IF
THE INDEMNIFYING PERSON IN FACT PROMPTLY ASSUMES SUCH DEFENSE; PROVIDED,
HOWEVER, THAT IF THERE EXISTS OR SHALL EXIST A CONFLICT OF INTEREST THAT WOULD
MAKE IT INAPPROPRIATE, IN THE OPINION OF COUNSEL TO THE INDEMNIFIED PERSON, FOR
THE SAME COUNSEL TO REPRESENT BOTH THE INDEMNIFIED PERSON AND SUCH INDEMNIFYING
PERSON OR ANY AFFILIATE OR ASSOCIATE THEREOF, THE INDEMNIFIED PERSON SHALL BE
ENTITLED TO SELECT AND RETAIN ITS OWN INDEPENDENT COUNSEL AT THE COST AND
EXPENSE OF SUCH INDEMNIFYING PERSON; PROVIDED, HOWEVER, THAT NO INDEMNIFYING
PERSON SHALL BE RESPONSIBLE FOR THE FEES AND EXPENSES OF MORE THAN ONE SEPARATE
COUNSEL FOR ALL INDEMNIFIED PARTIES (IN ADDITION TO NOT MORE THAN ONE LOCAL
COUNSEL IN EACH RELEVANT JURISDICTION).
THE INDEMNIFYING PARTY SHALL NOT BE
LIABLE TO INDEMNIFY AN INDEMNIFIED PARTY FOR LOSSES ASSOCIATED WITH ANY
SETTLEMENT, OR CONSENT TO JUDGMENT, EFFECTED WITHOUT THE INDEMNIFYING PARTY'S
PRIOR CONSENT (NOT TO BE UNREASONABLY DELAYED, CONDITIONED OR WITHHELD).
FURTHER, THE INDEMNIFYING PARTY SHALL NOT CONSENT TO ENTRY OF ANY JUDGMENT OR
ENTER INTO ANY SETTLEMENT AGREEMENT WITH RESPECT TO ANY INDEMNIFIED LOSSES WHICH
(I) CONTAINS ANY ADMISSION OF FAULT OR LIABILITY OF THE INDEMNIFIED PARTY, (II)
DOES NOT INCLUDE AN UNCONDITIONAL WAIVER AND RELEASE OF ANY FURTHER OR
ADDITIONAL CLAIMS BY THE CLAIMANTS OR PLAINTIFFS AGAINST THE INDEMNIFIED PARTY,
OR (III) OBLIGATES THE INDEMNIFIED PERSON TO TAKE OR REFRAIN FROM TAKING ANY
ACTION (OTHER THAN WITH RESPECT TO ANY SETTLED CLAIM).
(E)
CONTRIBUTION.
EACH PARTY HERETO AGREES THAT, IF FOR ANY REASON
THE INDEMNIFICATION PROVISIONS CONTEMPLATED BY SECTION 4.27 OR THIS SECTION 8.2
ARE UNAVAILABLE, UNENFORCEABLE OR ARE INSUFFICIENT TO PROVIDE THE
INDEMNIFICATION FOR LOSSES PROVIDED THEREIN, THEN EACH INDEMNIFYING PARTY SHALL
CONTRIBUTE TO THE AMOUNT PAID OR PAYABLE BY SUCH INDEMNIFIED PARTY AS A RESULT
OF SUCH LOSSES IN SUCH PROPORTION AS IS APPROPRIATE TO REFLECT THE RELATIVE
FAULT OF THE INDEMNIFYING PARTY AND THE INDEMNIFIED PARTY FOR SUCH LOSSES AS
WELL AS ANY OTHER RELEVANT EQUITABLE CONSIDERATIONS.
THE RELATIVE FAULT OF SUCH
INDEMNIFYING PARTY AND INDEMNIFIED PARTY SHALL BE DETERMINED BY REFERENCE TO,
AMONG OTHER THINGS, THE FACTS AND CIRCUMSTANCES SURROUNDING ANY BREACH OR
VIOLATION GIVING RISE TO SUCH LOSSES AND, IF APPLICABLE, WHETHER THE UNTRUE
STATEMENT RELATES TO INFORMATION SUPPLIED BY SUCH INDEMNIFYING PARTY OR
INDEMNIFIED PARTY, AND THE PARTIES' RELATIVE INTENT, KNOWLEDGE, ACCESS TO
INFORMATION AND OPPORTUNITY TO CORRECT OR PREVENT SUCH UNTRUE STATEMENT.
THE
PARTIES HERETO AGREE THAT, SHOULD THE INTENDED INDEMNIFICATION PURSUANT TO
SECTION 4.27 OR THIS SECTION 8.2 BE UNAVAILABLE, UNENFORCEABLE OR OTHERWISE
INSUFFICIENT, IT WOULD NOT BE JUST AND EQUITABLE IF CONTRIBUTION PURSUANT TO
THIS SECTION 8.2(E) WERE DETERMINED BY PRO RATA ALLOCATION OR BY ANY OTHER
METHOD OF ALLOCATION WHICH DOES NOT TAKE INTO ACCOUNT THE EQUITABLE
CONSIDERATIONS REFERRED TO IN THIS SECTION 8.2(E).
NOTWITHSTANDING THE
FOREGOING OR ANYTHING TO THE CONTRARY CONTAINED HEREIN, 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