Common use of Certification of Losses Clause in Contracts

Certification of Losses. (a) If a Person that has the right to be indemnified, defended, or held harmless pursuant to this ARTICLE X (the “Determining Party”) is of the opinion that any Loss has occurred (a “Claim”), the Determining Party shall, by written notice (a “Claim Notice”), promptly notify the Party that has agreed to indemnify, defend, or hold harmless such Determining Party pursuant to this ARTICLE X (in the case of notice to the Sellers, other than Elite or the Physicians’ Representatives) (the “Indemnifying Party”), and each such Claim Notice shall specify in reasonable detail the circumstances and amount, if known, of such asserted Loss. Notwithstanding anything in this Agreement to the contrary, no Seller shall be liable with respect to any claim pursuant to Section 10.1 and Buyer shall not be liable with respect to any claim pursuant to Section 10.2 unless a Claim Notice is delivered to Elite and the Physicians’ Representatives or Buyer, as the case may be, within the applicable survival periods set forth in Section 10.6. (b) If the Indemnifying Party objects to any Claim, the Indemnifying Party shall give written notice of such objection to the Determining Party within 60 days after the date of the Indemnifying Party’s receipt of the applicable Claim Notice and shall state the basis for such objection and (if reasonably practicable) indicate the specific amount of such Claim that is in dispute (such notice, if timely given, should be referred to as a “Counter Notice”). If no Counter Notice is received by the Determining Party within such 60-day period, (i) such Claim shall be allowed and (ii) the Indemnifying Party shall promptly disburse to the Determining Party the amount of such Claim, to the extent that the Determining Party is entitled to be indemnified under this ARTICLE X. (c) If the Indemnifying Party delivers a Counter Notice, the Determining Party and the Indemnifying Party shall attempt to resolve the dispute and, if such parties are able to do so and agree that any part of the Claim should be paid, the Indemnifying Party shall promptly disburse to the Determining Party the agreed upon amount of such Claim, to the extent that the Determining Party is entitled to be indemnified under this ARTICLE X. (d) If the Determining Party and the Indemnifying Party are unable informally to resolve a disputed Claim within 20 days after the date of the Determining Party’s receipt of a Counter Notice regarding such disputed Claim (or a later date specified by the Determining Party and the Indemnifying Party in writing if the Determining Party and the Indemnifying Party so choose to extend such 20-day period) (such actual period, the “Negotiation Period”), then the following shall apply: (i) Within five Business Days following the expiration of the Negotiation Period, the Indemnifying Party shall pay to the Determining Party the amount of such Claim, if any, that the Parties agree in writing is not in dispute. (ii) If the Determining Party and the Indemnifying Party agree in writing within 15 days following the expiration of the Negotiation Period (or a later date specified by the Determining Party and the Indemnifying Party in writing if the Determining Party and the Indemnifying Party so choose to extend such 15-day period), that the dispute involves financial matters, such Claim shall be referred to, and determined by, an Independent Accounting Firm mutually acceptable to the Determining Party and the Indemnifying Party. The resolution of such disputed Claim by the Independent Accounting Firm shall be conclusive and binding upon the Determining Party and the Indemnifying Party as to financial matters but shall not extend to any non-financial interpretation of such Claim unless the Determining Party and the Indemnifying Party shall mutually agree in writing to the contrary. (iii) If the disputed Claim does not involve financial matters, or if the Determining Party and the Indemnifying Party are unable to agree in writing whether such disputed Claim involves financial matters or to what extent such disputed Claim involves financial matters within 15 days following the expiration of the Negotiation Period (or a later date specified by the Determining Party and the Indemnifying Party in writing if the Determining Party and the Indemnifying Party so choose to extend such 15-day period), then such disputed Claim shall be resolved by a court of competent jurisdiction in accordance with the provisions of Section 11.13. (iv) During the entire dispute resolution process described in this Section 10.3 (commencing with the delivery of the Claim Notice and until the final determination or award is rendered), Buyer shall (and shall cause the Company to) promptly provide Elite and the Physicians’ Representatives with, and grant prompt access to, all personnel, books, records, and documents of the Company that Elite and the Physicians’ Representatives may request as reasonably necessary to (A) investigate the Claim and (B) evidence or support the Sellers’ position regarding the Claim and any Counter Notice.