance policies available and existing on the Closing Date that provide coverage with respect to such Losses (an “Insurance Payment”) ), and (ii) using its Commercially Reasonable Efforts to secure reimbursement, indemnity or other payment from any third Person obligated by contract or otherwise to reimburse, indemnify or pay the Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 with respect to such Losses (a “Third Party Payment” and, together with an Insurance Payment, a “Mitigation Payment”). Notwithstanding anything in this Agreement to the contrary contained hereincontrary, the recovery by a Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 from any Party providing such indemnification shall not relieve the Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 of its obligation to mitigate Losses pursuant to applicable Law or this Section 10.4(b)10.3. (c) Any amounts payable to a Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 with respect to any Losses pursuant to this Article X or Article IX shall be reduced by the amount of the Mitigation Payment, if any, received by the Person entitled to indemnification pursuant to Section 10.1 or Article IX with respect to such Losses. In the event a payment is made to a Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 with respect to any Losses and thereafter such Person receives a Mitigation Payment with respect to such Losses, such Person shall reimburse the Party providing such indemnification an amount equal to the lesser of (i) the Mitigation Payment and (ii) the amount so paid by the Party providing such indemnification. (d) Any amounts payable to a Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 with respect to any Losses pursuant to this Article X or Article IX shall be reduced by the amount of any insurance proceeds actually recovered (less the cost to collect the proceeds of such insurance and the amount, if any, of the retroactive or other premium adjustments reasonably attributable thereto) and the amount of any net Tax benefits actually received by available to such Person as a result of the payment, incurrence or accrual of such Losses.

Notice; Duty to Mitigate. (a) Each Party shall give written notice to the other Party as soon as practicable after becoming aware of any breach by such other Party of any representation, warranty, covenant, agreement or obligation in this Agreement. The failure to deliver such a notice, however, shall not release the other Party from any of its obligations under this Article X except to the extent that such other Party is materially and irreversibly prejudiced by such failure. (b) Each Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 shall use its Commercially Reasonable Efforts to mitigate Losses for which indemnification may be sought pursuant to this Article XX or Article IX, including, including (i) using its Commercially Reasonable Efforts to secure payment from insurance policies available and existing on the Closing Date that provide coverage with respect to such Losses (an “Insurance Payment”) ), and (ii) using its Commercially Reasonable Efforts to secure reimbursement, indemnity or other payment from any third Person obligated by contract or otherwise to reimburse, indemnify or pay the Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 with respect to such Losses (a “Third Party Payment” and, together with an Insurance Payment, a “Mitigation Payment”). Notwithstanding anything in this Agreement to the contrary contained hereincontrary, the recovery by a Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 from any Party providing such indemnification shall not relieve the Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 of its obligation to mitigate Losses pursuant to applicable Law or this Section 10.4(b)10.3. (c) Any amounts payable to a Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 with respect to any Losses pursuant to this Article X or Article IX shall be reduced by the amount of the Mitigation Payment, if any, received by the Person entitled to indemnification pursuant to Section 10.1 or Article IX with respect to such Losses. In the event a payment is made to a Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 with respect to any Losses and thereafter such Person receives a Mitigation Payment with respect to such Losses, such Person shall reimburse the Party providing such indemnification an amount equal to the lesser of (i) the Mitigation Payment and (ii) the amount so paid by the Party providing such indemnification. (d) Any amounts payable to a Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 with respect to any Losses pursuant to this Article X or Article IX shall be reduced by the amount of any insurance proceeds actually recovered (less the cost to collect the proceeds of such insurance and the amount, if any, of the retroactive or other premium adjustments reasonably attributable thereto) and the amount of any net Tax benefits actually received by available to such Person as a result of the payment, incurrence or accrual of such Losses.

Notice; Duty to Mitigate. (a) Each Party shall give written notice to the other Party as soon as practicable after becoming aware of any breach by such other Party of any representation, warranty, covenant, agreement or obligation in this Agreement. The failure to deliver such a notice, however, shall not release the other Party from any of its obligations under this Article X except to the extent that such other Party is materially and irreversibly prejudiced by such failure. (b) Each Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 shall use its Commercially Reasonable Efforts to mitigate Losses for which indemnification may be sought pursuant to this Article XX or Article IX, including, (i) using its Commercially Reasonable Efforts to secure payment from insurance policies available and existing on the Closing Date that provide coverage with respect to such Losses (an “Insurance Payment”) and (ii) using its Commercially Reasonable Efforts to secure reimbursement, indemnity or other payment from any third Person obligated by contract or otherwise to reimburse, indemnify or pay the Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 with respect to such Losses (a “Third Party Payment” and, together with an Insurance Payment, a “Mitigation Payment”). Notwithstanding anything in this Agreement to the contrary contained hereincontrary, the recovery by a Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 from any Party providing such indemnification shall not relieve the Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 of its obligation to mitigate Losses pursuant to applicable Law or this Section 10.4(b)10.3. (c) Any amounts payable to a Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 with respect to any Losses pursuant to this Article X or Article IX shall be reduced by the amount of the Mitigation Payment, if any, received by the Person entitled to indemnification pursuant to Section 10.1 or Article IX with respect to such Losses. In the event a payment is made to a Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 with respect to any Losses and thereafter such Person receives a Mitigation Payment with respect to such Losses, such Person shall reimburse the Party providing such indemnification an amount equal to the lesser of (i) the Mitigation Payment and (ii) the amount so paid by the Party providing such indemnification. (d) Any amounts payable to a Person entitled to indemnification pursuant to Section 10.1 or Section 9.2 with respect to any Losses pursuant to this Article X or Article IX shall be reduced by the amount of any insurance proceeds actually recovered (less the cost to collect the proceeds of such insurance and the amount, if any, of the retroactive or other premium adjustments reasonably attributable thereto) and the amount of any net Tax benefits actually received by available to such Person as a result of the payment, incurrence or accrual of such Losses.