LLC INDEMNITEE OR A MORGANS GROUP LLC
INDEMNITEE, AS APPLICABLE (AN "INDEMNITEE"), RECEIVES NOTICE OR OTHERWISE LEARNS
OF THE ASSERTION BY A PERSON (INCLUDING ANY REGULATORY AUTHORITY) WHO IS NOT A
MEMBER OF THE MHG LLC GROUP OR THE MORGANS GROUP LLC GROUP OF ANY CLAIM OR OF
THE COMMENCEMENT BY ANY SUCH PERSON OF ANY ACTION (COLLECTIVELY, A "THIRD PARTY
CLAIM") WITH RESPECT TO WHICH A PARTY (AN "INDEMNIFYING PARTY") MAY BE OBLIGATED
TO PROVIDE INDEMNIFICATION TO SUCH INDEMNITEE PURSUANT TO SECTION 2.2, 2.3 OR
2.4, MHG LLC AND
6
MORGANS GROUP LLC, AS APPLICABLE, WILL ENSURE THAT SUCH INDEMNITEE SHALL GIVE
SUCH INDEMNIFYING PARTY WRITTEN NOTICE THEREOF WITHIN THIRTY (30) DAYS AFTER
BECOMING AWARE OF SUCH THIRD PARTY CLAIM.
ANY SUCH NOTICE SHALL DESCRIBE THE
THIRD PARTY CLAIM IN REASONABLE DETAIL.
NOTWITHSTANDING THE FOREGOING, THE
DELAY OR FAILURE OF ANY INDEMNITEE OR OTHER PERSON TO GIVE NOTICE AS PROVIDED IN
THIS SECTION 2.5(A) SHALL NOT RELIEVE THE RELATED INDEMNIFYING PARTY OF ITS
OBLIGATIONS UNDER THIS ARTICLE II, EXCEPT TO THE EXTENT THAT SUCH INDEMNIFYING
PARTY IS ACTUALLY AND SUBSTANTIALLY PREJUDICED BY SUCH DELAY OR FAILURE TO GIVE
NOTICE; PROVIDED THAT THE FAILURE TO NOTIFY THE INDEMNIFYING PARTY SHALL NOT
RELIEVE IT FROM ANY LIABILITY THAT IT MAY HAVE TO AN INDEMNITEE OTHERWISE THAN
UNDER THIS ARTICLE II.
(B)
DEFENSE OF CLAIMS.
AN INDEMNIFYING PARTY SHALL RETAIN COUNSEL
REASONABLY SATISFACTORY TO THE INDEMNITEE AND SHALL MANAGE THE DEFENSE OF AND
MAY SETTLE OR COMPROMISE ANY THIRD PARTY CLAIM SO LONG AS SUCH SETTLEMENT OR
COMPROMISE CONTAINS A FULL AND UNCONDITIONAL RELEASE OF EACH INDEMNIFIED PARTY
AND DOES NOT INCLUDE ANY STATEMENT AS TO ANY ADMISSION OF FAULT, CULPABILITY OR
FAILURE TO ACT BY OR ON BEHALF OF ANY INDEMNITEE.
WITHIN THIRTY (30) DAYS AFTER
THE RECEIPT OF NOTICE FROM AN INDEMNITEE IN ACCORDANCE WITH SECTION 2.5(A) (OR
SOONER, IF THE NATURE OF SUCH THIRD PARTY CLAIM SO REQUIRES), THE INDEMNIFYING
PARTY SHALL NOTIFY THE INDEMNITEE THAT THE INDEMNIFYING PARTY WILL ASSUME
RESPONSIBILITY FOR MANAGING THE DEFENSE OF SUCH THIRD PARTY CLAIM.
(C)
DEFENSE BY INDEMNITEE.
IF AN INDEMNIFYING PARTY FAILS TO ASSUME
RESPONSIBILITY FOR MANAGING THE DEFENSE OF A THIRD PARTY CLAIM OR TO DILIGENTLY
DEFEND SUCH THIRD PARTY CLAIM, OR FAILS TO NOTIFY AN INDEMNITEE THAT IT WILL
ASSUME RESPONSIBILITY AS PROVIDED IN SECTION 2.5(B), SUCH INDEMNITEE MAY MANAGE
THE DEFENSE OF SUCH THIRD PARTY CLAIM AND MAY SETTLE SUCH THIRD PARTY CLAIM
WITHOUT THE CONSENT OF THE INDEMNIFYING PARTY.
IN ANY PROCEEDING RELATING TO A
THIRD PARTY CLAIM, ANY INDEMNITEE SHALL HAVE THE RIGHT TO RETAIN ITS OWN
COUNSEL, BUT THE FEES AND EXPENSES OF SUCH COUNSEL SHALL BE AT THE EXPENSE OF
SUCH INDEMNITEE UNLESS THE NAMED PARTIES TO ANY SUCH PROCEEDING (INCLUDING ANY
IMPLEADED PARTIES) INCLUDE BOTH THE INDEMNIFYING PARTY AND THE INDEMNITEE AND
REPRESENTATION OF BOTH PARTIES BY THE SAME COUNSEL WOULD BE INAPPROPRIATE DUE TO
ACTUAL OR POTENTIAL DIFFERING INTERESTS BETWEEN THEM.
IT IS UNDERSTOOD THAT THE
INDEMNIFYING PARTY SHALL NOT, IN