Determination of Covered Losses. The amount of any Covered Loss subject to indemnification hereunder shall be calculated net of (a) any net insurance proceeds actually received by the indemnitee on account of such Covered Loss and (b) the present value of any net Tax benefit recognized by the indemnitee arising from the recognition of the Covered Loss and any other payment received with respect to a Covered Loss (and in computing the net Tax benefit, any Tax cost resulting from receipt or accrual of an indemnification payment (including reduction in depreciation or amortization deductions with respect to the Purchased Assets and the assets of the Companies) shall be taken into account (without reduction for any “deductible,” “self insurance retention” or any similar risk retention liabilities in respect of applicable insurance policies or other expenses incurred in connection with such recovery). The indemnitee shall (a) use its commercially reasonable efforts to seek recovery under all insurance policies covering any Covered Loss and (b) use its commercially reasonable efforts to mitigate any actual or potential Covered Loss, in each case to the same extent as it would if such Covered Loss were not subject to indemnification pursuant to the terms of this Agreement. In the event any payment is made in respect of Covered Losses, the indemnitor who made such payment shall be subrogated to the extent of such payment to any related rights of recovery of the indemnitee receiving such payment against any third party. In the event that an insurance recovery is actually received by the indemnitee with respect to any Covered Loss for which it has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery or benefit actually received shall be made promptly to the indemnitor that provided such indemnification to the indemnitee.
Determination of Covered Losses
