LOSSES, CLAIMS, DAMAGES OR LIABILITIES TO WHICH THE COMPANY AND THE
SUBSIDIARY GUARANTORS OR ANY SUCH DIRECTOR, OFFICER OR CONTROLLING PERSON MAY
BECOME SUBJECT UNDER THE ACT, THE EXCHANGE ACT OR OTHERWISE, INSOFAR AS SUCH
LOSSES, CLAIMS, DAMAGES OR LIABILITIES (OR ACTIONS IN RESPECT THEREOF) ARISE OUT
OF OR ARE BASED UPON (I) ANY UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OF ANY
MATERIAL FACT CONTAINED IN ANY MEMORANDUM OR ANY AMENDMENT OR SUPPLEMENT
THERETO, OR (II) THE OMISSION OR THE ALLEGED OMISSION TO STATE THEREIN A
MATERIAL FACT REQUIRED TO BE STATED IN ANY MEMORANDUM OR ANY AMENDMENT OR
SUPPLEMENT THERETO, OR NECESSARY TO MAKE THE STATEMENTS THEREIN NOT MISLEADING,
IN EACH CASE TO THE EXTENT, BUT ONLY TO THE EXTENT, THAT SUCH UNTRUE STATEMENT
OR ALLEGED UNTRUE STATEMENT OR OMISSION OR ALLEGED OMISSION WAS MADE IN RELIANCE
UPON AND IN CONFORMITY WITH WRITTEN INFORMATION CONCERNING SUCH INITIAL
PURCHASER, FURNISHED TO THE COMPANY BY THE INITIAL PURCHASERS THROUGH DEUTSCHE
BANK SECURITIES INC. SPECIFICALLY FOR USE THEREIN; AND SUBJECT TO THE LIMITATION
SET FORTH IMMEDIATELY PRECEDING THIS CLAUSE, WILL REIMBURSE, AS INCURRED, ANY
REASONABLE LEGAL OR OTHER DOCUMENTED EXPENSES INCURRED BY THE COMPANY AND THE
SUBSIDIARY GUARANTORS OR ANY SUCH DIRECTOR, OFFICER OR CONTROLLING PERSON IN
CONNECTION WITH INVESTIGATING OR DEFENDING AGAINST OR APPEARING AS A THIRD PARTY
WITNESS IN CONNECTION WITH ANY SUCH LOSS, CLAIM, DAMAGE, LIABILITY OR ACTION IN
RESPECT THEREOF.
THE INDEMNITY PROVIDED FOR IN THIS SECTION 9 WILL BE IN
ADDITION TO ANY LIABILITY THAT THE INITIAL PURCHASERS MAY OTHERWISE HAVE TO THE
INDEMNIFIED PARTIES.
THE INITIAL PURCHASERS SHALL NOT BE LIABLE UNDER THIS
SECTION 9 FOR ANY SETTLEMENT OF ANY CLAIM OR ACTION EFFECTED WITHOUT THEIR
CONSENT, WHICH SHALL NOT BE UNREASONABLY WITHHELD.
(C)
PROMPTLY AFTER RECEIPT BY AN INDEMNIFIED
PARTY UNDER THIS SECTION 9 OF NOTICE OF THE COMMENCEMENT OF ANY ACTION FOR WHICH
SUCH INDEMNIFIED PARTY IS ENTITLED TO INDEMNIFICATION UNDER THIS SECTION 9, SUCH
INDEMNIFIED PARTY WILL, IF A CLAIM IN RESPECT THEREOF IS TO BE MADE AGAINST THE
INDEMNIFYING PARTY UNDER THIS SECTION 9, NOTIFY THE INDEMNIFYING PARTY OF THE
COMMENCEMENT THEREOF IN WRITING; BUT THE OMISSION TO SO NOTIFY THE INDEMNIFYING
PARTY (I) WILL NOT RELIEVE IT FROM ANY LIABILITY UNDER PARAGRAPH (A) OR (B)
ABOVE UNLESS AND TO THE EXTENT SUCH FAILURE RESULTS IN THE FORFEITURE BY THE
INDEMNIFYING PARTY OF SUBSTANTIAL RIGHTS AND DEFENSES AND (II) WILL NOT, IN ANY
EVENT, RELIEVE THE INDEMNIFYING PARTY FROM ANY OBLIGATIONS TO ANY INDEMNIFIED
PARTY OTHER THAN THE INDEMNIFICATION OBLIGATION PROVIDED IN PARAGRAPHS (A) AND
(B) ABOVE.
IN CASE ANY SUCH ACTION IS BROUGHT AGAINST ANY INDEMNIFIED PARTY AND
IT NOTIFIES THE INDEMNIFYING PARTY OF THE COMMENCEMENT THEREOF, THE INDEMNIFYING
PARTY WILL BE ENTITLED TO PARTICIPATE THEREIN AND, TO THE EXTENT THAT IT MAY
WISH, JOINTLY WITH ANY OTHER INDEMNIFYING PARTY SIMILARLY NOTIFIED, TO ASSUME
THE DEFENSE THEREOF, WITH COUNSEL REASONABLY SATISFACTORY TO SUCH INDEMNIFIED
PARTY; PROVIDED, HOWEVER, THAT IF (I) THE USE OF COUNSEL CHOSEN BY THE
INDEMNIFYING PARTY TO REPRESENT