NOTIFY CAUSES PREJUDICE TO THE INDEMNIFYING PARTY. IN THE EVENT THAT
ANY ACTION IS BROUGHT AGAINST ANY INDEMNIFIED PARTY, AND IT NOTIFIES THE
INDEMNIFYING PARTY OF THE COMMENCEMENT THEREOF, THE INDEMNIFYING PARTY 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 FROM SUCH
INDEMNIFIED PARTY, TO ASSUME THE DEFENSE THEREOF WITH COUNSEL REASONABLY
SATISFACTORY TO SUCH INDEMNIFIED PARTY. AFTER NOTICE FROM THE INDEMNIFYING PARTY
TO SUCH INDEMNIFIED PARTY UNDER THIS SECTION 9.2, SUCH
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INDEMNIFIED PARTY SHALL PAY 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 THE INDEMNIFIED PARTY AND THE INDEMNIFYING PARTY
AND THE 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 THE INDEMNIFYING PARTY, 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 AT THE COST OF THE INDEMNIFYING
PARTY. THE INDEMNIFYING PARTY SHALL NOT BE LIABLE FOR THE EXPENSES OF MORE THAN
ONE SEPARATE COUNSEL UNLESS AN INDEMNIFIED PARTY 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 PARTY.
(E)
IN ORDER TO PROVIDE FOR JUST AND EQUITABLE CONTRIBUTION IN
CIRCUMSTANCES IN WHICH THE INDEMNITY AGREEMENT PROVIDED FOR IN SECTION 9.2(B) OR
(C) IS FOR ANY REASON HELD TO BE UNENFORCEABLE AS TO AN INDEMNIFIED PARTY IN
RESPECT OF ANY LOSSES, CLAIMS, DAMAGES OR LIABILITIES (OR ACTION IN RESPECT
THEREOF) REFERRED TO THEREIN WHICH WOULD OTHERWISE BE INDEMNIFIABLE UNDER
SECTION 9.2(B) OR (C), THE INDEMNIFYING PARTY SHALL CONTRIBUTE TO THE AMOUNT
PAID OR PAYABLE BY THE INDEMNIFIED PARTY AS A RESULT OF SUCH LOSSES, CLAIMS,
DAMAGES OR 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 WHO WAS 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) 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 BORROWER HEREBY AGREE THAT IT WOULD NOT BE EQUITABLE IF THE AMOUNT OF
SUCH CONTRIBUTION WERE DETERMINED BY PRO RATA OR PER CAPITA ALLOCATION.
(F)
THE LIABILITIES AND OBLIGATIONS OF BOTH BORROWER AND LENDER UNDER
THIS SECTION 9.2 SHALL SURVIVE THE