Common use of Procedures for Establishment of Deficiencies Clause in Contracts

Procedures for Establishment of Deficiencies. (i) In the event that any claim shall be asserted against a party which, if sustained, would result in a Deficiency, the indemnified party, within a reasonable time after learning of such claim, shall notify the indemnifying party of such claim, and shall extend to the indemnifying party a reasonable opportunity to defend against such claim, at the indemnifying party’s sole expense and through legal counsel reasonably satisfactory to the indemnified party, provided that the indemnifying party proceeds in good faith, expeditiously and diligently. The indemnified party shall, at its option and expense, have the right to participate in any defense undertaken by the indemnifying party with legal counsel of its own selection. If the indemnifying party, in the reasonable judgment of the indemnified party, has failed to prosecute such defense in good faith in an expeditious and diligent manner, the indemnified party shall have the right to defend and/or settle such claim on behalf of the indemnifying party. No settlement or compromise of any claim which may result in a Deficiency may be made by the indemnifying party without the prior written consent of the indemnified party unless the proposed settlement is solely a monetary settlement and prior to such settlement or compromise the indemnifying party acknowledges in writing the indemnifying party obligation to pay in full the amount of the settlement and all associated expenses and the indemnified party is furnished with either (A) security reasonably satisfactory to the indemnified party that the indemnifying party will in fact pay such amount and expenses, or (B) a full release from the claimant in form and substance reasonably satisfactory to the indemnified party. (ii) In the event that the indemnified party asserts the existence of any Deficiency, the indemnified party shall give written notice to the indemnifying party of the nature and amount of the Deficiency asserted. The indemnified party shall reasonably cooperate with such actions as the indemnifying party may seek to take to mitigate the impact of any alleged breach. Such request shall not be deemed to constitute an admission of liability on the part of the indemnifying party. If the indemnifying party, within a period of fifteen (15) business days after the giving of such notice by the indemnified party, shall not give written notice to the indemnified party announcing its intention to contest such assertion of the indemnified party (such notice by the indemnifying party being hereinafter called the “Contest Notice”), such assertion of the indemnified party shall be deemed accepted and the amount of the Deficiency shall be deemed established. In the event, however, that a Contest Notice is given to the indemnified party within said 15-day period, then the contested assertion of a Deficiency may be established pursuant to the provisions of Section 19 herein. (iii) The indemnified and indemnifying parties may agree in writing, at any time, as to the existence and amount of a Deficiency, and, upon the execution of such agreement, such Deficiency shall be deemed established.

Procedures for Establishment of Deficiencies. (ia) In the event that any claim shall be asserted by any third party against a party the Buyer Indemnities or Seller Indemnitees (Buyer Indemnitees or Seller Indemnitees, as the case may be, hereinafter, the "Indemnitees"), which, if sustained, would result in a DeficiencyBuyer Deficiency or a Seller Deficiency (collectively with the Buyer Deficiencies, the indemnified party"Deficiencies"), then the Indemnitees, within a reasonable time after learning of such claim, shall notify the indemnifying party or parties required to indemnify the Indemnities under the terms of Section 7.2(a) or 7.2(b), as applicable (the "Indemnifying Party") of such claim, and shall extend to the indemnifying party Indemnifying Party a reasonable opportunity to defend against such claim, at the indemnifying party’s Indemnifying Party's sole expense and through legal counsel reasonably satisfactory acceptable to the indemnified partyIndemnitees, provided that the indemnifying party Indemnifying Party proceeds in good faith, expeditiously and diligently. The indemnified party Indemnitees shall, at its their option and expense, with respect to claims not solely for money damages, have the right to participate in any defense undertaken by the indemnifying party Indemnifying Party with legal counsel of its their own selection. If the indemnifying party, in the reasonable judgment of the indemnified party, has failed to prosecute such defense in good faith in an expeditious and diligent manner, the indemnified party shall have the right to defend and/or settle such claim on behalf of the indemnifying party. No settlement or compromise of any claim which may result in a Deficiency may be made by the indemnifying party Indemnifying Party without the prior written consent of the indemnified party unless the proposed settlement is solely a monetary settlement and Indemnitees unless: (A) prior to such settlement or compromise the indemnifying party Indemnifying Party acknowledges in writing the indemnifying party its obligation to pay in full the amount of the settlement or compromise and all associated expenses expenses; and (B) the indemnified party is Indemnitees are furnished with either (A) security reasonably satisfactory to the indemnified party Indemnitees that the indemnifying party Indemnifying Party will in fact pay such amount and expenses. No settlement or compromise of any claim that acknowledges any liability for a violation of law, or (B) purports to impose any non-monetary obligation upon a full release from the claimant in form and substance reasonably satisfactory to the indemnified party may be entered into without such party's consent. (iib) In With respect to claims that are not third party claims, in the event that the indemnified party asserts Indemnitees assert the existence of any DeficiencyDeficiency against the Indemnifying Party, the indemnified party they shall give written notice to the indemnifying party Indemnifying Party of the nature and amount of the Deficiency asserted. The indemnified party shall reasonably cooperate with such actions as the indemnifying party may seek to take to mitigate the impact of any alleged breach. Such request shall not be deemed to constitute an admission of liability on the part of the indemnifying party. If the indemnifying partyIf, within a period of fifteen (15) business calendar days after the giving of such the written notice by the indemnified party, shall Indemnitees the Indemnifying Party does not give provide written notice to the indemnified party announcing its intention Indemnitees that the Indemnifying Party intends to contest such the assertion of by the indemnified party Indemnitees (such notice by the indemnifying party Indemnifying Party being hereinafter called referred to as the “"Contest Notice”"), such assertion of the indemnified party Indemnitees shall be deemed accepted and the amount of the Deficiency shall be deemed established. In the event, however, that a Contest Notice is given to the indemnified party Indemnitees within said 15-fifteen calendar day period, then the contested assertion of a Deficiency may shall be established pursuant settled by arbitration to be held in San Diego, California by an arbitrator chosen through and in accordance with the Commercial Rules of the American Arbitration Association or its successor body. The determination of the arbitrator shall be delivered in writing to the provisions Indemnifying Party and the Indemnitees and shall be final, binding and conclusive upon all of Section 19 hereinthe parties hereto, and the amount of the Deficiency, if any, determined to exist, shall be deemed established. (iiic) The indemnified Indemnitees and indemnifying parties the Indemnifying Party may agree in writing, at any time, as to the existence and amount of a Deficiency, and, upon the execution of such agreement, agreement such Deficiency shall be deemed established.

Procedures for Establishment of Deficiencies. (i) In the event that any claim shall be asserted against a party which, if sustained, would result in a Deficiency, the indemnified party, within a reasonable time after learning of such claim, shall notify the indemnifying party of such claim, and shall extend to the indemnifying party a reasonable opportunity to defend against such claim, at the indemnifying party’s sole expense and through legal counsel reasonably satisfactory to the indemnified party, provided that the indemnifying party proceeds in good faith, expeditiously and diligently. The indemnified party shall, at its option and expense, have the right to participate in any defense undertaken by the indemnifying party with legal counsel of its own selection. If the indemnifying party, in the reasonable judgment of the indemnified party, has failed to prosecute such defense in good faith in an expeditious and diligent manner, the indemnified party shall have the right to defend and/or settle such claim on behalf of the indemnifying party. No settlement or compromise of any claim which may result in a Deficiency may be made by the indemnifying party without the prior written consent of the indemnified party unless the proposed settlement is solely a monetary settlement and prior to such settlement or compromise the indemnifying party acknowledges in writing the indemnifying party obligation to pay in full the amount of the settlement and all associated expenses and the indemnified party is furnished with either (A) security reasonably satisfactory to the indemnified party that the indemnifying party will in fact pay such amount and expenses, or (B) a full release from the claimant in form and substance reasonably satisfactory to the indemnified party. (ii) In the event that the indemnified party asserts the existence of any Deficiency, the indemnified party shall give written notice to the indemnifying party of the nature and amount of the Deficiency asserted. The indemnified party shall reasonably cooperate with such actions as the indemnifying party may seek to take to mitigate the impact of any alleged breach. Such request shall not be deemed to constitute an admission of liability on the part of the indemnifying party. If the indemnifying party, within a period of fifteen (15) 15 business days after the giving of such notice by the indemnified party, shall not give written notice to the indemnified party announcing its intention to contest such assertion of the indemnified party (such notice by the indemnifying party being hereinafter called the “Contest Notice”), such assertion of the indemnified party shall be deemed accepted and the amount of the Deficiency shall be deemed established. In the event, however, that a Contest Notice is given to the indemnified party within said 15-day period, then the contested assertion of a Deficiency may be established pursuant to the provisions of Section 19 hereinby judicial determination. (iii) The indemnified and indemnifying parties may agree in writing, at any time, as to the existence and amount of a Deficiency, and, upon the execution of such agreement, such Deficiency shall be deemed established.

Procedures for Establishment of Deficiencies. (ia) In the event that any claim shall be asserted by any third party against a party an Indemnified Party which, if sustained, would result in a Deficiency, the indemnified partysuch Indemnified Party, within a reasonable time after learning of such claim, shall notify the indemnifying party Indemnitor of such claim, and shall extend to the indemnifying party Indemnitor a reasonable opportunity to defend against such claim, claim at the indemnifying party’s Indemnitor's sole expense and through legal counsel reasonably satisfactory acceptable to the indemnified partyIndemnified Party, provided that the indemnifying party proceeds Indemnitor proceed in good faith, expeditiously and diligently. The indemnified party shallNo determination shall be made pursuant to subparagraph (b) below while such defense is still being made until the earlier of (i) the resolution of said claim by Indemnitor with the claimant, at its option and expense, have or (ii) the right to participate in any defense undertaken by the indemnifying party with legal counsel of its own selection. If the indemnifying party, in the reasonable judgment termination of the indemnified party, has failed defense by Indemnitor against such claim or the failure of indemnitor to prosecute such defense in good faith in an expeditious and diligent manner. The Indemnified Party shall be entitled to rely upon the opinion of its counsel as to the occurrence of either of said events. The Indemnified Party shall, the indemnified party shall at its option, have the right to participate in any defense undertaken by Indemnitor with legal counsel of its own selection, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (I) the employment of such counsel shall have been authorized in writing by Indemnitor in connection with the defense of such action, suit, or proceeding, or (II) Indemnitor shall fail actively and diligently to defend and/or settle such claim, in either of which events the defense of such claim on behalf of the indemnifying partyIndemnified Party shall be controlled by the Indemnified Party and that portion of any fees and expenses of counsel related to matters covered by the indemnity agreement contained in Section 8.01 shall be borne by Indemnitor. The Indemnified Party shall be kept fully informed of such claim at all stages thereof whether or not they are so represented. Each party shall make reasonably available to the other party and its attorneys and accountants all books and records of such party relating to such claim and the parties hereto shall render to each other such assistance as they may reasonably require of each other in order to ensure a proper and adequate defense. No settlement or compromise of any claim which may result in a Deficiency may be made by the indemnifying party Indemnitor without the prior written consent of the indemnified Indemnified party unless the proposed settlement is solely a monetary settlement and (i) prior to such settlement or compromise the indemnifying party Indemnitor acknowledges in writing the indemnifying party its obligation to pay in full the amount of the settlement or compromise and all associated expenses and (ii) the indemnified party Indemnified Party is furnished with either (A) security reasonably satisfactory to the indemnified party Indemnified Party that the indemnifying party Indemnitor will in fact pay such amount and expenses, or (B) a full release from the claimant in form and substance reasonably satisfactory to the indemnified party. (iib) In the event that the indemnified party Indemnified Party asserts the existence of any Deficiency, the indemnified party Indemnified Party shall give written notice to the indemnifying party Indemnitor of the nature and amount of the Deficiency asserted. The indemnified party shall reasonably cooperate with such actions as the indemnifying party may seek to take to mitigate the impact of any alleged breach. Such request shall not be deemed to constitute an admission of liability on the part of the indemnifying party. If the indemnifying partyIndemnitor, within a period of fifteen twenty (1520) business days after the giving of such notice by the indemnified partyIndemnified Party's notice, shall not give written notice to the indemnified party Indemnified Party announcing its intention intent to contest such assertion of the indemnified party Indemnified Party (such notice by the indemnifying party Indemnitor being hereinafter called the “Contest Notice”"contest notice"), such assertion of the indemnified party Indemnified Party shall be deemed accepted and the amount of the Deficiency shall be deemed established. In the event, however, that a Contest Notice contest notice is given to the indemnified party Indemnified Party within said 15twenty-day period, then the contested assertion of a Deficiency may shall be established pursuant settled by arbitration to be held in Philadelphia, Pennsylvania in accordance with the provisions rules of Section 19 hereinthe American Arbitration Association then obtaining. The arbitrator shall be a firm or person with experience pertaining to registered investment advisors mutually selected by the Shareholders and Buyer (or by the rules of the American Arbitration Association absent such agreement within ten (10) business days after a request for such selection by the Indemnified Party or Indemnitor) which has not been engaged by VFAM, the Shareholders or Buyer or their respective subsidiaries or affiliates during the prior five years. The determination of the arbitrator(s) and the reasons therefor shall be delivered in writing to Indemnitor and the Indemnified Party and shall be final, binding and conclusive upon all of the parties hereto, and the amount of the Deficiency, if any, determined to exist, shall be deemed established. (iiic) The indemnified Indemnitor and indemnifying parties the Indemnifying Party may agree in writing, at any time, as to the existence and amount of a Deficiency, and, upon the execution of such agreement, agreement such Deficiency shall be deemed established.

Procedures for Establishment of Deficiencies. (ia) In the event that any claim shall be asserted by any third party against a party an Indemnified Party which, if sustained, would result in a Deficiency, the indemnified partysuch Indemnified Party, within a reasonable time after learning of such claim, shall notify the indemnifying party Indemnitor of such claim, and shall extend to the indemnifying party Indemnitor a reasonable opportunity to defend against such claim, claim at the indemnifying party’s Indemnitor's sole expense and through legal counsel reasonably satisfactory acceptable to the indemnified partyIndemnified Party, provided that the indemnifying party proceeds Indemnitor proceed in good faith, expeditiously and diligently. The indemnified party shallNo determination shall be made pursuant to subparagraph (b) below while such defense is still being made until the earlier of (i) the resolution of said claim by Indemnitor with the claimant, at its option and expense, have or (ii) the right to participate in any defense undertaken by the indemnifying party with legal counsel of its own selection. If the indemnifying party, in the reasonable judgment termination of the indemnified party, has failed defense by Indemnitor against such claim or the failure of Indemnitor to prosecute such defense in good faith in an expeditious and diligent manner. The Indemnified Party shall be entitled to rely upon the opinion of its counsel as to the occurrence of either of said events. The Indemnified Party shall, the indemnified party shall at its option, have the right to participate in any defense undertaken by Indemnitor with legal counsel of its own selection, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (I) the employment of such counsel shall have been authorized in writing by Indemnitor in connection with the defense of such action, suit, or proceeding, or (II) Indemnitor shall fail actively and diligently to defend and/or settle such claim, in either of which events the defense of such claim on behalf of the indemnifying partyIndemnified Party shall be controlled by the Indemnified Party and that portion of any fees and expenses of counsel related to matters covered by the indemnity agreement contained in Section 8.1 shall be borne by Indemnitor. The Indemnified Party shall be kept fully informed of such claim at all stages thereof whether or not they are so represented. Each party shall make reasonably available to the other party and its attorneys and accountants all books and records of such party relating to such claim and the parties hereto shall render to each other such assistance as they may reasonably require of each other in order to ensure a proper and adequate defense. No settlement or compromise of any claim which may result in a Deficiency may be made by the indemnifying party Indemnitor without the prior written consent of the indemnified party Indemnified Party unless the proposed settlement is solely a monetary settlement and (i) prior to such settlement or compromise the indemnifying party Indemnitor acknowledges in writing the indemnifying party its obligation to pay in full the amount of the settlement or compromise and all associated expenses and (ii) the indemnified party Indemnified Party is furnished with either (A) security reasonably satisfactory to the indemnified party Indemnified Party that the indemnifying party Indemnitor will in fact pay such amount and expenses, or (B) a full release from the claimant in form and substance reasonably satisfactory to the indemnified party. (iib) In the event that the indemnified party Indemnified Party asserts the existence of any Deficiency, the indemnified party Indemnified Party shall give written notice to the indemnifying party Indemnitor of the nature and amount of the Deficiency asserted. The indemnified party shall reasonably cooperate with such actions as the indemnifying party may seek to take to mitigate the impact of any alleged breach. Such request shall not be deemed to constitute an admission of liability on the part of the indemnifying party. If the indemnifying partyIndemnitor, within a period of fifteen twenty (1520) business days after the giving of such notice by the indemnified partyIndemnified Party's notice, shall not give written notice to the indemnified party Indemnified Party announcing its intention intent to contest such assertion of the indemnified party Indemnified Party (such notice by the indemnifying party Indemnitor being hereinafter called the “Contest Notice”"contest notice"), such assertion of the indemnified party Indemnified Party shall be deemed accepted and the amount of the Deficiency shall be deemed established. In the event, however, that a Contest Notice contest notice is given to the indemnified party Indemnified Party within said 15twenty-day period, then the contested assertion of a Deficiency may shall be established pursuant settled by arbitration to be held in Philadelphia, Pennsylvania in accordance with the provisions rules of Section 19 hereinthe American Arbitration Association then obtaining. The arbitrator shall be a firm or person mutually selected by the Shareholders and SBI (or by the rules of the American Arbitration Association absent such agreement within ten (10) business days after a request for such selection by the Indemnified Party or Indemnitor) which has not been engaged by SBI, the Shareholders or AGI or their respective subsidiaries or Affiliates during the prior five years. The determination of the arbitrator(s) and the reasons therefor shall be delivered in writing to Indemnitor and the Indemnified Party and shall be final, binding and conclusive upon all of the parties hereto, and the amount of the Deficiency, if any, determined to exist, shall be deemed established. (iiic) The indemnified Indemnitor and indemnifying parties the Indemnifying Party may agree in writing, at any time, as to the existence and amount of a Deficiency, and, upon the execution of such agreement, agreement such Deficiency shall be deemed established.

Procedures for Establishment of Deficiencies. (i) In the event that any claim shall be asserted by any party against a party the Physician Indemnitee which, if sustained, would result in a Deficiency, the indemnified partyapplicable Physician Indemnitee, within a reasonable time after learning of such claim, shall notify the indemnifying party USP Indemnitor of such claim, and shall extend to the indemnifying party USP Indemnitor a reasonable opportunity to defend against such claim, at the indemnifying party’s USP Indemnitor's sole expense and through legal counsel reasonably satisfactory acceptable to the indemnified partyapplicable Physician Indemnitee, provided that the indemnifying party proceeds USP Indemnitor proceed in good faith, expeditiously and diligently. No determination shall be made pursuant to subparagraph (ii) below while such defense is still being made until the earlier of (A) the resolution of said claim by the USP Indemnitor with the claimant or (B) the termination of the defense by the USP Indemnitor against such claim or the failure of the USP Indemnitor to prosecute such defense in good faith in an expeditious and diligent manner. The indemnified party applicable Physician Indemnitee shall be entitled to rely upon the opinion of its counsel as to the occurrence of either of said events. The applicable Physician Indemnitee shall, at its her option and expense, have the right to participate in any defense undertaken by the indemnifying party USP Indemnitor with legal counsel of its her own selection. If the indemnifying party, in the reasonable judgment of the indemnified party, has failed to prosecute such defense in good faith in an expeditious and diligent manner, the indemnified party shall have the right to defend and/or settle such claim on behalf of the indemnifying party. No settlement or compromise of any claim which may result in a Deficiency may be made by the indemnifying party USP Indemnitor without the prior written consent of the indemnified party Physician Indemnitee unless the proposed settlement is solely a monetary settlement and (y) prior to such settlement or compromise the indemnifying party USP Indemnitor acknowledges in writing the indemnifying party its obligation to pay in full the amount of the settlement or compromise and all associated expenses and the indemnified party (z) Physician Indemnitee is furnished with either (A) security reasonably satisfactory to the indemnified party Physician Indemnitee that the indemnifying party USP Indemnitor will in fact pay such amount and expenses, or (B) a full release from the claimant in form and substance reasonably satisfactory to the indemnified party. (ii) In the event that the indemnified party Physician Indemnitee asserts the existence of any Deficiency, the indemnified party Physician Indemnitee shall give written notice to the indemnifying party USP Indemnitor of the nature and amount of the Deficiency asserted. The indemnified party shall reasonably cooperate with such actions as the indemnifying party may seek to take to mitigate the impact of any alleged breach. Such request shall not be deemed to constitute an admission of liability on the part of the indemnifying party. If the indemnifying partyUSP Indemnitor, within a period of fifteen (15) business days after the giving of such notice by the indemnified partyPhysician Indemnitee's notice, shall not give written notice to the indemnified party Physician Indemnitee announcing its intention intent to contest such assertion of the indemnified party Physician Indemnitee (such notice by the indemnifying party USP Indemnitor being hereinafter called the “"Contest Notice”"), such assertion of the indemnified party Physician Indemnitee shall be deemed accepted and the amount of the Deficiency shall be deemed established. In the event, however, that a Contest Notice is given to the indemnified party Physician Indemnitee within said 15-fifteen day period, then the contested assertion of a Deficiency may shall be established pursuant settled by arbitration to be held in Philadelphia, Pennsylvania in accordance with the rules of the American Arbitration Association then pertaining. The costs of the arbitrators and the arbitration shall be borne 50% by the USP Indemnitor and 50% by the Physician Indemnitee. The determination of the arbitrator(s) shall be delivered in writing to the provisions USP Indemnitor and the Physician Indemnitee and shall be final, binding and conclusive upon all of Section 19 hereinthe parties hereto, and the amount of the Deficiency, if any, determined to exist, shall be deemed established. (iii) The indemnified Physician Indemnitee and indemnifying parties the USP Indemnitor may agree in writing, writing at any time, time as to the existence and amount of a Deficiency, and, upon the execution of such agreement, agreement such Deficiency shall be deemed established.

Procedures for Establishment of Deficiencies. (ia) In the event that any claim shall be asserted by any third party against a party the Buyer Indemnitees or Seller Indemnitees (Buyer Indemnitees or Seller Indemnitees, as the case may be, hereinafter, the "Indemnities"), which, if sustained, would result in a Deficiency, then the indemnified partyIndemnities, within a reasonable time after learning of such claim, shall notify the indemnifying party Indemnifying Party of such claim, and shall extend to the indemnifying party Indemnifying Party a reasonable opportunity to defend against such claim, at the indemnifying party’s Indemnifying Party's sole expense and through legal counsel reasonably satisfactory acceptable to the indemnified partyIndemnities, provided that the indemnifying party Indemnifying Party proceeds in good faith, expeditiously and diligently. The indemnified party Indemnities shall, at its their option and expense, have the right to participate in any defense undertaken by the indemnifying party Indemnifying Party with legal counsel of its their own selection. If the indemnifying party, in the reasonable judgment of the indemnified party, has failed to prosecute such defense in good faith in an expeditious and diligent manner, the indemnified party shall have the right to defend and/or settle such claim on behalf of the indemnifying party. No settlement or compromise of any claim which may result in a Deficiency may be made by the indemnifying party Indemnifying Party without the prior written consent of the indemnified party unless the proposed settlement is solely a monetary settlement and Indemnities unless: (A) prior to such settlement or compromise the indemnifying party Indemnifying Party acknowledges in writing the indemnifying party its obligation to pay in full the amount of the settlement or compromise and all associated expenses expenses; and (B) the indemnified party is Indemnities are furnished with either (A) security reasonably satisfactory to the indemnified party Indemnities that the indemnifying party Indemnifying Party will in fact pay such amount and expenses. No settlement or compromise of any claim which acknowledges any liability for a violation of law, or (B) a full release from the claimant in form and substance reasonably satisfactory purports to impose any non-monetary obligation on the indemnified party may be entered into without such party's consent . (iib) In the event that the indemnified party asserts Indemnities assert the existence of any DeficiencyDeficiency against the Indemnifying Party, the indemnified party they shall give written notice to the indemnifying party Indemnifying Party of the nature and amount of the Deficiency asserted. The indemnified party shall reasonably cooperate with such actions as the indemnifying party may seek to take to mitigate the impact of any alleged breach. Such request shall not be deemed to constitute an admission of liability on the part of the indemnifying party. If the indemnifying party, within a period of fifteen (15) business days after the giving of such the written notice by the indemnified party, shall Indemnities the Indemnifying Party does not give provide written notice to the indemnified party announcing its intention Indemnities that the Indemnifying Party intends to contest such the assertion of by the indemnified party Indemnities (such notice by the indemnifying party Indemnifying Party being hereinafter called referred to as the “"Contest Notice”"), such assertion of the indemnified party Indemnities shall be deemed accepted and the amount of the Deficiency shall be deemed established. In the event, however, that a Contest Notice is given to the indemnified party Indemnities within said 15-day period, then the contested assertion of a Deficiency may shall be established pursuant settled by arbitration to be held in Albuquerque, New Mexico, in accordance with the Commercial Rules of the American Arbitration Association then existing. The determination of the arbitrator shall be delivered in writing to the provisions Indemnifying Party and the Indemnities and shall be final, binding and conclusive upon all of Section 19 hereinthe parties hereto, and the amount of the Deficiency, if any, determined to exist, shall be deemed established. (iiic) The indemnified Indemnities and indemnifying parties the Indemnifying Party may agree in writing, at any time, as to the existence and amount of a Deficiency, and, upon the execution of such agreement, agreement such Deficiency shall be deemed established.

Procedures for Establishment of Deficiencies. (ia) In the event that any claim shall be asserted by any third party against a party the Jaymark Indemnitees or INTERCELL Indemnitees (Jaymark Indemnitees or INTERCELL Indemnitees, as the case may be, shall hereinafter be referred to as the "Indemnitees"), or any claim is asserted falling within the scope of Section 11.3 above, which, if sustained, would result in a Deficiency, then the indemnified partyIndemnitees, within a reasonable time after learning of such claim, shall notify the indemnifying party Indemnifying Party of such claim, and shall extend to the indemnifying party Indemnifying Party a reasonable opportunity to defend against such claim, at the indemnifying party’s Indemnifying Party's sole expense and through legal counsel reasonably satisfactory acceptable to the indemnified partyIndemnitees, provided that the indemnifying party Indemnifying Party proceeds in good faith, expeditiously and diligently. The indemnified party Indemnitees shall, at its their option and expense, have the right to participate in any defense undertaken by the indemnifying party Indemnifying Party with legal counsel of its their own selection. If the indemnifying party, in the reasonable judgment of the indemnified party, has failed to prosecute such defense in good faith in an expeditious and diligent manner, the indemnified party shall have the right to defend and/or settle such claim on behalf of the indemnifying party. No settlement or compromise of any claim which may result in a Deficiency may be made by the indemnifying party Indemnifying Party without the prior written consent of the indemnified party unless the proposed settlement is solely a monetary settlement and Indemnitees unless: (i) prior to such settlement or compromise the indemnifying party Indemnifying Party acknowledges in writing the indemnifying party its obligation to pay in full the amount of the settlement or compromise and all associated expenses expenses; and (ii) the indemnified party is Indemnitees are furnished with either (A) security reasonably satisfactory to the indemnified party Indemnitees that the indemnifying party Indemnifying Party will in fact pay such amount and expenses. No settlement or compromise of any claim which acknowledges any liability for a violation of law, or (B) a full release from the claimant in form and substance reasonably satisfactory purports to impose any non-monetary obligation on the indemnified party may be entered into without such party's consent. (iib) In the event that the indemnified party asserts Indemnitees assert the existence of any DeficiencyDeficiency against the Indemnifying Party, the indemnified party they shall give written notice to the indemnifying party Indemnifying Party of the nature and amount of the Deficiency asserted. The indemnified party shall reasonably cooperate with such actions as the indemnifying party may seek to take to mitigate the impact of any alleged breach. Such request shall not be deemed to constitute an admission of liability on the part of the indemnifying party. If the indemnifying party, within a period of fifteen thirty (1530) business days after the giving of such the written notice by the indemnified party, shall Indemnitees the Indemnifying Party does not give provide written notice to the indemnified party announcing its intention Indemnitees that the Indemnifying Party intends to contest such the assertion of by the indemnified party Indemnitees (such notice by the indemnifying party Indemnifying Party being hereinafter called referred to as the “"Contest Notice”"), such assertion of the indemnified party Indemnitees shall be deemed accepted and the amount of the Deficiency shall be deemed established. In the event, however, that a Contest Notice is given to the indemnified party Indemnitees within said 1530-day period, then the contested assertion of a Deficiency may shall be established pursuant settled by arbitration to be held in San Diego, California, in accordance with the Commercial Rules of the American Arbitration Association then existing. The determination of the arbitrator shall be delivered in writing to the provisions Indemnifying Party and the Indemnitees and shall be final, binding and conclusive upon all of Section 19 hereinthe parties hereto, and the amount of the Deficiency, if any, determined to exist, shall be deemed established. (iiic) The indemnified Indemnitees and indemnifying parties the Indemnifying Party may agree in writing, at any time, as to the existence and amount of a Deficiency, and, upon the execution of such agreement, agreement such Deficiency shall be deemed established. (d) Notwithstanding anything to the contrary in this Section 11.5, the failure to promptly notify the Indemnifying Party of any third party claim or the alleged existence of a Deficiency will not relieve the Indemnifying Party of any liability it may have to any Indemnitee, except to the extent that the Indemnifying Party demonstrates that it has been prejudiced by the Indemnitee's failure to timely give such notice.

Procedures for Establishment of Deficiencies. (i1) In the event that any claim shall be asserted against a party Purchaser Indemnitee which, if sustained, would result in a Deficiency, the indemnified partyPurchaser, within a reasonable time after learning of such claim, shall notify the indemnifying party Principal Shareholder Indemnitors from whom indemnity is claimed of such claim, and shall extend to the indemnifying party such Principal Shareholder Indemnitors a reasonable opportunity to defend against such claim, at the indemnifying party’s Principal Shareholder Indemnitors' sole -41- 42 expense and through legal counsel of Indemnitor's choosing who is reasonably satisfactory to the indemnified partyPurchaser, provided that that; (i) the indemnifying party proceeds Principal Shareholder Indemnitors proceed in good faith, expeditiously and diligently, and (ii) the failure to timely give such notice shall not negate or impair any indemnification obligation hereunder, but only give the Principal Shareholder Indemnitors the right to offset against any indemnity payment to be made by them hereunder any actual damage caused to them by the failure to timely give such notice. The indemnified party Purchaser shall, at its option and expense, have the right to participate in but not control any defense undertaken by the indemnifying party Principal Shareholder Indemnitors with legal counsel of its own selection. If the indemnifying party, in the reasonable judgment of the indemnified party, has failed Principal Shareholder Indemnitors fail to prosecute such defense in good faith in an expeditious and diligent manner, the indemnified party Purchaser shall have the right to defend and/or settle such claim on behalf of the indemnifying partysuch Principal Shareholder Indemnitors. No settlement or compromise of any claim which may result in a Deficiency may be made by the indemnifying party Purchaser Indemnitees or Principal Shareholder Indemnitors without the prior written consent of the indemnified party unless the proposed settlement is solely a monetary settlement and prior to such settlement or compromise the indemnifying party acknowledges in writing the indemnifying party obligation to pay in full the amount of the settlement and all associated expenses and the indemnified party is furnished with either (A) security reasonably satisfactory to the indemnified party that the indemnifying party other, which consent will in fact pay such amount and expenses, or (B) a full release from the claimant in form and substance reasonably satisfactory to the indemnified partynot be unreasonably withheld. (ii2) In the event that the indemnified party Purchaser asserts the existence of any Deficiency, the indemnified party Purchaser shall give written notice to the indemnifying party Principal Shareholders of the nature and amount of the Deficiency asserted. The indemnified party shall reasonably cooperate with such actions as the indemnifying party may seek to take to mitigate the impact of any alleged breach. Such request shall not be deemed to constitute an admission of liability on the part of the indemnifying party. If the indemnifying partyPrincipal Shareholders, within a period of fifteen (15) 30 business days after the giving of such notice by the indemnified partyPurchaser, shall not give written notice to the indemnified party Purchaser announcing its their intention to contest such assertion of the indemnified party Purchaser (such notice by the indemnifying party Principal Shareholders being hereinafter called the “"Contest Notice”"), such assertion of the indemnified party Purchaser shall be deemed accepted and the amount of the Deficiency shall be deemed established. In the event, however, that a Contest Notice is given to the indemnified party Purchaser within said 15thirty-day period, then the contested assertion of a Deficiency may shall be established pursuant to the provisions of Section 19 hereinby judicial determination. (iii) The indemnified and indemnifying parties may agree in writing, at any time, as to the existence and amount of a Deficiency, and, upon the execution of such agreement, such Deficiency shall be deemed established.

Procedures for Establishment of Deficiencies. (i) In the event that any claim shall be asserted by any party against a party one or more of the USP Indemnitees which, if sustained, would result in a Deficiency, the indemnified partyapplicable USP Indemnitees, within a reasonable time after learning of such claim, shall notify the indemnifying party Physician Indemnitors of such claim, and shall extend to the indemnifying party Physician Indemnitors a reasonable opportunity to defend against such claim, at the indemnifying party’s Physician Indemnitors' sole expense and through legal counsel reasonably satisfactory acceptable to the indemnified partyapplicable USP Indemnitees, provided that the indemnifying party proceeds Physician Indemnitors proceed in good faith, expeditiously and diligently. No determination shall be made pursuant to subparagraph (ii) below while such defense is still being made until the earlier of (A) the resolution of said claim by the Physician Indemnitors with the claimant, or (B) the termination of the defense by the Physician Indemnitors against such claim or the failure of the Physician Indemnitors to prosecute such defense in good faith in an expeditious and diligent manner. The indemnified party applicable USP Indemnitees shall be entitled to rely upon the opinion of its counsel as to the occurrence of either of said events. The applicable USP Indemnitees shall, at its their option and expense, have the right to participate in any defense undertaken by the indemnifying party Physician Indemnitors with legal counsel of its their own selection. If the indemnifying party, in the reasonable judgment of the indemnified party, has failed to prosecute such defense in good faith in an expeditious and diligent manner, the indemnified party shall have the right to defend and/or settle such claim on behalf of the indemnifying party. No settlement or compromise of any claim which may result in a Deficiency may be made by the indemnifying party Physician Indemnitors without the prior written consent of the indemnified party applicable USP Indemnitees unless the proposed settlement is solely a monetary settlement and (y) prior to such settlement or compromise the indemnifying party acknowledges Physician Indemnitors acknowledge in writing the indemnifying party their obligation to pay in full the amount of the settlement or compromise and all associated expenses and (z) the indemnified party is applicable USP Indemnitees are furnished with either (A) security reasonably satisfactory to the indemnified party applicable USP Indemnitees that the indemnifying party Physician Indemnitors will in fact pay such amount and expenses, or (B) a full release from the claimant in form and substance reasonably satisfactory to the indemnified party. (ii) In the event that the indemnified party asserts applicable USP Indemnitees assert the existence of any Deficiency, the indemnified party applicable USP Indemnitees shall give written notice to the indemnifying party Physician Indemnitors of the nature and amount of the Deficiency asserted. The indemnified party shall reasonably cooperate with such actions as the indemnifying party may seek to take to mitigate the impact of any alleged breach. Such request shall not be deemed to constitute an admission of liability on the part of the indemnifying party. If the indemnifying partyPhysician Indemnitors, within a period of fifteen (15) business days after the giving of such notice by the indemnified partyapplicable USP Indemnitees' notice, shall not give written notice to the indemnified party applicable USP Indemnitees announcing its intention their intent to contest such assertion of the indemnified party applicable USP Indemnitees (such notice by the indemnifying party Physician Indemnitors being hereinafter called the “Contest Notice”"contest notice"), such assertion of the indemnified party applicable USP Indemnitees shall be deemed accepted and the amount of the Deficiency shall be deemed established. In the event, however, that a Contest Notice contest notice is given to the indemnified party applicable USP Indemnitees within said 15fifteen-day period, then the contested assertion of a Deficiency may shall be established pursuant settled by arbitration to be held in Philadelphia, Pennsylvania in accordance with the rules of the American Arbitration Association then obtaining. The costs of the arbitrators and the arbitration shall be borne 50% by the Physician Indemnitors and 50% by the applicable USP Indemnitees. The determination of the arbitrator(s) shall be delivered in writing to the provisions Physician Indemnitors and the applicable USP Indemnitees and shall be final, binding and conclusive upon all of Section 19 hereinthe parties hereto, and the amount of the Deficiency, if any, determined to exist, shall be deemed established. (iii) The indemnified applicable USP Indemnitees and indemnifying parties the Physician Indemnitors may agree in writing, at any time, as to the existence and amount of a Deficiency, and, upon the execution of such agreement, agreement such Deficiency shall be deemed established.

Procedures for Establishment of Deficiencies. (ia) In the event that any claim shall be asserted by any third party against a party the Buyer Indemnitees or Seller Indemnitees (in either case, the "Indemnitees"), which, if sustained, would result in a Buyer Deficiency or a Seller Deficiency (in either case, a "Deficiency"), then the indemnified partyIndemnitees, within a reasonable time after learning of such claim, shall notify the indemnifying party required to indemnify the Indemnitees under the terms of Section 5.2(a) or 5.2(b), as applicable (the "Indemnifying Party") of such claim, and shall extend to the indemnifying party Indemnifying Party a reasonable opportunity to defend against such claim, at the indemnifying party’s Indemnifying Party's sole expense and through legal counsel reasonably satisfactory acceptable to the indemnified partyIndemnitees, provided that the indemnifying party Indemnifying Party proceeds in good faith, expeditiously and diligently. The indemnified party Indemnitees shall, at its their option and expense, with respect to claims not solely for money damages, have the right to participate in any defense undertaken by the indemnifying party Indemnifying Party with legal counsel of its their own selection. If the indemnifying party, in the reasonable judgment of the indemnified party, has failed to prosecute such defense in good faith in an expeditious and diligent manner, the indemnified party shall have the right to defend and/or settle such claim on behalf of the indemnifying party. No settlement or compromise of any claim which may result in a Deficiency may be made by the indemnifying party Indemnifying Party without the prior written consent of the indemnified party unless the proposed settlement is solely a monetary settlement and Indemnitees unless: (A) prior to such settlement or compromise the indemnifying party Indemnifying Party acknowledges in writing the indemnifying party its obligation to pay in full the amount of the settlement or compromise and all associated expenses expenses; and (B) the indemnified party is Indemnitees are furnished with either (A) security reasonably satisfactory to the indemnified party Indemnitees that the indemnifying party Indemnifying Party will in fact pay such amount and expenses. No settlement or compromise of any claim that acknowledges any liability for a violation of law, or (B) purports to impose any non-monetary obligation upon a full release from the claimant in form and substance reasonably satisfactory to the indemnified party may be entered into without such party's consent. (iib) In With respect to claims that are not third party claims, in the event that the indemnified party asserts Indemnitees assert the existence of any DeficiencyDeficiency against the Indemnifying Party, the indemnified party they shall give written notice to the indemnifying party Indemnifying Party of the nature and amount of the Deficiency asserted. The indemnified party shall reasonably cooperate with such actions as the indemnifying party may seek to take to mitigate the impact of any alleged breach. Such request shall not be deemed to constitute an admission of liability on the part of the indemnifying party. If the indemnifying partyIf, within a period of fifteen (15) business calendar days after the giving of such the written notice by the indemnified party, shall Indemnitees the Indemnifying Party does not give provide written notice to the indemnified party announcing its intention Indemnitees that the Indemnifying Party intends to contest such the assertion of by the indemnified party Indemnitees (such notice by the indemnifying party Indemnifying Party being hereinafter called referred to as the “"Contest Notice”"), such assertion of the indemnified party Indemnitees shall be deemed accepted and the amount of the Deficiency shall be deemed established. In the event, however, that a Contest Notice is given to the indemnified party Indemnitees within said 15-fifteen calendar day period, then the contested assertion of a Deficiency may shall be established pursuant settled by arbitration to be held in Los Angeles, California by a panel of three arbitrators chosen through and in accordance with the Commercial Rules of the American Arbitration Association or its successor body. The decision of the arbitrators shall be delivered in writing to the provisions Indemnifying Party and the Indemnitees and shall be final, binding and conclusive upon all of Section 19 hereinthe parties hereto and enforceable in a court of law, and the amount of the Deficiency, if any, determined to exist, shall be deemed established. (iiic) The indemnified Indemnitees and indemnifying parties the Indemnifying Party may agree in writing, at any time, as to the existence and amount of a Deficiency, and, upon the execution of such agreement, agreement such Deficiency shall be deemed established.