IN CONNECTION WITH THE LOAN DOCUMENTS, IN THE
EVENT SAFEGUARD IS REQUIRED TO MAKE ANY PAYMENTS ON ACCOUNT OF THE GUARANTY.
8.
TERMINATION.
THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT AND
SHALL TERMINATE ON THE LATER TO OCCUR OF (I) THE DATE THAT THE GUARANTY IS
TERMINATED OR EXPIRES OR (II) THE DATE THAT ALL OBLIGATIONS OF CLARIENT TO
SAFEGUARD, AND ALL OBLIGATIONS OF CLARIENT HEREUNDER HAVE BEEN PAID IN FULL AND
SATISFIED AND; IN EACH CASE, AFTER THE EXPIRATION OF
THE PERIOD DURING WHICH
ANY PAYMENT BY CLARIENT IS OR MAY BE SUBJECT TO RESCISSION, AVOIDANCE OR REFUND
UNDER THE UNITED STATES BANKRUPTCY CODE (OR ANY SIMILAR STATE STATUTE).
9.
INDEMNIFICATION.
(A)
CLARIENT HEREBY AGREES TO INDEMNIFY, PROTECT, DEFEND AND HOLD HARMLESS
SAFEGUARD AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS,
(COLLECTIVELY, THE "INDEMNIFIED PARTIES"), FROM AND AGAINST ANY AND ALL CLAIMS,
DAMAGES, LOSSES, LIABILITIES, COSTS OR EXPENSES OF ANY KIND OR NATURE AND FROM
ANY SUITS, CLAIMS OR DEMANDS, INCLUDING REASONABLE ATTORNEY'S FEES INCURRED IN
INVESTIGATING OR DEFENDING SUCH CLAIM, SUFFERED BY ANY OF THEM AND CAUSED BY,
RELATING TO, ARISING OUT OF,
5
RESULTING FROM, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (UNLESS DETERMINED BY A FINAL JUDGMENT OF A COURT OF
COMPETENT JURISDICTION TO HAVE BEEN CAUSED SOLELY BY THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE INDEMNIFIED PARTIES) INCLUDING WITHOUT LIMITATION:
(I)
BY REASON OF ANY BREACH OF ANY REPRESENTATION OR WARRANTY OF
CLARIENT IN THIS AGREEMENT;
(II)
BY REASON OF, IN CONNECTION WITH, OR AS A CONSEQUENCE OF ANY
DEFAULT BY CLARIENT, IN THE PERFORMANCE OR OBSERVANCE OF ANY TERM, CONDITION,
COVENANT, OR UNDERTAKING CONTAINED IN THIS AGREEMENT OR ANY OTHER DOCUMENT TO BE
OBSERVED OR PERFORMED BY CLARIENT;
(III)
BY REASON OF OR IN CONNECTION WITH ANY LITIGATION OR OTHER
PROCEEDING IN ANY WAY RESTRAINING, ENJOINING, QUESTIONING OR AFFECTING
PERFORMANCE OR OBLIGATION HEREUNDER; AND
(IV)
BY REASON OF OR IN CONNECTION WITH ITS OBLIGATIONS UNDER THE LOAN
DOCUMENTS AND ITS PAYMENT AND REIMBURSEMENT OBLIGATIONS CONTEMPLATED BY SECTION
1 HEREOF.
(B)
IN CASE ANY ACTION SHALL BE BROUGHT AGAINST SAFEGUARD OR ANY OTHER
INDEMNIFIED PARTY IN RESPECT TO WHICH INDEMNITY MAY BE SOUGHT AGAINST CLARIENT,
SAFEGUARD OR SUCH OTHER INDEMNIFIED PARTY SHALL PROMPTLY NOTIFY CLARIENT AND
CLARIENT SHALL ASSUME THE DEFENSE THEREOF, INCLUDING THE EMPLOYMENT OF COUNSEL
SELECTED BY CLARIENT
AND SATISFACTORY TO SAFEGUARD, THE PAYMENT OF ALL COSTS
AND EXPENSES AND THE RIGHT TO NEGOTIATE AND CONSENT TO SETTLEMENT.
THE FAILURE
OF SAFEGUARD TO SO NOTIFY CLARIENT SHALL NOT RELIEVE CLARIENT OF ANY LIABILITY
IT MAY HAVE UNDER THE FOREGOING INDEMNIFICATION PROVISIONS OR FROM ANY LIABILITY
WHICH IT MAY OTHERWISE HAVE TO SAFEGUARD OR ANY OF THE OTHER INDEMNIFIED PARTIES
EXCEPT TO THE EXTENT CLARIENT IS MATERIALLY PREJUDICED THEREBY.
SAFEGUARD SHALL
HAVE THE RIGHT, AT ITS SOLE OPTION, TO EMPLOY SEPARATE COUNSEL IN ANY SUCH
ACTION AND TO PARTICIPATE IN THE DEFENSE THEREOF.
CLARIENT AND RETAIN
ITS OWN
COUNSEL, BUT THE FEES AND EXPENSES