Common use of Procedures for Establishment of Deficiencies Clause in Contracts

Procedures for Establishment of Deficiencies. (a) In the event that any claim shall be asserted by any third party against 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 Indemnitees, within a reasonable time after learning of such claim, shall notify the 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 a reasonable opportunity to defend against such claim, at the Indemnifying Party's sole expense and through legal counsel acceptable to the Indemnitees, provided that the Indemnifying Party proceeds in good faith, expeditiously and diligently. The Indemnitees shall, at 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 with legal counsel of their own selection. 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 Indemnitees unless: (A) prior to such settlement or compromise the Indemnifying Party acknowledges in writing its obligation to pay in full the amount of the settlement or compromise and all associated expenses; and (B) the Indemnitees are furnished with security reasonably satisfactory to the Indemnitees that the 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 purports to impose any non-monetary obligation upon a party may be entered into without such party's consent.

Procedures for Establishment of Deficiencies. (a1) In the event that any claim shall be asserted by any third party against the Buyer Indemnitees or Seller Indemnitees (in either case, the "Indemnitees"), a Purchaser Indemnitee which, if sustained, would result in a Buyer Deficiency or a Seller Deficiency (in either caseDeficiency, a "Deficiency"), then the IndemniteesPurchaser, within a reasonable time after learning of such claim, shall notify the party required to indemnify the Indemnitees under the terms of Section 5.2(a) or 5.2(b), as applicable (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 acceptable of Indemnitor's choosing who is reasonably satisfactory to the IndemniteesPurchaser, 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 Indemnitees Purchaser shall, at their its option and expense, with respect to claims not solely for money damages, have the right to participate in but not control any defense undertaken by the Indemnifying Party Principal Shareholder Indemnitors with legal counsel of their its own selection. If the Principal Shareholder Indemnitors fail to prosecute such defense in good faith in an expeditious and diligent manner, Purchaser shall have the right to defend and/or settle such claim on behalf of such 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 Indemnitees unless: (A) prior to such settlement or compromise the Indemnifying Party acknowledges in writing its obligation to pay in full the amount of the settlement or compromise and all associated expenses; and (B) the Indemnitees are furnished with security reasonably satisfactory to the Indemnitees that the Indemnifying Party other, which consent 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 purports to impose any non-monetary obligation upon a party may not be entered into without such party's consentunreasonably withheld.

Procedures for Establishment of Deficiencies. (a) In the event that any claim -------------------------------------------- shall be asserted by any third party against the Buyer Indemnitees Buyer, Parent, or Seller Indemnitees (in either case, the "Indemnitees"), Corporation which, if sustained, would result in a Deficiency, Buyer Deficiency or a Seller Deficiency (in either caseParent, a "Deficiency"), then as the Indemniteescase may be, within a reasonable time after learning of such claim, shall notify the party required to indemnify the Indemnitees under the terms of Section 5.2(a) or 5.2(b), as applicable (the "Indemnifying Party") Indemnitor of such claim, and shall extend to the Indemnifying Party Indemnitor a reasonable opportunity to defend against such claim, at the Indemnifying PartyIndemnitor's sole expense and through legal counsel acceptable reasonably satisfactory to Buyer or Parent, as the Indemniteescase may be, and utilizing any insurance coverage which may be available with respect to such claim and/or costs and expenses of the defense thereof; provided that the Indemnifying Party Indemnitor proceeds in good faith, expeditiously and diligently. The Indemnitees Buyer or Parent, as the case may be, shall, at their its 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 Indemnitor with legal counsel of their 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 Indemnifying Party Indemnitor without the prior written consent of Buyer or Parent, as the Indemnitees unless: (A) case may be, unless the proposed settlement is solely a monetary settlement and prior to such settlement or compromise the Indemnifying Party acknowledges Stockholders acknowledge in writing its their obligation to pay in full the amount of the settlement or compromise and all associated expenses; , subject to the limitations set forth in this Paragraph 12, and (B) Buyer or Parent, as the Indemnitees are case may be, is furnished with security a full release from the claimant in form and substance reasonably satisfactory to Buyer or Parent, as the Indemnitees that case may be. In connection with the Indemnifying Party will defense against the claim, Buyer or Parent, as the case may be, shall 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 claim, upon reasonable advance notice to Buyer or Parent, as the case may be, and shall otherwise cooperate in fact pay such amount and expenses. No settlement or compromise of good faith with Stockholders with respect to the defense against the claim, including in connection with compliance with any claim that acknowledges any liability subpoena, request for a violation of lawdocuments, or purports 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 way as to impose any non-monetary obligation upon a party may be entered into without such party's consentavoid material disruption of the normal business operations of Corporation.

Procedures for Establishment of Deficiencies. (a) In the event that any claim shall be asserted by any third party against the Buyer Indemnitees or Seller Indemnitees (in either case, the "Indemnitees"), an Indemnified Party which, if sustained, would result in a Buyer Deficiency or a Seller Deficiency (in either caseDeficiency, a "Deficiency"), then the Indemniteessuch Indemnified Party, within a reasonable time after learning of such claim, shall notify the party required to indemnify the Indemnitees under the terms of Section 5.2(a) or 5.2(b), as applicable (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 PartyIndemnitor's sole expense and through legal counsel acceptable to the IndemniteesIndemnified Party, provided that the Indemnifying Party proceeds Indemnitor proceed in good faith, expeditiously and diligently. No 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, or (ii) the termination of the 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 Indemnitees 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, at their option and expense, with respect to claims not solely for money damagesits option, have the right to participate in any defense undertaken by the Indemnifying Party Indemnitor with legal counsel of their 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 such claim, in either of which events the defense of such claim on behalf of the Indemnified 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 Indemnitees unless: Indemnified party unless (Ai) prior to such settlement or compromise the Indemnifying Party Indemnitor acknowledges in writing its obligation to pay in full the amount of the settlement or compromise and all associated expenses; expenses and (Bii) the Indemnitees are Indemnified Party is furnished with security reasonably satisfactory to the Indemnitees Indemnified Party that the Indemnifying Party Indemnitor 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 purports to impose any non-monetary obligation upon a party may be entered into without such party's consent.

Procedures for Establishment of Deficiencies. (ai) In the event that any claim shall be asserted by any third party against one or more of the Buyer USP Indemnitees or Seller Indemnitees (in either case, the "Indemnitees"), which, if sustained, would result in a Buyer Deficiency or a Seller Deficiency (in either caseDeficiency, a "Deficiency"), then the applicable USP Indemnitees, within a reasonable time after learning of such claim, shall notify the party required to indemnify the Indemnitees under the terms of Section 5.2(a) or 5.2(b), as applicable (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 acceptable to the applicable 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 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 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 Physician Indemnitors with legal counsel of their own selection. 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 applicable USP Indemnitees unless: unless (Ay) prior to such settlement or compromise the Indemnifying Party acknowledges Physician Indemnitors acknowledge in writing its their obligation to pay in full the amount of the settlement or compromise and all associated expenses; expenses and (Bz) the applicable USP Indemnitees are furnished with security reasonably satisfactory to the applicable USP Indemnitees that the Indemnifying Party Physician Indemnitors 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 purports to impose any non-monetary obligation upon a party may be entered into without such party's consent.

Procedures for Establishment of Deficiencies. (ai) In the event that any claim shall be asserted by any third party against the Buyer Indemnitees or Seller Indemnitees (in either case, the "Indemnitees"), Physician Indemnitee which, if sustained, would result in a Buyer Deficiency or a Seller Deficiency (in either caseDeficiency, a "Deficiency"), then the Indemniteesapplicable Physician Indemnitee, within a reasonable time after learning of such claim, shall notify the party required to indemnify the Indemnitees under the terms of Section 5.2(a) or 5.2(b), as applicable (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 PartyUSP Indemnitor's sole expense and through legal counsel acceptable to the Indemniteesapplicable 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 Indemnitees 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 their her 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 USP Indemnitor with legal counsel of their her own selection. 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 Indemnitees unless: Physician Indemnitee unless (Ay) prior to such settlement or compromise the Indemnifying Party USP Indemnitor acknowledges in writing its obligation to pay in full the amount of the settlement or compromise and all associated expenses; expenses and (Bz) the Indemnitees are Physician Indemnitee is furnished with security reasonably satisfactory to the Indemnitees Physician Indemnitee that the Indemnifying Party USP Indemnitor 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 purports to impose any non-monetary obligation upon a party may be entered into without such party's consent.

Procedures for Establishment of Deficiencies. (a) In the event that any claim shall be asserted by any third party against the Buyer Indemnitees or Seller Indemnitees (in either case, the "Indemnitees"), an Indemnified Party which, if sustained, would result in a Buyer Deficiency or a Seller Deficiency (in either caseDeficiency, a "Deficiency"), then the Indemniteessuch Indemnified Party, within a reasonable time after learning of such claim, shall notify the party required to indemnify the Indemnitees under the terms of Section 5.2(a) or 5.2(b), as applicable (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 PartyIndemnitor's sole expense and through legal counsel acceptable to the IndemniteesIndemnified Party, provided that the Indemnifying Party proceeds Indemnitor proceed in good faith, expeditiously and diligently. No 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, or (ii) the termination of the 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 Indemnitees 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, at their option and expense, with respect to claims not solely for money damagesits option, have the right to participate in any defense undertaken by the Indemnifying Party Indemnitor with legal counsel of their 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 such claim, in either of which events the defense of such claim on behalf of the Indemnified 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 Indemnitees unless: Indemnified Party unless (Ai) prior to such settlement or compromise the Indemnifying Party Indemnitor acknowledges in writing its obligation to pay in full the amount of the settlement or compromise and all associated expenses; expenses and (Bii) the Indemnitees are Indemnified Party is furnished with security reasonably satisfactory to the Indemnitees Indemnified Party that the Indemnifying Party Indemnitor 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 purports to impose any non-monetary obligation upon a party may be entered into without such party's consent.

Procedures for Establishment of Deficiencies. (ai) In the event that any claim shall be asserted by any third party against one or more of 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 caseDeficiency, a "Deficiency"), then the applicable Indemnitees, within a reasonable time after learning of such claim, shall notify the party required to indemnify the Indemnitees under the terms of Section 5.2(a) or 5.2(b), as applicable (the "Indemnifying Party") Indemnitors of such claim, and shall extend to the Indemnifying Party Indemnitors a reasonable opportunity to defend against such claim, at the Indemnifying Party's Indemnitors' sole expense and through legal counsel acceptable to the applicable Indemnitees, provided that the Indemnifying Party proceeds 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 Indemnitors with the claimant, or (B) the termination of the defense by the Indemnitors against such claim or the failure of the Indemnitors to prosecute such defense in good faith in an expeditious and diligent manner. The applicable Indemnitees shall be entitled to rely upon the opinion of its counsel as to the occurrence of either of said events. The applicable Indemnitees shall, at 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 Indemnitors with legal counsel of their own selection. No settlement or compromise of any claim which may result in a Deficiency may be made by the Indemnifying Party Indemnitors without the prior written consent of the applicable Indemnitees unless: unless (Ay) prior to such settlement or compromise the Indemnifying Party acknowledges Indemnitors acknowledge in writing its their obligation to pay in full the amount of the settlement or compromise and all associated expenses; expenses and (Bz) the applicable Indemnitees are furnished with security reasonably satisfactory to the applicable Indemnitees that the Indemnifying Party Indemnitors 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 purports to impose any non-monetary obligation upon a party may be entered into without such party's consent.