TO AND WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, FOREST SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE SPINCO
INDEMNITEES FROM AND AGAINST ALL INDEMNIFIABLE LOSSES (INCLUDING INDEMNIFIABLE
LOSSES ARISING FROM THE SPINCO INDEMNITEES' EFFORTS TO COLLECT FROM OTHER
POTENTIALLY RESPONSIBLE PARTIES) IN EXCESS OF $10.0 MILLION IN THE AGGREGATE, AS
ACTUALLY INCURRED BY SPINCO, ARISING IN CONNECTION WITH THE CONDITIONS DESCRIBED
IN CLAUSES (II) AND (IV) OF SECTION 4.10 OF THE SPINCO DISCLOSURE SCHEDULE,
PROVIDED THAT SPINCO SHALL HAVE USED COMMERCIALLY REASONABLE EFFORTS TO COLLECT
FROM OTHER POTENTIALLY RESPONSIBLE PARTIES THEIR SHARE OF COSTS ASSOCIATED WITH
SUCH CONDITIONS, INCLUDING WITHOUT LIMITATION THE PURSUIT OF LITIGATION AGAINST
SUCH POTENTIALLY RESPONSIBLE PARTIES AT FOREST'S REASONABLE REQUEST.
(C)
NOTWITHSTANDING ANYTHING TO THE CONTRARY
SET FORTH HEREIN, INDEMNIFICATION RELATING TO ANY ARRANGEMENTS BETWEEN ANY
MEMBER OF THE FOREST GROUP AND ANY MEMBER OF THE SPINCO GROUP (WHICH
ARRANGEMENTS, IF ENTERED INTO ON OR AFTER THE DATE HEREOF, SHALL HAVE BEEN
EXECUTED SUBJECT TO COMPANY CONSENT) FOR THE PROVISION AFTER THE DISTRIBUTION
DATE OF GOODS AND SERVICES IN THE ORDINARY COURSE SHALL BE GOVERNED BY THE TERMS
OF SUCH ARRANGEMENTS AND NOT BY THIS SECTION OR AS OTHERWISE SET FORTH IN THIS
AGREEMENT AND THE OTHER TRANSACTION AGREEMENTS.
(D)
INDEMNIFICATION FOR MATTERS SUBJECT TO THE
TAX SHARING AGREEMENT IS GOVERNED BY THE TERMS, PROVISIONS AND PROCEDURES OF THE
TAX SHARING AGREEMENT AND NOT BY THIS ARTICLE V.
Section 5.3
Procedures for Indemnification
for Third-Party Claims.
(A)
FOREST SHALL, AND SHALL CAUSE THE OTHER
FOREST INDEMNITEES TO, NOTIFY SPINCO IN WRITING PROMPTLY AFTER LEARNING OF ANY
THIRD-PARTY CLAIM FOR WHICH ANY FOREST INDEMNITEE INTENDS TO SEEK
INDEMNIFICATION FROM SPINCO UNDER THIS AGREEMENT.
SPINCO SHALL, AND SHALL CAUSE
THE OTHER SPINCO INDEMNITEES TO, NOTIFY FOREST IN WRITING PROMPTLY AFTER
LEARNING OF ANY THIRD-PARTY CLAIM FOR WHICH ANY SPINCO INDEMNITEE INTENDS TO
SEEK INDEMNIFICATION FROM FOREST UNDER THIS AGREEMENT.
THE FAILURE OF ANY
INDEMNITEE TO GIVE SUCH NOTICE SHALL NOT RELIEVE ANY INDEMNIFYING PARTY OF ITS
OBLIGATIONS UNDER THIS ARTICLE V EXCEPT TO THE EXTENT THAT SUCH INDEMNIFYING
PARTY IS ACTUALLY PREJUDICED BY SUCH FAILURE TO GIVE NOTICE.
SUCH NOTICE SHALL
DESCRIBE SUCH THIRD-PARTY CLAIM IN REASONABLE DETAIL CONSIDERING THE INFORMATION
PROVIDED TO THE INDEMNITEE AND SHALL INDICATE THE AMOUNT (ESTIMATED IF
NECESSARY) OF THE INDEMNIFIABLE LOSS THAT HAS BEEN CLAIMED AGAINST OR MAY BE
SUSTAINED BY SUCH INDEMNITEE.
(B)
EXCEPT AS OTHERWISE PROVIDED IN
PARAGRAPH (C) OF THIS SECTION 5.3, AN INDEMNIFYING PARTY MAY, BY NOTICE TO THE
INDEMNITEE AND TO FOREST, IF SPINCO IS THE INDEMNIFYING PARTY, OR TO THE
INDEMNITEE AND SPINCO, IF FOREST IS THE INDEMNIFYING PARTY, AT ANY TIME AFTER
RECEIPT BY SUCH INDEMNIFYING PARTY OF SUCH INDEMNITEE'S NOTICE OF A THIRD-PARTY
CLAIM, UNDERTAKE (ITSELF OR THROUGH ANOTHER MEMBER OF THE GROUP OF WHICH THE
INDEMNIFYING PARTY IS A MEMBER) THE DEFENSE OR SETTLEMENT OF SUCH THIRD-PARTY
CLAIM, AT SUCH INDEMNIFYING PARTY'S OWN EXPENSE AND BY COUNSEL REASONABLY
SATISFACTORY TO THE INDEMNITEE.
IF AN INDEMNIFYING PARTY UNDERTAKES THE DEFENSE
OF ANY THIRD-PARTY CLAIM,