commenced or threatened, or of any claim whatsoever based upon any of
(i) above; provided that (subject to Section 9(d) below) any such settlement is
effected with the written consent of the Company; and
(iii)
against any and all expense whatsoever, as incurred (including the fees
and disbursements of counsel chosen by the Company), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any of (i) above, to the extent
that any such expense is not paid under (i) or (ii) above,
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by
CF&Co expressly for use in the Registration Statement (or any amendment
thereto), or in any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto).
27
The indemnity agreement set forth in this Section 10(a) shall be in addition to
any liabilities that the Company may otherwise have.
(B) INDEMNIFICATION BY CF&CO. CF&CO AGREES TO INDEMNIFY AND HOLD HARMLESS THE
COMPANY, ITS DIRECTORS, EACH OF ITS OFFICERS WHO SIGNED THE REGISTRATION
STATEMENT AND THE OPERATING PARTNERSHIP AND EACH PERSON, IF ANY, WHO CONTROLS
THE COMPANY AND THE OPERATING PARTNERSHIP WITHIN THE MEANING OF SECTION 15 OF
THE SECURITIES ACT OR SECTION 20 OF THE EXCHANGE ACT AGAINST ANY AND ALL LOSS,
LIABILITY, CLAIM, DAMAGE AND EXPENSE DESCRIBED IN THE INDEMNITY CONTAINED IN
SUBSECTION (A) OF THIS SECTION 10, AS INCURRED, BUT ONLY WITH RESPECT TO UNTRUE
STATEMENTS OR OMISSIONS, OR ALLEGED UNTRUE STATEMENTS OR OMISSIONS, MADE IN THE
REGISTRATION STATEMENT (OR ANY AMENDMENT THERETO), OR THE PROSPECTUS (OR ANY
AMENDMENT OR SUPPLEMENT THERETO) IN RELIANCE UPON AND IN CONFORMITY WITH WRITTEN
INFORMATION FURNISHED TO THE COMPANY BY CF&CO EXPRESSLY FOR USE IN THE
REGISTRATION STATEMENT (OR ANY AMENDMENT THERETO), WHICH INFORMATION IS
DESCRIBED IN SECTION 7(A)(2) HEREOF OR THE PROSPECTUS (OR ANY AMENDMENT OR
SUPPLEMENT THERETO). THE INDEMNITY AGREEMENT SET FORTH IN THIS
SECTION 9(B) SHALL BE IN ADDITION TO ANY LIABILITIES THAT CF&CO MAY OTHERWISE
HAVE.
(C) ACTIONS AGAINST PARTIES; NOTIFICATION. PROMPTLY AFTER RECEIPT BY AN
INDEMNIFIED PARTY UNDER SUBSECTION (A) OR (B) ABOVE OF NOTICE OF THE
COMMENCEMENT OF ANY ACTION, SUCH INDEMNIFIED PARTY SHALL, IF A CLAIM IN RESPECT
THEREOF IS TO BE MADE AGAINST AN INDEMNIFYING PARTY UNDER SUCH SUBSECTION,
NOTIFY THE INDEMNIFYING PARTY IN WRITING OF THE COMMENCEMENT THEREOF; BUT THE
OMISSION SO TO NOTIFY SUCH INDEMNIFYING PARTY SHALL NOT RELIEVE THE INDEMNIFYING
PARTY FROM ANY LIABILITY WHICH IT MAY HAVE TO ANY INDEMNIFIED PARTY UNDER SUCH
SUBSECTION EXCEPT TO THE EXTENT IT HAS BEEN MATERIALLY PREJUDICED BY SUCH
FAILURE. IN CASE ANY SUCH ACTION SHALL BE BROUGHT AGAINST ANY INDEMNIFIED PARTY
AND IT SHALL NOTIFY THE INDEMNIFYING PARTY OF THE