Common use of Computation of Indemnifiable Losses Clause in Contracts

Computation of Indemnifiable Losses. (a) Any amount payable pursuant to this Article IX (i) shall be decreased to the extent of any insurance proceeds actually received or applied by the recipient of such amount in respect of an indemnifiable Loss, (ii) shall be (A) increased to take account of any net Tax cost incurred by the Indemnified Party arising from the receipt of indemnity payments hereunder and (B) reduced by the amount, if any, of Tax Benefits actually realized by the Indemnified Party prior to the date such indemnity payment is made arising from the incurrence or payment of any such Loss (net of any and all out-of-pocket costs and expenses incurred by Buyer and/or its Affiliates (including the Banner Companies) in calculating or determining the amount, if any, of such actually realized Tax Benefits) and (iii) shall be reduced by any recoveries from third Persons pursuant to indemnification or otherwise in respect thereto. To the extent that any Tax Benefit is actually realized following the date that an indemnity payment is made, then no later than thirty (30) days after the annual Tax Return of the applicable Banner Company has been filed that takes into account the deduction or loss generated as a result of the Losses that gave rise to such indemnity payment, the Indemnified Party shall pay to the Indemnifying Party the amount of the Tax Benefits actually realized as a result of the Losses that gave rise to such indemnity payment. Notwithstanding anything to the contrary contained herein, no Tax Benefit shall be required to be paid by an Indemnified Party to an Indemnifying Party pursuant to this Section 9.6(a) to the extent such Tax Benefit has not been actually realized prior to the third taxable year following the taxable year that the deduction or loss relating to the Loss that gave rise to indemnification hereunder was generated. (b) Notwithstanding anything to the contrary contained herein, Section 9.6(a)(ii) shall not apply with respect to any amounts payable pursuant to this Article IX or otherwise resulting from, arising out of or in connection with amounts payable under (i) the Retention Incentive Plan and (ii) the Change of Control Amendments (including, for the avoidance of doubt, any stay bonuses owing pursuant to such amendments), and VION and Seller acknowledge that any Tax Benefits related thereto shall be for the exclusive benefit of Buyer and its Affiliates (including the Banner Companies after the Closing). (c) Each Indemnified Party shall be obligated in connection with any claim for indemnification based on any inaccuracy or breach of any representation or warranty described in Sections 9.1(a) or 9.2(a) to use all commercially reasonable efforts to obtain any insurance proceeds and indemnification payments payable to such Indemnified Party by any third party available with regard to the applicable claims. If an Indemnified Party shall have received the payment required by this Agreement from an Indemnifying Party in respect of damages and shall subsequently receive insurance proceeds, indemnification payments or other amounts in respect of such damages, then such Indemnified Party shall promptly repay to the Indemnifying Party a sum equal to the amount of such insurance proceeds, indemnification payments or other amounts actually received. With respect to any claim for indemnification for Losses arising from or relating to a breach of the representations and warranties made by VION and Seller in Section 4.22, VION and Seller shall not have any liability for any such Losses unless (i) Buyer has complied with its obligations under Section 7.12 and (ii) each Indemnified Party has otherwise complied with the provisions of this Section 9.6(c); provided, however, that nothing in this Section 9.6(c) shall prevent any Indemnified Party from delivering notice to any Indemnifying Party of an assertion of a claim for indemnification in accordance with Section 9.3(a) prior to its compliance with this Section 9.6(c).

Computation of Indemnifiable Losses. (a) Any amount payable pursuant to this Article IX (i) VII shall be decreased to the extent of any insurance proceeds actually received or applied by the recipient of such amount in respect of an indemnifiable Loss, (ii) shall be (A) increased to take account of any net Tax cost incurred amounts recovered by the Indemnified Party arising from any third party (including insurance proceeds) in respect of indemnifiable Losses. If payment of the receipt of amount for which indemnification is provided under Article VII gives rise to a currently realizable Tax Benefit (as defined below) to the Indemnified Party, the indemnity payments hereunder and (B) payment shall be reduced by the amountamount of the Tax Benefit available to the Indemnified Party. For purposes of this Section 7.3, a “Tax Benefit” means the excess, if any, of Tax Benefits actually realized (i) the amount by which the tax liability of the Indemnified Party prior (or group of corporations including the Indemnified Party) is reduced (including without limitation, by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to the date such indemnity payment is made arising refund, credit or otherwise) plus any related interest received from the incurrence or payment of any such Loss relevant tax authority over (net of any and all out-of-pocket costs and expenses incurred ii) the amount by Buyer and/or its Affiliates (including which the Banner Companies) in calculating or determining the amount, if any, of such actually realized Tax Benefits) and (iii) shall be reduced by any recoveries from third Persons pursuant to indemnification or otherwise in respect thereto. To the extent that any Tax Benefit is actually realized following the date that an indemnity payment is made, then no later than thirty (30) days after the annual Tax Return tax liability of the applicable Banner Company has been filed that takes into account the deduction or loss generated Indemnified Party is increased as a result of the Losses that gave rise to such indemnity payment. Where an Indemnified Party has other losses, deductions, credits or items available to it, the Indemnified Tax Benefit from any losses, deductions, credits or items relating to the indemnity payment shall be deemed to be realized first before any other losses, deductions, credits or items are realized. For the purposes of this Section 7.3, a Tax Benefit is “currently realizable” to the extent that it can be reasonably anticipated that such Tax Benefit will be realized in the current taxable period or year or in any Tax Return with respect thereto (including through a carryback to a prior taxable period) or in any taxable period or year prior to the date of the indemnity payment. In the event that there should be a determination disallowing the Tax Benefit, the Indemnifying Party shall pay be liable to refund to the Indemnifying Indemnified Party the amount of the Tax Benefits actually realized as a result of the Losses that gave rise to such indemnity payment. Notwithstanding anything any related reduction previously allowed or payments previously made to the contrary contained herein, no Tax Benefit shall be required to be paid by an Indemnified Party to an Indemnifying Party pursuant to this Section 9.6(a) to 7.3. The Parties shall act in good faith in calculating the extent such Tax Benefit has not been actually realized prior to the third taxable year following the taxable year that the deduction or loss relating to the Loss that gave rise to indemnification hereunder was generated. (b) Notwithstanding anything to the contrary contained herein, Section 9.6(a)(ii) shall not apply with respect to any amounts payable pursuant to this Article IX Section 7.3. The Indemnified Parties shall pursue payment under or otherwise resulting from, arising out of from any insurer or in connection with amounts payable under (i) the Retention Incentive Plan and (ii) the Change of Control Amendments (including, for the avoidance of doubt, any stay bonuses owing pursuant to such amendments), and VION and Seller acknowledge that any Tax Benefits related thereto shall be for the exclusive benefit of Buyer and its Affiliates (including the Banner Companies after the Closing). (c) Each Indemnified Party shall be obligated in connection with any claim for indemnification based on any inaccuracy or breach of any representation or warranty described in Sections 9.1(a) or 9.2(a) to use all commercially reasonable efforts to obtain any insurance proceeds and indemnification payments payable to such Indemnified Party by any third third-party available with regard to the applicable claims. If an Indemnified Party shall have received the payment required by this Agreement from an Indemnifying Party in respect of damages and shall subsequently receive insurance proceeds, indemnification payments or other amounts in respect of such damages, then such Indemnified Party shall promptly repay Losses prior to the Indemnifying Party a sum equal to the amount of such insurance proceeds, indemnification payments or other amounts actually received. With respect to any claim for indemnification for Losses arising pursuing payment from or relating to a breach of the representations and warranties made by VION and Seller in Section 4.22, VION and Seller shall not have any liability for any such Losses unless (i) Buyer has complied with its obligations under Section 7.12 and (ii) each Indemnified Party has otherwise complied with the provisions of this Section 9.6(c); provided, however, that nothing in this Section 9.6(c) shall prevent any Indemnified Party from delivering notice to any Indemnifying Party Party. Buyer shall not, and shall cause the Company and the Company Subsidiaries not to, without the prior written consent of an assertion of a claim for indemnification Seller, waive, release, compromise, reduce or otherwise amend in accordance with Section 9.3(a) prior any way that would limit coverage, any insurance policies or coverage in effect at the Closing that relate to its compliance with this Section 9.6(c)Losses.

Computation of Indemnifiable Losses. (a) Any amount payable pursuant to this Article IX VI shall be: (i) shall be decreased to the extent of any third-party insurance proceeds actually received or applied by the recipient of such amount Indemnified Party in respect of an indemnifiable Loss, (ii) shall be (A) increased reduced to take into account of any net Tax cost incurred by the Indemnified Party arising from the receipt of indemnity payments hereunder and (B) reduced by the amount, if any, of Tax Benefits benefit actually realized by the Indemnified Party prior to in the date such year of the indemnity payment is made arising or any earlier year that arises from the incurrence or payment of any such Loss (net and increased to take into account any Tax detriment actually suffered by the Indemnified Party that arises from the receipt of such amount payable or the incurrence or payment of any and all out-of-pocket costs and expenses incurred by Buyer and/or its Affiliates (including the Banner Companies) in calculating or determining the amountsuch Loss, if any, of such actually realized Tax Benefits) and (iii) shall be reduced by any recoveries from third Persons pursuant to indemnification or otherwise in respect thereto. To . (b) The amount of indemnification to which a Indemnified Party shall be entitled under this Article VI shall be determined by: (i) the extent that any Tax Benefit is actually realized following the date that an indemnity payment is made, then no later than thirty (30) days after the annual Tax Return of the applicable Banner Company has been filed that takes into account the deduction or loss generated as a result of the Losses that gave rise to such indemnity payment, written agreement between the Indemnified Party and the Indemnifying Party, (ii) a judgment or decree of any court of competent jurisdiction, or (iii) any other means to which the Indemnified Party and the Indemnifying Party shall agree. (c) In any case where an Indemnified Party recovers from third Persons any amount (other than any amounts deducted pursuant to Section 6.05(a)) in respect of a matter with respect to which such Indemnified Party has received payment satisfying in full all Losses arising from any and all matters subject to indemnification hereunder, such Indemnified Party shall promptly pay over to the Indemnifying Party the amount of the Tax Benefits actually realized as a result of the Losses that gave rise to such indemnity payment. Notwithstanding anything to the contrary contained hereinso recovered, no Tax Benefit shall be required to be paid by an Indemnified Party to an Indemnifying Party pursuant to this Section 9.6(a) to the extent such Tax Benefit has not been actually realized prior to amount exceeds the third taxable year following the taxable year that the deduction or loss relating to the Loss that gave rise aggregate amount of all Losses arising from matters subject to indemnification hereunder was generated. (b) Notwithstanding anything to after deducting therefrom the contrary contained herein, Section 9.6(a)(ii) shall not apply with respect to any amounts payable pursuant to this Article IX or otherwise resulting from, arising out full amount of or the expenses incurred by it in connection with amounts payable under (i) the Retention Incentive Plan and (ii) the Change of Control Amendments (including, for the avoidance of doubt, any stay bonuses owing pursuant to procuring such amendmentsrecovery), and VION and Seller acknowledge that any Tax Benefits related thereto shall be for the exclusive benefit of Buyer and its Affiliates (including the Banner Companies after the Closing). (c) Each Indemnified Party shall be obligated but not in connection with any claim for indemnification based on any inaccuracy or breach excess of any representation or warranty described in Sections 9.1(a) or 9.2(a) to use all commercially reasonable efforts to obtain any insurance proceeds and indemnification payments payable to such amount previously received by the Indemnified Party by any third party available with regard to the applicable claims. If an Indemnified Party shall have received the payment required by this Agreement from an Indemnifying Party in respect of damages and shall subsequently receive insurance proceeds, indemnification payments or other amounts in respect of such damages, then such Indemnified Party shall promptly repay to the Indemnifying Party a sum equal to the amount of such insurance proceeds, indemnification payments or other amounts actually received. With respect to any claim for indemnification for Losses arising from or relating to a breach of the representations and warranties made by VION and Seller in Section 4.22, VION and Seller shall not have any liability for any such Losses unless (i) Buyer has complied with its obligations under Section 7.12 and (ii) each Indemnified Party has otherwise complied with the provisions of this Section 9.6(c); provided, however, that nothing in this Section 9.6(c) shall prevent any Indemnified Party from delivering notice to any Indemnifying Party of an assertion of a claim for indemnification in accordance with Section 9.3(a) prior to its compliance with this Section 9.6(c)matter.

Computation of Indemnifiable Losses. (a) Any amount payable pursuant to this Article IX (i) shall be decreased to the extent of any insurance proceeds actually received or applied receivable by the recipient of such amount in respect of an indemnifiable LossLoss as set forth in Section 9.7, and (ii) shall be (A) increased to take account of any net Tax cost incurred by the Indemnified Party arising from the receipt of indemnity payments hereunder and (B) reduced by the amount, if any, of Tax Benefits actually realized by the Indemnified Party prior to the date such indemnity payment is made arising from the incurrence or payment of any such Loss (net of any and all out-of-pocket costs and expenses incurred by Buyer and/or its Affiliates (including the Banner Companies) in calculating or determining the amount, if any, of such actually realized Tax Benefits) and (iii) shall be reduced by any recoveries from third Persons pursuant to indemnification or otherwise in respect thereto. To . (b) Reserved. (c) The amount of indemnification to which an Indemnified Party shall be entitled under this Article IX shall be determined: (i) by the extent that any Tax Benefit is actually realized following the date that an indemnity payment is made, then no later than thirty (30) days after the annual Tax Return of the applicable Banner Company has been filed that takes into account the deduction or loss generated as a result of the Losses that gave rise to such indemnity payment, written agreement between the Indemnified Party and the Indemnifying Party; (ii) by a final judgment or decree of any court of competent jurisdiction or, in the case of income tax indemnification under Section 9.3 hereof, “determination” within the meaning of Section 1313(a) of the Code or its equivalent in jurisdictions outside the United States; or (iii) by any other means to which the Indemnified Party and the Indemnifying Party shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have the burden of proof in establishing the amount of Losses suffered by it. (d) Any party receiving indemnity shall assign to the Indemnifying Party all of its claims for recovery against third Persons as to such Losses, whether by insurance coverage, contribution claims, subrogation or otherwise. In any case where an Indemnified Party recovers from third Persons any amount (other than any amounts deducted pursuant to Section 9.5(e) hereof) in respect of a matter with respect to which an Indemnifying Party has indemnified it pursuant to this Article IX, such Indemnified Party shall promptly pay over to the Indemnifying Party the amount so recovered (after deducting therefrom the full amount of the expenses incurred by it in procuring such recovery), but not in excess of the sum of (i) any amount previously so paid by the Indemnifying Party to or on behalf of the Indemnified Party in respect of such matter and (ii) any amount expended by the Indemnifying Party in pursuing or defending any claim arising out of such matter. (e) If either Purchaser or Seller is required to indemnify the other pursuant to the provisions of this Article IX for any Loss or Liability (“Indemnifiable Cost”), then (i) the Indemnified Party shall reimburse the Indemnifying Party for any Tax Benefits actually realized Benefit resulting from the payment of the Indemnifiable Cost by the Indemnified Party and (ii) the indemnity payment required to made by the Indemnifying Party shall be increased by the amount of any Tax Cost borne by the Indemnified Party with respect to such payment (or with respect to any increase in an indemnity payment as a result of this clause (ii)). The Tax Benefit reimbursement shall be made when actually realized by the Losses Indemnified Party, whether such realization occurs in the year the indemnification payment is made or in a later year via a loss carryforward, foreign tax credit carryforward or otherwise. “Tax Benefit” shall mean the excess, if any, of (i) Taxes that gave rise would have been incurred by the Indemnified Party for the year at issue if the Indemnifiable Cost had not been incurred by the Indemnified Party, over (ii) the actual Taxes payable by the Indemnified Party. “Tax Cost” shall mean the amount of any Tax imposed upon a payment made pursuant to this Article IX and actually paid by the Indemnified Party in the taxable year in which the payment was received plus the value of any tax asset used to offset any such indemnity paymentTax, as determined by the Indemnified Party in good faith. In years subsequent to the year the Tax Benefit is realized, the Indemnifying Party shall reimburse the Indemnified Party for the Reduced Tax Benefit, if any, resulting from the Tax consequences of the Indemnifiable Cost. “Reduced Tax Benefit” shall mean the difference, if any, between the Taxes actually incurred by the Indemnified Party in the subsequent year at issue and the Taxes that the Indemnified Party would have incurred had the Indemnifiable Cost not been incurred by the Indemnified Party. Where an Indemnified Party has losses, deductions, credits or other items available to it, the Tax Benefit from an Indemnifiable Cost shall be treated for purposes of this section as actually realized only after the utilization of all such other losses, deductions, credits or other items. The amount of any reimbursement hereunder shall be adjusted to reflect any final determination with respect to the Indemnified Party’s liability for Taxes, and payments required by this Section 9.5(e) relating to Tax Benefits shall be satisfied by a separate cash payment to the party entitled to the benefit of such reimbursement, shall be separate from any other indemnification obligation under this Article IX, and the amount due under this Section 9.5(e) shall not delay or affect any other amounts due under this Article IX. Notwithstanding anything to the contrary contained hereinin this Agreement, no Tax Benefit shall be required to be paid by an Indemnified Party to an Indemnifying Party pursuant to the obligations of the parties under this Section 9.6(a9.5(e) to the extent such Tax Benefit has not been actually realized prior to the third taxable year following the taxable year that the deduction or loss relating to the Loss that gave rise to indemnification hereunder was generated. (b) Notwithstanding anything to the contrary contained herein, Section 9.6(a)(ii) shall not apply with respect to any amounts payable pursuant to this Article IX or otherwise resulting from, arising out of or in connection with amounts payable under (i) the Retention Incentive Plan and (ii) the Change of Control Amendments (including, reimbursements for the avoidance of doubt, any stay bonuses owing pursuant to such amendments), and VION and Seller acknowledge that any Tax Benefits related thereto and Reduced Tax Benefits shall not be subject to a deductible, threshold or similar concept and shall be for the exclusive benefit of Buyer and its Affiliates (including the Banner Companies after the Closing)unlimited in amount. (c) Each Indemnified Party shall be obligated in connection with any claim for indemnification based on any inaccuracy or breach of any representation or warranty described in Sections 9.1(a) or 9.2(a) to use all commercially reasonable efforts to obtain any insurance proceeds and indemnification payments payable to such Indemnified Party by any third party available with regard to the applicable claims. If an Indemnified Party shall have received the payment required by this Agreement from an Indemnifying Party in respect of damages and shall subsequently receive insurance proceeds, indemnification payments or other amounts in respect of such damages, then such Indemnified Party shall promptly repay to the Indemnifying Party a sum equal to the amount of such insurance proceeds, indemnification payments or other amounts actually received. With respect to any claim for indemnification for Losses arising from or relating to a breach of the representations and warranties made by VION and Seller in Section 4.22, VION and Seller shall not have any liability for any such Losses unless (i) Buyer has complied with its obligations under Section 7.12 and (ii) each Indemnified Party has otherwise complied with the provisions of this Section 9.6(c); provided, however, that nothing in this Section 9.6(c) shall prevent any Indemnified Party from delivering notice to any Indemnifying Party of an assertion of a claim for indemnification in accordance with Section 9.3(a) prior to its compliance with this Section 9.6(c).

Computation of Indemnifiable Losses. (a) Any amount payable pursuant to Section 8.5(a) or this Article IX XII (i) shall be decreased to the extent of any insurance proceeds (less any reasonable related costs and expenses, including the aggregate cost of pursuing any related insurance claims) and Tax savings (determined on a “with and without” basis) that is actually received or applied by the recipient of such amount (or its Affiliates) in respect of an indemnifiable Loss, Loss and (ii) shall be (A) increased to take account of any net Tax cost incurred by the Indemnified Party arising from the receipt of indemnity payments hereunder and (B) reduced by the amount, if any, of Tax Benefits actually realized by the Indemnified Party prior to the date such indemnity payment is made arising from the incurrence or payment of any such Loss (net of any and all out-of-pocket costs and expenses incurred by Buyer and/or its Affiliates (including the Banner Companies) in calculating or determining the amount, if any, of such actually realized Tax Benefits) and (iii) shall be reduced by any recoveries actually received from third Persons parties pursuant to indemnification or otherwise in respect theretothereto net of all costs and expenses incurred with respect to the receipt of such recoveries, in each case to avoid any duplicative recovery. To For the extent that avoidance of doubt, except with respect to the R&W Policy, no party hereto shall have any obligation to seek to recover or bring any action to obtain recovery from any insurance policy or third party in connection with making a claim under this Article XII. (b) In any case where any insurance proceeds, Tax Benefit is actually savings or indemnity payments or other third-party recoveries are realized following the date that by an indemnity Indemnified Party subsequent to receipt by such Indemnified Party of any indemnification payment is madein respect of a matter with respect to which an Indemnifying Party has indemnified it pursuant to Section 8.5(a) or this Article XII, then no later than thirty (30) days after the annual Tax Return of the applicable Banner Company has been filed that takes into account the deduction or loss generated as a result of the Losses that gave rise to such indemnity payment, the Indemnified Party shall promptly pay over to the Indemnifying Party the amount so recovered (after deducting therefrom the full amount of the Tax Benefits actually realized as a result reasonable costs and expenses incurred by it in procuring such recovery), but not in excess of the Losses that gave rise to such indemnity payment. Notwithstanding anything to the contrary contained herein, no Tax Benefit shall be required to be paid by an Indemnified Party to an Indemnifying Party pursuant to this Section 9.6(a) to the extent such Tax Benefit has not been actually realized prior to the third taxable year following the taxable year that the deduction or loss relating to the Loss that gave rise to indemnification hereunder was generated. (b) Notwithstanding anything to the contrary contained herein, Section 9.6(a)(ii) shall not apply with respect to any amounts payable pursuant to this Article IX or otherwise resulting from, arising out sum of or in connection with amounts payable under (i) any amount previously so paid by the Retention Incentive Plan Indemnifying Party to or on behalf of the Indemnified Party in respect of such matter and (ii) any amount expended by the Change of Control Amendments (including, for the avoidance of doubt, any stay bonuses owing pursuant to such amendments), and VION and Seller acknowledge that any Tax Benefits related thereto shall be for the exclusive benefit of Buyer and its Affiliates (including the Banner Companies after the Closing). (c) Each Indemnified Party shall be obligated in connection with any claim for indemnification based on any inaccuracy or breach of any representation or warranty described in Sections 9.1(a) or 9.2(a) to use all commercially reasonable efforts to obtain any insurance proceeds and indemnification payments payable to such Indemnified Party by any third party available with regard to the applicable claims. If an Indemnified Party shall have received the payment required by this Agreement from an Indemnifying Party in respect of damages and shall subsequently receive insurance proceeds, indemnification payments pursuing or other amounts in respect defending any claim arising out of such damages, then such Indemnified Party shall promptly repay to the Indemnifying Party a sum equal to the amount of such insurance proceeds, indemnification payments or other amounts actually received. With respect to any claim for indemnification for Losses arising from or relating to a breach of the representations and warranties made by VION and Seller in Section 4.22, VION and Seller shall not have any liability for any such Losses unless (i) Buyer has complied with its obligations under Section 7.12 and (ii) each Indemnified Party has otherwise complied with the provisions of this Section 9.6(c); provided, however, that nothing in this Section 9.6(c) shall prevent any Indemnified Party from delivering notice to any Indemnifying Party of an assertion of a claim for indemnification in accordance with Section 9.3(a) prior to its compliance with this Section 9.6(c)matter.

Computation of Indemnifiable Losses. (a) Any amount payable pursuant to this Article IX 11: (i) shall be decreased to the extent of any Third Party insurance proceeds actually received or applied by the recipient of such amount Buyer Indemnified Party in respect of an indemnifiable Loss, (ii) shall be (A) increased reduced to take into account of any net Tax cost incurred by the Indemnified Party arising from the receipt of indemnity payments hereunder and (B) reduced by the amount, if any, of Tax Benefits benefit actually realized by the Buyer Indemnified Party prior to Parties in the date such year of the indemnity payment is made arising or any earlier year that arises from the incurrence or payment of any such Loss (net and increased to take into account any Tax detriment actually suffered by the Buyer Indemnified Parties that arises from the receipt of such amount payable or the incurrence or payment of any and all out-of-pocket costs and expenses incurred by Buyer and/or its Affiliates (including the Banner Companies) in calculating or determining the amount, if any, of such actually realized Tax Benefits) Loss and (iii) shall be reduced by any recoveries from third Persons pursuant to indemnification or otherwise in respect thereto. To the extent that any Tax Benefit is actually realized following the date that an indemnity payment is made, then no later than thirty (30) days after the annual Tax Return of the applicable Banner Company has been filed that takes into account the deduction or loss generated as a result of the Losses that gave rise to such indemnity payment, the Indemnified Party shall pay to the Indemnifying Party the amount of the Tax Benefits actually realized as a result of the Losses that gave rise to such indemnity payment. Notwithstanding anything to the contrary contained herein, no Tax Benefit shall be required to be paid by an Indemnified Party to an Indemnifying Party pursuant to this Section 9.6(a) to the extent such Tax Benefit has not been actually realized prior to the third taxable year following the taxable year that the deduction or loss relating to the Loss that gave rise to indemnification hereunder was generated. (b) Notwithstanding anything The amount of indemnification to the contrary contained herein, Section 9.6(a)(ii) which a Buyer Indemnified Party shall not apply with respect to any amounts payable pursuant to be entitled under this Article IX or otherwise resulting from, arising out of or in connection with amounts payable under 11 shall be determined: (i) by the Retention Incentive Plan written agreement between the Buyer Indemnified Party and the Seller Representative; (ii) by a judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Change of Control Amendments (including, for Buyer Indemnified Party and the avoidance of doubt, any stay bonuses owing pursuant to such amendments), and VION and Seller acknowledge that any Tax Benefits related thereto Representative shall be for the exclusive benefit of Buyer and its Affiliates (including the Banner Companies after the Closing)agree. (c) Each In any case where a Buyer Indemnified Party shall be obligated in connection with recovers from third Persons any claim for indemnification based on amount (other than any inaccuracy or breach of any representation or warranty described in Sections 9.1(aamounts deducted pursuant to Section 11.4(a)) or 9.2(a) to use all commercially reasonable efforts to obtain any insurance proceeds and indemnification payments payable to such Indemnified Party by any third party available with regard to the applicable claims. If an Indemnified Party shall have received the payment required by this Agreement from an Indemnifying Party in respect of damages and shall subsequently receive insurance proceeds, indemnification payments or other amounts in a matter with respect of to which such damages, then such Buyer Indemnified Party shall promptly repay to the Indemnifying Party a sum equal to the amount of such insurance proceeds, indemnification payments or other amounts actually received. With respect to any claim for indemnification for has received payment satisfying in full all Losses arising from any and all matters subject to indemnification hereunder (from the Indemnification Escrow Funds or relating to a breach of the representations and warranties made by VION and Seller in Section 4.22Deferred Payment Holdback), VION and Seller shall not have any liability for any such Losses unless (i) in the case of a payment previously received from the Indemnification Escrow Funds, Buyer has complied shall cause such Buyer Indemnified Party to promptly pay over (A) if prior to the final release of the Indemnification Escrow Funds to the Sellers pursuant to Section 10.9, to the Escrow Agent for deposit into the Indemnification Escrow Account (subject to release to the Sellers pursuant to Section 10.9 as though a pending matter had been resolved) and (B) if after the final release of the Indemnification Escrow Funds to the Exchange Agent for release to the Sellers pursuant to Section 10.9, to the Sellers, pro rata in accordance with its obligations under Section 7.12 their respective Escrow Percentages, the amount so recovered (after deducting therefrom the full amount of the expenses incurred by the Buyer Indemnified Party in procuring such recovery) and (ii) each Indemnified Party has otherwise complied with in the provisions case of this Section 9.6(c); provided, however, that nothing in this Section 9.6(c) shall prevent any Indemnified Party from delivering notice to any Indemnifying Party of an assertion a previous satisfaction of a claim for indemnification Losses through inclusion in the Settled Claims Amount, the Settled Claims Amount shall be reduced by such amount (after deducting therefrom the full amount of the expenses incurred by the Buyer Indemnified Party in procuring such recovery) (and corresponding changes shall be made to the Settled Claims Adjustment Amount and the Deferred Obligation Amount) and, if after any payment to the Sellers pursuant to Section 3.11(a) or (b), Buyer shall pay to the Exchange Agent for release to the Sellers, pro rata in accordance with Section 9.3(atheir respective DPO Percentages, an amount equal to the excess of the Deferred Obligation Amount over the Deferred Payment Holdback. Clause (i) prior of the immediately preceding sentence shall only apply to its compliance the extent such amount, together with this Section 9.6(c)all amounts previously received from the Indemnification Escrow Funds, exceeds the aggregate amount of all Losses that would have been subject to indemnification from the Indemnification Escrow Funds. Clause (ii) of the second preceding sentence shall only apply to the extent such amount (after deducting therefrom the full amount of the expenses incurred by the Buyer Indemnified Party in procuring such recovery) if applied to reduce the Settled Claims Amount, would have reduced the Settled Claims Adjustment Amount.