ONLY TO THE EXTENT THAT THE COURT IN WHICH SUCH CLAIM WAS BROUGHT SHALL
DETERMINE UPON APPLICATION THAT, DESPITE THE ADJUDICATION OF LIABILITY, BUT IN
VIEW OF ALL THE CIRCUMSTANCES OF THE CASE, SUCH PERSON IS FAIRLY AND REASONABLY
ENTITLED TO INDEMNITY FOR SUCH EXPENSES AS SUCH COURT SHALL DEEM PROPER.
REVIEWING PARTY. NOTWITHSTANDING THE FOREGOING: (I) THE OBLIGATIONS OF THE UNITY
UNDER PARAGRAPH (A) OF THIS SECTION 2 SHALL BE SUBJECT TO THE CONDITION THAT THE
REVIEWING PARTY (AS DESCRIBED IN PARAGRAPH (C) OF SECTION 10 HEREOF) SHALL NOT
HAVE DETERMINED THAT INDEMNITEE WOULD NOT BE PERMITTED TO BE INDEMNIFIED UNDER
APPLICABLE LAW, AND (II) THE OBLIGATION OF UNITY TO MAKE AN ADVANCE PAYMENT OF
EXPENSES TO INDEMNITEE PURSUANT TO PARAGRAPH (A) OF SECTION 3 HEREOF (AN
"EXPENSE ADVANCE") SHALL BE SUBJECT TO THE CONDITION THAT, IF, WHEN AND TO THE
EXTENT THAT THE REVIEWING PARTY DETERMINES THAT INDEMNITEE WOULD NOT BE
PERMITTED TO BE SO INDEMNIFIED UNDER APPLICABLE LAW, UNITY SHALL BE ENTITLED TO
BE REIMBURSED BY INDEMNITEE (WHO HEREBY AGREES TO REIMBURSE UNITY) FOR ALL SUCH
AMOUNTS THERETOFORE PAID; PROVIDED, HOWEVER, THAT IF INDEMNITEE HAS COMMENCED OR
THEREAFTER COMMENCES LEGAL PROCEEDINGS IN A COURT OF COMPETENT JURISDICTION TO
SECURE A DETERMINATION THAT INDEMNITEE SHOULD BE INDEMNIFIED UNDER APPLICABLE
LAW, ANY DETERMINATION MADE BY THE REVIEWING PARTY THAT INDEMNITEE WOULD NOT BE
PERMITTED TO BE INDEMNIFIED UNDER APPLICABLE LAW SHALL NOT BE BINDING AND
INDEMNITEE SHALL NOT BE REQUIRED TO REIMBURSE UNITY FOR ANY EXPENSE ADVANCE
UNTIL A FINAL JUDICIAL DETERMINATION IS MADE WITH RESPECT THERETO (AS TO WHICH
ALL RIGHTS OF APPEAL THEREFROM HAVE BEEN EXHAUSTED OR LAPSED). IF THERE HAS BEEN
NO DETERMINATION BY THE REVIEWING PARTY OR IF THE REVIEWING PARTY DETERMINES
THAT INDEMNITEE SUBSTANTIVELY WOULD NOT BE PERMITTED TO BE INDEMNIFIED IN WHOLE
OR IN PART UNDER APPLICABLE LAW, INDEMNITEE SHALL HAVE THE RIGHT TO COMMENCE
LITIGATION SEEKING AN
2
INITIAL DETERMINATION BY THE COURT OR CHALLENGING ANY SUCH DETERMINATION BY THE
REVIEWING PARTY OR ANY ASPECT THEREOF, INCLUDING THE LEGAL OR FACTUAL BASES
THEREFOR, AND EACH OF THE COMPANY AND THE BANK HEREBY CONSENTS TO SERVICE OF
PROCESS AND TO APPEAR IN ANY SUCH PROCEEDING. ANY DETERMINATION BY THE REVIEWING
PARTY OTHERWISE SHALL BE CONCLUSIVE AND BINDING ON UNITY AND INDEMNITEE.
MANDATORY PAYMENT OF EXPENSES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, OTHER THAN SECTION 10 HEREOF, TO THE EXTENT THAT INDEMNITEE HAS BEEN
SUCCESSFUL ON THE MERITS OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE
DISMISSAL OF AN ACTION WITHOUT PREJUDICE, IN DEFENSE OF ANY ACTION, SUIT,
PROCEEDING, INQUIRY OR INVESTIGATION REFERRED TO IN SECTION (2)(A) HEREOF OR IN
THE DEFENSE OF ANY CLAIM, ISSUE OR MATTER THEREIN, INDEMNITEE SHALL BE
INDEMNIFIED AGAINST ALL EXPENSES INCURRED BY INDEMNITEE IN CONNECTION THEREWITH.
EXPENSES; INDEMNIFICATION PROCEDURE.
ADVANCEMENT OF EXPENSES. UNITY SHALL ADVANCE ALL EXPENSES INCURRED BY
INDEMNITEE. THE ADVANCES TO BE MADE HEREUNDER SHALL BE PAID BY UNITY TO
INDEMNITEE AS SOON AS PRACTICABLE BUT IN ANY EVENT NO LATER THAN TEN BUSINESS
DAYS AFTER