THEREAFTER ARISING CONCERNING THE RIGHTS OF THE INDEMNITEE TO INDEMNITY PAYMENTS
AND EXPENSE ADVANCES UNDER THIS AGREEMENT, THE PARTNERSHIP AGREEMENT AND ANY
OTHER AGREEMENTS NOW OR HEREAFTER IN EFFECT RELATING TO PROCEEDINGS FOR
INDEMNIFIABLE EVENTS, THE PARTNERSHIP SHALL SEEK LEGAL ADVICE ONLY FROM SPECIAL
INDEPENDENT COUNSEL SELECTED BY THE INDEMNITEE AND APPROVED BY THE BOARD OF
DIRECTORS (WHICH APPROVAL SHALL NOT BE UNREASONABLY WITHHELD), AND WHO HAS NOT
OTHERWISE PERFORMED SERVICES FOR THE PARTNERSHIP (OTHER THAN IN CONNECTION WITH
SUCH MATTERS) OR THE INDEMNITEE.
WITHOUT LIMITING THE BOARD OF DIRECTOR'S
OBLIGATION NOT TO UNREASONABLY WITHHOLD ITS APPROVAL, IN THE EVENT THAT THE
INDEMNITEE AND THE PARTNERSHIP ARE UNABLE TO AGREE ON THE SELECTION OF THE
SPECIAL INDEPENDENT COUNSEL, SUCH SPECIAL INDEPENDENT COUNSEL SHALL BE SELECTED
BY LOT FROM AMONG AT LEAST FIVE NATIONALLY RECOGNIZED LAW FIRMS EACH IN NEW YORK
CITY, NEW YORK, EACH HAVING NO LESS THAN 250 LAWYERS.
SUCH SELECTION SHALL BE
MADE IN THE PRESENCE OF THE INDEMNITEE (AND THE INDEMNITEE'S LEGAL COUNSEL OR
EITHER OF THEM, AS THE INDEMNITEE MAY ELECT).
SUCH SPECIAL INDEPENDENT COUNSEL,
AMONG OTHER THINGS, SHALL DETERMINE WHETHER AND TO WHAT EXTENT THE INDEMNITEE
WOULD BE PERMITTED TO BE INDEMNIFIED UNDER APPLICABLE LAW AND SHALL RENDER ITS
WRITTEN OPINION TO THE PARTNERSHIP AND THE INDEMNITEE TO SUCH EFFECT.
THE
PARTNERSHIP AGREES TO PAY THE REASONABLE FEES OF THE SPECIAL INDEPENDENT COUNSEL
REFERRED TO ABOVE AND TO FULLY INDEMNIFY SUCH COUNSEL AGAINST ANY AND ALL
EXPENSES (INCLUDING ATTORNEYS' FEES), PROCEEDINGS, LIABILITIES AND DAMAGES
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS ENGAGEMENT PURSUANT TO THIS
AGREEMENT.
6.
SUBROGATION.
IN THE EVENT OF PAYMENT
TO THE INDEMNITEE UNDER THIS AGREEMENT, THE PARTNERSHIP SHALL BE SUBROGATED TO
THE EXTENT OF SUCH PAYMENT TO ALL OF THE RIGHTS OF RECOVERY OF THE INDEMNITEE,
WHO SHALL EXECUTE ALL PAPERS REQUIRED AND SHALL DO EVERYTHING THAT MAY BE
NECESSARY TO SECURE SUCH RIGHTS, INCLUDING THE EXECUTION OF SUCH DOCUMENTS
NECESSARY TO ENABLE THE PARTNERSHIP EFFECTIVELY TO BRING SUIT TO ENFORCE SUCH
RIGHTS.
6
7.
NO PRESUMPTIONS.
FOR PURPOSES OF THIS
AGREEMENT, THE TERMINATION OF ANY PROCEEDING AGAINST THE INDEMNITEE BY JUDGMENT,
ORDER, SETTLEMENT (WHETHER WITH OR WITHOUT COURT APPROVAL) OR CONVICTION, OR
UPON A PLEA OF NOLO CONTENDERE, OR ITS EQUIVALENT, SHALL NOT CREATE A
PRESUMPTION THAT THE INDEMNITEE DID NOT MEET ANY PARTICULAR STANDARD OF CONDUCT
OR HAVE ANY PARTICULAR BELIEF OR THAT A COURT HAS DETERMINED THAT
INDEMNIFICATION IS NOT PERMITTED BY APPLICABLE LAW.
IN ADDITION, NEITHER THE
FAILURE OF THE REVIEWING PARTY TO HAVE MADE A DETERMINATION AS TO WHETHER THE
INDEMNITEE HAS MET ANY PARTICULAR STANDARD OF CONDUCT OR HAD ANY PARTICULAR
BELIEF, NOR AN ACTUAL DETERMINATION BY THE REVIEWING PARTY THAT THE INDEMNITEE
HAS NOT MET SUCH STANDARD OF CONDUCT OR DID NOT HAVE SUCH BELIEF SHALL BE A
DEFENSE TO THE INDEMNITEE'S PROCEEDING FOR INDEMNIFICATION OR CREATE A
PRESUMPTION THAT THE INDEMNITEE HAS NOT MET ANY PARTICULAR STANDARD OF CONDUCT
OR DID NOT HAVE ANY PARTICULAR BELIEF.
8.
NON-EXCLUSIVITY.
THE