OF THE COMMENCEMENT OF ANY ACTION OR PROCEEDING (INCLUDING ANY
GOVERNMENTAL ACTION OR PROCEEDING) INVOLVING AN INDEMNIFIED LIABILITY, SUCH
INDEMNITEE SHALL, IF A CLAIM FOR INDEMNIFICATION IN RESPECT THEREOF IS TO BE
MADE AGAINST ANY INDEMNIFYING PARTY UNDER THIS SECTION 4.4, DELIVER TO THE
INDEMNIFYING PARTY A WRITTEN NOTICE OF THE COMMENCEMENT THEREOF, AND THE
INDEMNIFYING PARTY SHALL HAVE THE RIGHT TO PARTICIPATE IN, AND, TO THE EXTENT
THE INDEMNIFYING PARTY SO DESIRES, JOINTLY WITH ANY OTHER INDEMNIFYING PARTY
SIMILARLY NOTICED, TO ASSUME CONTROL OF THE DEFENSE THEREOF WITH COUNSEL
MUTUALLY SATISFACTORY TO THE INDEMNIFYING PARTY AND THE INDEMNITEE; PROVIDED,
HOWEVER, THAT AN INDEMNITEE SHALL HAVE THE RIGHT TO RETAIN ITS OWN COUNSEL
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WITH THE REASONABLE FEES AND EXPENSES OF NOT MORE THAN ONE COUNSEL FOR SUCH
INDEMNITEE TO BE PAID BY THE INDEMNIFYING PARTY, IF, IN THE REASONABLE OPINION
OF THE INDEMNITEE, THE REPRESENTATION BY SUCH COUNSEL OF THE INDEMNITEE AND THE
INDEMNIFYING PARTY WOULD BE INAPPROPRIATE DUE TO ACTUAL OR POTENTIAL DIFFERING
INTERESTS BETWEEN SUCH INDEMNITEE AND ANY OTHER PARTY REPRESENTED BY SUCH
COUNSEL IN SUCH PROCEEDING.
LEGAL COUNSEL REFERRED TO IN THE IMMEDIATELY
PRECEDING SENTENCE SHALL BE SELECTED BY THE HOLDER.
THE INDEMNITEE SHALL
COOPERATE FULLY WITH THE INDEMNIFYING PARTY IN CONNECTION WITH ANY NEGOTIATION
OR DEFENSE OF ANY SUCH ACTION OR INDEMNIFIED LIABILITIES BY THE INDEMNIFYING
PARTY AND SHALL FURNISH TO THE INDEMNIFYING PARTY ALL INFORMATION REASONABLY
AVAILABLE TO THE INDEMNITEE THAT RELATES TO SUCH ACTION OR INDEMNIFIED
LIABILITIES.
THE INDEMNIFYING PARTY SHALL KEEP THE INDEMNITEE FULLY APPRISED AT
ALL TIMES AS TO THE STATUS OF THE DEFENSE OR ANY SETTLEMENT NEGOTIATIONS WITH
RESPECT THERETO.
NO INDEMNIFYING PARTY SHALL BE LIABLE FOR ANY SETTLEMENT OF
ANY ACTION, CLAIM OR PROCEEDING EFFECTED WITHOUT ITS PRIOR WRITTEN CONSENT,
PROVIDED, HOWEVER, THAT THE INDEMNIFYING PARTY SHALL NOT UNREASONABLY WITHHOLD,
DELAY OR CONDITION ITS CONSENT.
NO INDEMNIFYING PARTY SHALL, WITHOUT THE PRIOR
WRITTEN CONSENT OF THE INDEMNITEE, CONSENT TO ENTRY OF ANY JUDGMENT OR ENTER
INTO ANY SETTLEMENT OR OTHER COMPROMISE WHICH DOES NOT INCLUDE AS AN
UNCONDITIONAL TERM THEREOF THE GIVING BY THE CLAIMANT OR PLAINTIFF TO SUCH
INDEMNITEE OF A RELEASE FROM ALL LIABILITY IN RESPECT TO SUCH INDEMNIFIED
LIABILITIES OR LITIGATION.
FOLLOWING INDEMNIFICATION AS PROVIDED FOR HEREUNDER,
THE INDEMNIFYING PARTY SHALL BE SUBROGATED TO ALL RIGHTS OF THE INDEMNITEE WITH
RESPECT TO ALL THIRD PARTIES, FIRMS OR CORPORATIONS RELATING TO THE MATTER FOR
WHICH INDEMNIFICATION HAS BEEN MADE.
THE FAILURE TO DELIVER WRITTEN NOTICE TO
THE INDEMNIFYING PARTY WITHIN A REASONABLE TIME OF THE COMMENCEMENT OF ANY SUCH
ACTION SHALL NOT RELIEVE SUCH INDEMNIFYING PARTY OF ANY LIABILITY TO THE
INDEMNITEE UNDER THIS SECTION 4.4, EXCEPT TO THE EXTENT THAT THE INDEMNIFYING
PARTY IS PREJUDICED IN ITS ABILITY TO DEFEND SUCH ACTION.
(C)
THE INDEMNIFICATION REQUIRED BY THIS SECTION 4.4 SHALL BE MADE BY
PERIODIC PAYMENTS OF THE AMOUNT THEREOF DURING THE COURSE OF THE INVESTIGATION
OR DEFENSE, AS AND WHEN BILLS ARE RECEIVED OR INDEMNIFIED LIABILITIES ARE
INCURRED.
(D)
THE INDEMNITY AGREEMENTS CONTAINED HEREIN