A CLAIM IN RESPECT THEREOF IS TO BE MADE AGAINST
BORROWERS UNDER THIS SECTION 9.2, NOTIFY BORROWERS IN WRITING OF THE
COMMENCEMENT THEREOF, BUT THE OMISSION TO SO NOTIFY BORROWERS WILL NOT RELIEVE
ANY BORROWER FROM ANY LIABILITY WHICH ANY BORROWER MAY HAVE TO ANY INDEMNIFIED
PERSON HEREUNDER EXCEPT TO THE EXTENT THAT SUCH FAILURE TO NOTIFY CAUSES
MATERIAL PREJUDICE TO ANY BORROWER.
IN THE EVENT THAT ANY ACTION IS BROUGHT
AGAINST ANY INDEMNIFIED PERSON, AND IT NOTIFIES BORROWERS OF THE COMMENCEMENT
THEREOF, BORROWERS WILL BE ENTITLED TO PARTICIPATE THEREIN AND, TO THE EXTENT
THAT THEY MAY ELECT BY WRITTEN NOTICE DELIVERED TO SUCH INDEMNIFIED PERSON
PROMPTLY AFTER RECEIVING THE AFORESAID NOTICE FROM SUCH INDEMNIFIED PERSON, TO
ASSUME THE DEFENSE THEREOF WITH COUNSEL REASONABLY SATISFACTORY TO SUCH
INDEMNIFIED PERSON.
AFTER NOTICE FROM BORROWERS TO SUCH INDEMNIFIED PERSON
UNDER THIS SECTION 9.2, SUCH INDEMNIFIED PERSON SHALL PAY FOR ANY LEGAL OR OTHER
EXPENSES SUBSEQUENTLY INCURRED BY SUCH INDEMNIFIED PERSON IN CONNECTION WITH THE
DEFENSE THEREOF OTHER THAN REASONABLE COSTS OF INVESTIGATION; PROVIDED, HOWEVER,
IF THE DEFENDANTS
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IN ANY SUCH ACTION INCLUDE BOTH THE INDEMNIFIED PERSON AND ANY BORROWER AND THE
INDEMNIFIED PERSON SHALL HAVE REASONABLY CONCLUDED THAT THERE ARE ANY LEGAL
DEFENSES AVAILABLE TO IT AND/OR OTHER INDEMNIFIED PERSONS THAT ARE DIFFERENT
FROM OR ADDITIONAL TO THOSE AVAILABLE TO BORROWERS, THE INDEMNIFIED PERSON(S)
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 PERSON(S) AT THE COST OF BORROWERS.
BORROWERS SHALL NOT BE LIABLE
FOR THE EXPENSES OF MORE THAN ONE SEPARATE COUNSEL UNLESS ANY INDEMNIFIED PERSON
SHALL HAVE REASONABLY CONCLUDED THAT THERE MAY BE LEGAL DEFENSES AVAILABLE TO IT
THAT ARE DIFFERENT FROM OR ADDITIONAL TO THOSE AVAILABLE TO ANOTHER INDEMNIFIED
PERSON.
(E)
WITHOUT THE PRIOR CONSENT OF CREDIT SUISSE
(WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD), NO BORROWER SHALL SETTLE OR
COMPROMISE OR CONSENT TO THE ENTRY OF ANY JUDGMENT IN ANY PENDING OR THREATENED
CLAIM, ACTION, SUIT OR PROCEEDING IN RESPECT OF WHICH INDEMNIFICATION MAY BE
SOUGHT HEREUNDER (WHETHER OR NOT ANY INDEMNIFIED PERSON IS AN ACTUAL OR
POTENTIAL PARTY TO SUCH CLAIM, ACTION, SUIT OR PROCEEDING) UNLESS BORROWERS
SHALL HAVE GIVEN CREDIT SUISSE REASONABLE PRIOR NOTICE THEREOF AND SHALL HAVE
OBTAINED AN UNCONDITIONAL RELEASE OF EACH INDEMNIFIED PERSON HEREUNDER FROM ALL
LIABILITY ARISING OUT OF SUCH CLAIM, ACTION, SUIT OR PROCEEDING.
AS LONG AS
BORROWERS HAVE COMPLIED WITH THEIR OBLIGATIONS TO DEFEND AND INDEMNIFY
HEREUNDER, BORROWERS SHALL NOT BE LIABLE FOR ANY SETTLEMENT MADE BY ANY
INDEMNIFIED PERSON WITHOUT THE CONSENT OF BORROWERS (WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD).
(F)
BORROWERS AGREE THAT IF ANY
INDEMNIFICATION OR REIMBURSEMENT SOUGHT PURSUANT TO THIS SECTION 9.2 IS FINALLY
JUDICIALLY DETERMINED TO BE UNAVAILABLE FOR ANY REASON OR IS INSUFFICIENT TO
HOLD ANY INDEMNIFIED PERSON HARMLESS (WITH RESPECT ONLY TO THE LIABILITIES THAT
ARE THE SUBJECT OF THIS SECTION 9.2), THEN BORROWERS, ON THE ONE HAND, AND SUCH
INDEMNIFIED