Common use of Procedures for Establishment of Deficiencies Clause in Contracts

Procedures for Establishment of Deficiencies. 11.3.1 In the event that any claim shall be asserted against Buyer or Company which, if sustained, would result in a Deficiency, Buyer, within a reasonable time after learning of such claim, shall notify Shareholder of such claim, and shall extend to Shareholder a reasonable opportunity to defend against such claim, at the Shareholder's sole expense and through legal counsel satisfactory to Buyer, such satisfaction not to be withheld unreasonably, provided that the Shareholder proceeds in good faith, expeditiously and diligently. No effort to recover the amount of the Deficiency related to such claim shall be made by Buyer pursuant to Section 11.3.2 while such defense is still being made until the earlier of (a) the resolution of said claim by the Shareholder with the claimant, or (b) the termination of the defense by the Shareholder against such claim or the failure of the Shareholder to prosecute such defense in good faith in an expeditious and diligent manner. Buyer shall be entitled to rely upon the opinion of its counsel as to the occurrence of either of said events. Buyer shall, at its option and expense, have the right to participate in any defense undertaken by the Shareholder with legal counsel of its own selection. No settlement or compromise of any claim which may result in a Deficiency may be made by the Shareholder without the prior written consent of Buyer unless prior to such settlement or compromise the Shareholder acknowledges in writing its obligation to pay in full the amount of the settlement or compromise and all associated expenses and Buyer is furnished with security reasonably satisfactory to Buyer that the Shareholder will in fact pay such amount and expenses. 11.3.2 In the event that Buyer asserts the existence of any Deficiency, Buyer shall give written notice to the Shareholder of the nature and amount of the Deficiency asserted. If the Shareholder, within a period of fifteen (15) days after the giving of such notice by Buyer, shall not give written notice to Buyer announcing its intention to contest such assertion of Buyer (such notice by the Shareholder being hereinafter called the "Contest Notice"), such assertion of Buyer 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 Buyer within said 15-day period, then the contested assertion of a Deficiency shall be settled by arbitration to be held in San Francisco, California in accordance with the commercial arbitration rules of the American Arbitration Association then obtaining. The determination of the arbitrator(s) shall be delivered in writing to Shareholder and Buyer and shall be final, binding and conclusive upon all of the parties hereto, and the amount of the Deficiency, if any, determined to exist by the arbitrator(s) shall be deemed established. 11.3.3 Buyer and the Shareholder 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. 11.3.1 (i) In the event that any claim shall be asserted against Buyer Buyer, the Corporation or Company the LLC which, if sustained, would result in a Deficiency, Buyer, within a reasonable time after learning of such claim, shall notify Shareholder the Holders of such claim, and shall extend to Shareholder the Holders a reasonable opportunity to defend against such claim, at the Shareholder's Holders' sole expense and through legal counsel reasonably satisfactory to Buyer, such satisfaction not to be withheld unreasonably, provided that the Shareholder proceeds Holders proceed in good faith, expeditiously and diligently. No effort to recover the amount of the Deficiency related to such claim shall be made by Buyer pursuant to Section 11.3.2 while such defense is still being made until the earlier of (a) the resolution of said claim by the Shareholder with the claimant, or (b) the termination of the defense by the Shareholder against such claim or the failure of the Shareholder to prosecute such defense in good faith in an expeditious and diligent manner. Buyer shall be entitled to rely upon the opinion of its counsel as to the occurrence of either of said events. Buyer shall, at its option and expense, have the right to participate in any defense undertaken by the Shareholder Holders with legal counsel of its own selection. If the Holders, in the reasonable judgment of Buyer, have failed to prosecute such defense in good faith in an expeditious and diligent manner, Buyer shall have the right to defend and/or settle such claim on behalf of the Holders. No settlement or compromise of any claim which may result in a Deficiency may be made by the Shareholder Holders without the prior written consent of Buyer unless the proposed settlement is solely a monetary settlement and prior to such settlement or compromise compromise, any Deficiency (including the Shareholder acknowledges costs of defense) shall first be charged against and shall be payable out of the Holdback, or, if the Holdback has been or is likely to be exhausted, the Holders acknowledge in writing its their obligation to pay in full the amount of the settlement or compromise and all associated expenses and Buyer is furnished with either (A) security reasonably satisfactory to Buyer that the Shareholder Holders will in fact pay such amount and expenses, or (B) a full release from the claimant in form and substance reasonably satisfactory to Buyer. 11.3.2 (ii) In the event that Buyer asserts the existence of any Deficiency, Buyer shall give written notice to the Shareholder Holders of the nature and amount of the Deficiency asserted. Buyers shall reasonably cooperate with such actions as the Holders or their representative 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 Holders. If the ShareholderHolders, within a period of fifteen (15) 15 business days after the giving of such notice by Buyer, shall not give written notice to Buyer announcing its their intention to contest such assertion of Buyer (such notice by the Shareholder Holders being hereinafter called the "Contest Notice"), such assertion of Buyer 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 Buyer within said 15fifteen-day period, then the contested assertion of a Deficiency shall may be settled established by arbitration to be held in San Francisco, California in accordance with the commercial arbitration rules of the American Arbitration Association then obtaining. The determination of the arbitrator(s) shall be delivered in writing to Shareholder and Buyer and shall be final, binding and conclusive upon all of the parties hereto, and the amount of the Deficiency, if any, determined to exist by the arbitrator(s) shall be deemed establishedjudicial determination. 11.3.3 (iii) Buyer and the Shareholder Holders 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. 11.3.1 In the event that any claim -------------------------------------------- shall be asserted against Buyer Buyer, Parent, or Company Corporation which, if sustained, would result in a Deficiency, BuyerBuyer or Parent, as the case may be, within a reasonable time after learning of such claim, shall notify Shareholder the Indemnitor of such claim, and shall extend to Shareholder the Indemnitor a reasonable opportunity to defend against such claim, at the ShareholderIndemnitor's sole expense and through legal counsel reasonably satisfactory to BuyerBuyer or Parent, as the case may be, and utilizing any insurance coverage which may be available with respect to such satisfaction not to be withheld unreasonably, claim and/or costs and expenses of the defense thereof; provided that the Shareholder Indemnitor proceeds in good faith, expeditiously and diligently. No effort to recover Buyer or Parent, as the amount of the Deficiency related to such claim shall be made by Buyer pursuant to Section 11.3.2 while such defense is still being made until the earlier of (a) the resolution of said claim by the Shareholder with the claimantcase may be, or (b) the termination of the defense by the Shareholder against such claim or the failure of the Shareholder to prosecute such defense in good faith in an expeditious and diligent manner. Buyer shall be entitled to rely upon the opinion of its counsel as to the occurrence of either of said events. Buyer shall, at its option and expense, have the right to participate in any defense undertaken by the Shareholder Indemnitor with legal counsel of its own selection. If the Indemnitor, in the reasonable judgment of Buyer or Parent, as the case may be, after written notice to Indemnitor and reasonable opportunity to cure has failed to prosecute such defense in good faith in an expeditious and diligent manner, Buyer or Parent, as the case may be, shall have the right to defend and/or settle such claim on behalf of the Indemnitor at the Indemnitor's expense utilizing any insurance coverage which may be available with respect to such claim and/or costs and expenses of the defense thereof. No settlement or compromise of any claim which may result in a Deficiency may be made by the Shareholder Indemnitor without the prior written consent of Buyer or Parent, as the case may be, unless the proposed settlement is solely a monetary settlement and prior to such settlement or compromise the Shareholder acknowledges Stockholders acknowledge in writing its their obligation to pay in full the amount of the settlement or compromise and all associated expenses expenses, subject to the limitations set forth in this Paragraph 12, and Buyer or Parent, as the case may be, is furnished with security a full release from the claimant in form and substance reasonably satisfactory to Buyer that or Parent, as the Shareholder will in fact pay such amount and expenses. 11.3.2 case may be. In connection with the event that Buyer asserts defense against the existence of any Deficiencyclaim, Buyer or Parent, as the case may be, shall give written notice make reasonably available (and shall cause Corporation to make reasonably available) to Stockholders and their accountants, attorneys, agents, and representatives during normal business hours the books and records (including any accountant's work papers), contracts, agreements, documents, instruments and other information relating to the Shareholder of the nature and amount of the Deficiency asserted. If the Shareholderclaim, within a period of fifteen (15) days after the giving of such notice by Buyer, shall not give written upon reasonable advance notice to Buyer announcing its intention or Parent, as the case may be, and shall otherwise cooperate in good faith with Stockholders with respect to contest such assertion of Buyer (such notice by the Shareholder being hereinafter called defense against the "Contest Notice")claim, such assertion of Buyer shall be deemed accepted and the amount of the Deficiency shall be deemed established. In the eventincluding in connection with compliance with any subpoena, request for documents, or similar request for discovery; provided, however, that Stockholders shall schedule such access or requests through an authorized representative of Buyer or Parent, as the case may be, and in such a Contest Notice is given way as to Buyer within said 15-day period, then the contested assertion of a Deficiency shall be settled by arbitration to be held in San Francisco, California in accordance with the commercial arbitration rules avoid material disruption of the American Arbitration Association then obtaining. The determination normal business operations of the arbitrator(s) shall be delivered in writing to Shareholder and Buyer and shall be final, binding and conclusive upon all of the parties hereto, and the amount of the Deficiency, if any, determined to exist by the arbitrator(s) shall be deemed establishedCorporation. 11.3.3 Buyer and the Shareholder 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. 11.3.1 7.3.1 In the event that any claim shall be asserted against Buyer or Company which, if sustained, would result in a Deficiency, Buyer, within a reasonable time after learning of such claim, shall notify Shareholder the Mansfields of such claim, and shall extend to Shareholder the Mansfields a reasonable opportunity to defend against such claim, at the Shareholder's Mansfields' sole expense and through legal counsel satisfactory to Buyer, such satisfaction not to be withheld unreasonably, provided that the Shareholder proceeds Mansfields proceed in good faith, expeditiously and diligently. No effort to recover the amount of the Deficiency related to such claim shall be made by Buyer pursuant to Section 11.3.2 7.3.2 while such defense is still being made until the earlier of (a) the resolution of said claim by the Shareholder Mansfields with the claimant, or (b) the termination of the defense by the Shareholder Mansfields against such claim or the failure of the Shareholder Mansfields to prosecute such defense in good faith in an expeditious and diligent manner. Buyer shall be entitled to rely upon the opinion of its counsel as to the occurrence of either of said events. Buyer shall, at its option and expense, have the right to participate in any defense undertaken by the Shareholder Mansfields with legal counsel of its own selection. No settlement or compromise of any claim which may result in a Deficiency may be made by the Shareholder Mansfields without the prior written consent of Buyer Buyer, not to be unreasonably withheld, unless prior to such settlement or compromise the Shareholder acknowledges Mansfields acknowledge in writing its their obligation to pay in full the amount of the settlement or compromise and all associated expenses and Buyer is furnished with security reasonably satisfactory to Buyer that the Shareholder will in fact pay such amount and expenses. 11.3.2 In 7.3.2 If a dispute arises between the event that Buyer asserts parties relating to this Agreement, the existence of any Deficiencyparties agree to use the following procedure prior to either party pursuing other available remedies: (a) A meeting shall be held promptly between the parties, Buyer shall give written notice attended by individuals with decision-making authority regarding the dispute, to the Shareholder attempt in good faith to negotiate a resolution of the nature and amount dispute. (b) If, within 30 calendar days after such meeting, the parties have not succeeded in negotiating the resolution of the Deficiency asserted. If dispute, they agree to submit the Shareholder, within a period of fifteen (15) days after the giving of such notice by Buyer, shall not give written notice dispute to Buyer announcing its intention to contest such assertion of Buyer (such notice by the Shareholder being hereinafter called the "Contest Notice"), such assertion of Buyer 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 Buyer within said 15-day period, then the contested assertion of a Deficiency shall be settled by arbitration to be held in San Francisco, California mediation in accordance with the commercial arbitration rules Mediation Rules of the American Arbitration Association then obtaining. The determination Association, with the mediator to be selected by, and the mediation to be supervised by, the respective counsel of the arbitrator(s) shall be delivered in writing to Shareholder and Buyer and shall be final, binding and conclusive upon all each of the parties hereto, and to bear equally the amount costs of the Deficiencymediation. (c) The parties agree to participate in good faith in the mediation and negotiations related thereto for a period of 30 calendar days. If the dispute is not resolved by the mediation, the parties may agree to submit the matter to binding arbitration or a private adjudicator and, if anythey fail to so agree, determined after giving the other party 10 calendar days' written notice of intent to exist by the arbitrator(s) shall be deemed establishedcommence litigation, either party may commence litigation in an appropriate court or pursue any other available remedy. 11.3.3 7.3.3 Buyer and the Shareholder Mansfields may agree in writing, at any time, as to the existence and amount of a Deficiency, Deficiency and, upon the execution of such agreement, such Deficiency shall be deemed established.

Procedures for Establishment of Deficiencies. 11.3.1 (i) In the event that any claim shall be asserted by any party against Buyer one or Company more of the Indemnitees which, if sustained, would result in a Deficiency, Buyerthe applicable Indemnitees, within a reasonable time after learning of such claim, shall notify Shareholder the Indemnitors of such claim, and shall extend to Shareholder the Indemnitors a reasonable opportunity to defend against such claim, at the Shareholder's Indemnitors' sole expense and through legal counsel satisfactory acceptable to Buyer, such satisfaction not to be withheld unreasonablythe applicable Indemnitees, provided that the Shareholder proceeds Indemnitors proceed in good faith, expeditiously and diligently. No effort to recover the amount of the Deficiency related to such claim determination shall be made by Buyer pursuant to Section 11.3.2 subparagraph (ii) below while such defense is still being made until the earlier of (aA) the resolution of said claim by the Shareholder Indemnitors with the claimant, or (bB) the termination of the defense by the Shareholder Indemnitors against such claim or the failure of the Shareholder Indemnitors to prosecute such defense in good faith in an expeditious and diligent manner. Buyer The applicable Indemnitees shall be entitled to rely upon the opinion of its counsel as to the occurrence of either of said events. Buyer The applicable Indemnitees shall, at its their option and expense, have the right to participate in any defense undertaken by the Shareholder Indemnitors with legal counsel of its their own selection. No settlement or compromise of any claim which may result in a Deficiency may be made by the Shareholder Indemnitors without the prior written consent of Buyer the applicable Indemnitees unless (y) prior to such settlement or compromise the Shareholder acknowledges Indemnitors acknowledge in writing its their obligation to pay in full the amount of the settlement or compromise and all associated expenses and Buyer is (z) the applicable Indemnitees are furnished with security reasonably satisfactory to Buyer the applicable Indemnitees that the Shareholder Indemnitors will in fact pay such amount and expenses. 11.3.2 (ii) In the event that Buyer asserts the applicable Indemnitees assert the existence of any Deficiency, Buyer the applicable Indemnitees shall give written notice to the Shareholder Indemnitors of the nature and amount of the Deficiency asserted. If the ShareholderIndemnitors, within a period of fifteen (15) days after the giving of such notice by Buyerthe applicable Indemnitees' notice, shall not give written notice to Buyer the applicable Indemnitees announcing its intention their intent to contest such assertion of Buyer (such notice by the Shareholder Indemnitors being hereinafter called the "Contest Noticecontest notice"), such assertion of Buyer the applicable 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 Buyer the applicable Indemnitees within said 15fifteen-day period, then the contested assertion of a Deficiency shall be settled by arbitration to be held in San FranciscoPhiladelphia, California Pennsylvania in accordance with the commercial arbitration rules of the American Arbitration Association then obtaining. The costs of the arbitrators and the arbitration shall be borne 50% by the Indemnitors and 50% by the applicable Indemnitees. The determination of the arbitrator(s) shall be delivered in writing to Shareholder the Indemnitors and Buyer the applicable Indemnitees and shall be final, binding and conclusive upon all of the parties hereto, and the amount of the Deficiency, if any, determined to exist by the arbitrator(s) exist, shall be deemed established. 11.3.3 Buyer (iii) The applicable Indemnitees and the Shareholder 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. 11.3.1 10.3.1. In the event that any claim shall be asserted against Buyer or Company which, if sustained, would result in a Deficiency, Buyerthe party asserting same shall, within a reasonable time after learning of such claim, shall notify Shareholder the other party of such claim, and shall extend to Shareholder the other party a reasonable opportunity to defend against such claim, at the Shareholder's other party’s sole expense and through legal counsel satisfactory to Buyerboth parties, such satisfaction not to be withheld unreasonably, provided that the Shareholder proceeds other party shall proceed in good faith, expeditiously and diligently. No effort to recover the amount of the Deficiency related to such claim shall be made by Buyer pursuant to Section 11.3.2 either while such defense is still being made until the earlier of (a) the resolution of said claim by the Shareholder Company with the claimant, or (b) the termination of the defense by the Shareholder against such claim or the failure of the Shareholder to prosecute such defense in good faith in an expeditious and diligent manner. Buyer shall be entitled to rely upon the opinion of its counsel as to the occurrence of either of said events. Buyer Each party shall, at its option and expense, have the right to participate in any defense undertaken by the Shareholder other party with legal counsel of its own selection. No settlement or compromise of any claim which may result in a Deficiency may be made by the Shareholder without the prior written consent of Buyer the other party unless prior to such settlement or compromise the Shareholder that party acknowledges in writing its obligation to pay in full the amount of the settlement or compromise and all associated expenses and Buyer any party affected thereby is furnished with security reasonably satisfactory to Buyer that the Shareholder party agreeing to the settlement or compromises will in fact pay such amount and expensesexpenses related top such settlement or compromise. 11.3.2 10.3.2. In the event that Buyer either asserts the existence of any Deficiency, Buyer that party shall give written notice (the “Deficiency Note”) to the Shareholder other party of the nature and amount of the Deficiency asserted. If the Shareholderparty receiving the notice, within a period of fifteen thirty (1530) calendar days after the giving of such notice by Buyernotice, shall not give written notice to Buyer the other party announcing its such party’s intention to contest such assertion of Buyer (such notice by the Shareholder being hereinafter called the "“Contest Notice"”), such assertion of Buyer shall be deemed accepted by the receiving party and the amount of the Deficiency shall be deemed established. In the event, however, that a Contest Notice is given to Buyer the party sending the Deficiency Note within said 15-day thirty (30)-day period, then the contested assertion of a Deficiency shall be settled by arbitration to be held in San Francisco, California Los Angeles County in accordance with the commercial arbitration rules of the American Arbitration Association then obtaining. The determination of the arbitrator(s) shall be delivered in writing to Shareholder Company and Buyer and shall be final, binding and conclusive upon all of the parties hereto, and the amount of the Deficiency, if any, determined to exist by the arbitrator(s) shall be deemed establishedestablished upon entry of the arbitrator(s) award in a court of competent jurisdiction. 11.3.3 10.3.3. Buyer and the Shareholder Company 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.