FORTH THEREIN
SHALL HAVE BEEN SATISFIED.
11.02
INDEMNIFICATION.
(A)
EACH PARTY (EACH, A "INDEMNIFYING PARTY"), AS A MATERIAL
INDUCEMENT TO THE OTHER PARTY TO ENTER INTO THIS AGREEMENT, SHALL DEFEND,
INDEMNIFY, AND HOLD HARMLESS THE OTHER PARTY, SUCH OTHER PARTY'S SUCCESSORS AND
ASSIGNS, AND ALL OF SUCH OTHER PARTY'S OFFICERS, DIRECTORS, LENDERS,
SHAREHOLDERS, BENEFICIAL OWNERS, TRUSTEES, PARTNERS, MEMBERS, AFFILIATES, AGENTS
AND EMPLOYEES (EACH, AN "INDEMNITEE", COLLECTIVELY, THE "INDEMNITEES") FROM AND
AGAINST ANY AND ALL DAMAGES, CLAIMS, LOSSES, JUDGMENTS, AWARDS, PENALTIES, FINES
AND FORFEITURES (EACH, AN "ACTION"), TOGETHER WITH REASONABLE ATTORNEYS' FEES
AND RELATED LITIGATION OR ARBITRATION COSTS AND EXPENSES OF SUCH INDEMNITEES, OF
WHATEVER KIND OR NATURE, WITHOUT LIMITATIONS BEING ASSERTED AGAINST ANY OF THE
INDEMNITEES (COLLECTIVELY, "DAMAGES"), WHICH IN ANY WAY ARISE OR RESULT FROM A
BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT OF THE
INDEMNIFYING PARTY UNDER THIS AGREEMENT.
(B)
NO INDEMNITY PURSUANT TO THIS AGREEMENT SHALL BE PAID BY THE
INDEMNIFYING PARTY:
(I)
ON ACCOUNT OF THE INDEMNITEE'S CONDUCT THAT IS ESTABLISHED IN A
FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION AS HAVING
BEEN KNOWINGLY FRAUDULENT, DELIBERATELY DISHONEST, RECKLESS, GROSSLY NEGLIGENT
OR CONSTITUTING WILLFUL MISCONDUCT;
(II)
ON ACCOUNT OF THE INDEMNITEE'S CONDUCT THAT IS ESTABLISHED IN A
FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION AS HAVING
CONSTITUTED A BREACH OF THE INDEMNITEE'S DUTY OF LOYALTY TO THE INDEMNIFYING
PARTY OR AS HAVING RESULTED IN ANY PERSONAL PROFIT OR ADVANTAGE TO THE
INDEMNITEE TO WHICH THE INDEMNITEE WAS NOT LEGALLY ENTITLED;
(III)
FOR WHICH PAYMENT IS ACTUALLY MADE TO THE INDEMNITEE UNDER A
VALID AND COLLECTIBLE INSURANCE POLICY OR UNDER ANOTHER VALID AND ENFORCEABLE
INDEMNITY CLAUSE OR AGREEMENT, EXCEPT IN RESPECT OF ANY DEFICIT IN PAYMENT
ACTUALLY RECEIVED UNDER ANY SUCH POLICY OF INSURANCE, INDEMNITY CLAUSE OR
AGREEMENT; OR
(IV)
IF INDEMNIFICATION IS UNLAWFUL OR HAS BEEN DETERMINED BY ANY
REGULATORY OR ADMINISTRATIVE BODY HAVING JURISDICTION OVER THE INDEMNIFYING
PARTY TO BE AGAINST PUBLIC POLICY.
(C)
AS A CONDITION PRECEDENT TO THE INDEMNITEE'S RIGHTS OF
INDEMNIFICATION UNDER THIS AGREEMENT, THE INDEMNITEE SHALL GIVE THE INDEMNIFYING
PARTY WRITTEN NOTICE AS SOON AS REASONABLY PRACTICABLE AFTER BECOMING AWARE OF
ANY CLAIM MADE AGAINST THE INDEMNITEE FOR WHICH INDEMNIFICATION WILL OR COULD BE
SOUGHT UNDER THIS AGREEMENT.
IN ADDITION, THE INDEMNITEE SHALL GIVE THE
INDEMNIFYING PARTY SUCH INFORMATION AND COOPERATION AS THE INDEMNIFYING PARTY
MAY
40
REASONABLY REQUEST TO ENABLE THE INDEMNIFYING PARTY TO PERFORM ITS OBLIGATIONS
HEREUNDER.
FAILURE BY THE INDEMNITEE TO GIVE SUCH NOTICE SHALL NOT DEPRIVE THE
INDEMNITEE OF A RIGHT TO INDEMNIFICATION HEREUNDER, PROVIDED THAT THE
INDEMNIFYING PARTY HAS ACTUAL KNOWLEDGE OF THE CLAIM AND/OR IS NOT ADVERSELY
AFFECTED IN ITS ABILITY TO DEFEND THE CLAIM AS A RESULT OF ANY SUCH FAILURE.
(D)
WITH RESPECT TO THE COMMENCEMENT OF ANY ACTION OF WHICH THE
INDEMNITEE NOTIFIES THE INDEMNIFYING PARTY PURSUANT TO CLAUSE (C) ABOVE:
(I)
THE INDEMNIFYING PARTY WILL BE ENTITLED TO PARTICIPATE THEREIN AT
ITS OWN EXPENSE;
(II)
EXCEPT AS OTHERWISE PROVIDED BELOW, THE INDEMNIFYING PARTY MAY,
AT ITS