BE MADE, OR
IS THREATENED TO BE MADE, A PARTY TO ANY PROCEEDING IN RESPECT OF WHICH
INDEMNITEE INTENDS TO SEEK INDEMNIFICATION HEREUNDER, INDEMNITEE MUST PROMPTLY
NOTIFY THE COMPANY IN WRITING OF THE NATURE AND, TO INDEMNITEE'S KNOWLEDGE,
STATUS OF THAT PROCEEDING.
IF THIS SECTION 4(A) REQUIRES INDEMNITEE TO GIVE
SUCH A NOTICE, BUT INDEMNITEE FAILS TO DO SO, THAT FAILURE WILL NOT RELIEVE THE
COMPANY FROM, OR OTHERWISE AFFECT, THE OBLIGATIONS THE PARTNERSHIP MAY HAVE TO
INDEMNIFY INDEMNITEE UNDER THIS AGREEMENT, UNLESS THE COMPANY CAN ESTABLISH THAT
THE FAILURE HAS RESULTED IN ACTUAL PREJUDICE TO THE COMPANY.
(B)
EXCEPT AS THIS SECTION 4(B) OTHERWISE
PROVIDES BELOW, IN THE CASE OF ANY PROCEEDING IN RESPECT OF WHICH INDEMNITEE
SEEKS INDEMNIFICATION HEREUNDER:
(1)
THE COMPANY AND ANY RELATED ENTERPRISE THAT
ALSO MAY BE OBLIGATED TO INDEMNIFY INDEMNITEE IN RESPECT OF THAT PROCEEDING WILL
BE ENTITLED TO PARTICIPATE AT ITS OWN EXPENSE IN THAT PROCEEDING;
(2)
THE COMPANY OR THAT RELATED ENTERPRISE, OR
EITHER OF THEM, WILL BE ENTITLED TO ASSUME THE DEFENSE OF ALL CLAIMS, OTHER THAN
(A) COMPANY CLAIMS, IF ANY, AND (B) OTHER CLAIMS, IF ANY, AS TO WHICH INDEMNITEE
SHALL REASONABLY REACH THE CONCLUSION CLAUSE (3) OF THE NEXT SENTENCE DESCRIBES,
IN THAT PROCEEDING AGAINST INDEMNITEE BY PROMPT WRITTEN NOTICE OF THAT ELECTION
TO INDEMNITEE; AND
(3)
IF CLAUSE (2) ABOVE ENTITLES THE COMPANY OR
THAT RELATED ENTERPRISE TO ASSUME THE DEFENSE OF ANY OF THOSE CLAIMS AND IT
DELIVERS TO INDEMNITEE NOTICE OF THAT ASSUMPTION UNDER CLAUSE (2), THE COMPANY
WILL NOT BE LIABLE TO INDEMNITEE HEREUNDER FOR ANY FEES OR EXPENSES OF LEGAL
COUNSEL FOR INDEMNITEE WHICH INDEMNITEE INCURS AFTER INDEMNITEE RECEIVES THAT
NOTICE.
Indemnitee will have the right to employ Indemnitee's own legal counsel in that
Proceeding, but, as clause (3) of the preceding sentence provides, will bear the
fees and expenses of that counsel unless:
(1)
THE COMPANY HAS AUTHORIZED INDEMNITEE IN
WRITING TO RETAIN THAT COUNSEL;
(2)
THE COMPANY SHALL NOT WITHIN A REASONABLE
PERIOD OF TIME ACTUALLY HAVE EMPLOYED COUNSEL TO ASSUME THE DEFENSE OF THOSE
CLAIMS; OR
(3)
INDEMNITEE SHALL HAVE (A) REASONABLY
CONCLUDED THAT A CONFLICT OF INTEREST MAY EXIST BETWEEN INDEMNITEE AND THE
COMPANY AS TO THE DEFENSE OF ONE OR MORE OF THOSE CLAIMS AND (B) COMMUNICATED
THAT CONCLUSION TO THE COMPANY IN WRITING.
(C)
THE PARTNERSHIP WILL NOT BE OBLIGATED
HEREUNDER TO, OR TO CAUSE ANOTHER PARTNERSHIP ENTITY TO, INDEMNIFY INDEMNITEE
AGAINST OR HOLD INDEMNITEE HARMLESS FROM AND IN RESPECT OF ANY AMOUNTS PAID, OR
AGREED TO BE PAID, BY INDEMNITEE IN SETTLEMENT OF ANY CLAIM AGAINST INDEMNITEE
WHICH INDEMNITEE EFFECTS WITHOUT THE COMPANY'S PRIOR WRITTEN CONSENT.
THE
COMPANY WILL NOT SETTLE ANY CLAIM AGAINST INDEMNITEE IN ANY MANNER THAT WOULD
IMPOSE ANY PENALTY OR LIMITATION ON INDEMNITEE WITHOUT INDEMNITEE'S PRIOR
WRITTEN CONSENT.
NEITHER THE
4
COMPANY NOR INDEMNITEE WILL UNREASONABLY DELAY OR WITHHOLD CONSENT TO ANY SUCH
SETTLEMENT THE OTHER PARTY PROPOSES TO EFFECT.
SECTION 5.
PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(A)
TO