STATEMENT.
9.1.5
INDEMNIFICATION PROCEDURE.
PROMPTLY AFTER RECEIPT BY
AN INDEMNIFIED PARTY UNDER SECTION 9.1.3 OR 9.1.4 OF NOTICE OF THE COMMENCEMENT
OF ANY ACTION FOR WHICH A CLAIM FOR INDEMNIFICATION IS TO BE MADE AGAINST
BORROWER, SUCH INDEMNIFIED PARTY SHALL NOTIFY BORROWER IN WRITING OF SUCH
COMMENCEMENT, BUT THE OMISSION TO SO NOTIFY BORROWER WILL NOT RELIEVE BORROWER
FROM ANY LIABILITY THAT THEY MAY HAVE TO ANY INDEMNIFIED PARTY HEREUNDER EXCEPT
TO THE EXTENT THAT FAILURE TO NOTIFY CAUSES PREJUDICE TO BORROWER.
IF ANY
ACTION IS BROUGHT AGAINST ANY INDEMNIFIED PARTY, AND IT NOTIFIES BORROWER OF THE
COMMENCEMENT THEREOF, BORROWER WILL BE ENTITLED, JOINTLY WITH ANY OTHER
INDEMNIFYING PARTY, TO PARTICIPATE THEREIN AND, TO THE EXTENT THAT IT (OR
THEY) MAY ELECT BY WRITTEN NOTICE DELIVERED TO THE INDEMNIFIED PARTY PROMPTLY
AFTER RECEIVING THE AFORESAID NOTICE OF COMMENCEMENT, TO ASSUME THE DEFENSE
THEREOF WITH COUNSEL SATISFACTORY TO SUCH INDEMNIFIED PARTY IN ITS DISCRETION.
AFTER NOTICE FROM BORROWER TO SUCH INDEMNIFIED PARTY UNDER THIS SECTION 9.1.5,
BORROWER SHALL NOT BE RESPONSIBLE FOR ANY LEGAL OR OTHER EXPENSES SUBSEQUENTLY
INCURRED BY SUCH INDEMNIFIED PARTY IN CONNECTION WITH THE DEFENSE THEREOF OTHER
THAN REASONABLE COSTS OF INVESTIGATION; PROVIDED, HOWEVER, IF THE DEFENDANTS IN
ANY SUCH ACTION INCLUDE BOTH BORROWER AND AN INDEMNIFIED PARTY, AND ANY
INDEMNIFIED PARTY SHALL HAVE REASONABLY CONCLUDED THAT THERE ARE ANY LEGAL
DEFENSES AVAILABLE TO IT AND/OR OTHER INDEMNIFIED PARTIES THAT ARE DIFFERENT
FROM OR ADDITIONAL TO THOSE AVAILABLE TO BORROWER, THEN THE INDEMNIFIED PARTY OR
PARTIES SHALL HAVE THE RIGHT TO SELECT SEPARATE COUNSEL TO ASSERT SUCH LEGAL
DEFENSES AND TO OTHERWISE PARTICIPATE IN THE DEFENSE OF SUCH ACTION ON BEHALF OF
SUCH INDEMNIFIED PARTY OR PARTIES.
BORROWER SHALL NOT BE LIABLE FOR THE
EXPENSES OF MORE THAN ONE SEPARATE COUNSEL UNLESS THERE ARE LEGAL DEFENSES
AVAILABLE TO IT THAT ARE DIFFERENT FROM OR ADDITIONAL TO THOSE AVAILABLE TO
ANOTHER INDEMNIFIED PARTY.
9.1.6
CONTRIBUTION.
IN ORDER TO PROVIDE FOR JUST AND
EQUITABLE CONTRIBUTION IN CIRCUMSTANCES IN WHICH THE INDEMNITY AGREEMENT
PROVIDED FOR IN SECTION 9.1.3 OR 9.1.4 IS FOR ANY REASON HELD TO BE
UNENFORCEABLE BY AN INDEMNIFIED PARTY IN RESPECT OF ANY INDEMNIFIED LIABILITIES
(OR ACTION IN RESPECT THEREOF) REFERRED TO THEREIN WHICH WOULD OTHERWISE BE
INDEMNIFIABLE UNDER SECTION 9.1.3 OR 9.1.4, BORROWER SHALL CONTRIBUTE TO THE
AMOUNT PAID OR PAYABLE BY THE
71
INDEMNIFIED PARTY AS A RESULT OF SUCH INDEMNIFIED LIABILITIES (OR ACTION IN
RESPECT THEREOF); PROVIDED, HOWEVER, THAT NO PERSON GUILTY OF FRAUDULENT
MISREPRESENTATION (WITHIN THE MEANING OF SECTION 11(F) OF THE SECURITIES ACT)
SHALL BE ENTITLED TO CONTRIBUTION FROM ANY PERSON NOT GUILTY OF SUCH FRAUDULENT
MISREPRESENTATION.
IN DETERMINING THE AMOUNT OF CONTRIBUTION TO WHICH THE
RESPECTIVE PARTIES ARE ENTITLED, THE FOLLOWING FACTORS SHALL BE CONSIDERED:
(I) THE CITIGROUP GROUP'S AND BORROWER'S RELATIVE KNOWLEDGE AND ACCESS TO
INFORMATION CONCERNING THE MATTER WITH RESPECT TO WHICH THE CLAIM WAS ASSERTED;
(II) THE OPPORTUNITY TO CORRECT AND PREVENT ANY STATEMENT OR OMISSION; AND
(III) ANY OTHER EQUITABLE CONSIDERATIONS APPROPRIATE IN THE CIRCUMSTANCES.
LENDER AND