NOTICE OF CLAIM (OR AT THE SAME TIME IF THE INDEMNITEE SO ELECTS) THE INDEMNITEE
SHALL DELIVER COPIES OF ANY DEMAND OR COMPLAINT, THE AMOUNT OF DAMAGES, THE DATE
EACH SUCH ITEM WAS INCURRED OR PAID, OR THE BASIS FOR SUCH ANTICIPATED
LIABILITY, AND THE SPECIFIC NATURE OF THE BREACH TO WHICH SUCH ITEM IS RELATED.
SECTION 8.4.
Defense of Third-Party
Claims.
(A)
SUBJECT TO THE PROVISIONS HEREOF, THE INDEMNITOR ON BEHALF OF THE
INDEMNITEE SHALL HAVE THE RIGHT TO ELECT TO DEFEND ANY THIRD-PARTY CLAIM, AND
THE COSTS AND EXPENSES INCURRED BY
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the Indemnitor in connection with such defense by the Indemnitor (including
attorneys' fees, other professionals' and experts' fees and court or arbitration
costs) shall be paid by the Indemnitor; provided that Sellers shall be deemed to
have elected to defend the High Point Litigation.
If the Indemnitor so elects,
then the Indemnitee may participate, through counsel of its own choice and at
its own expense, in the defense of such Third-Party Claim.
(B)
INDEMNITEE SHALL GIVE PROMPT WRITTEN NOTICE OF ANY THIRD-PARTY CLAIM
TO THE INDEMNITOR; PROVIDED THAT (SO LONG AS SUCH NOTICE IS GIVEN ON OR PRIOR TO
THE SURVIVAL DATE, IN THE CASE OF A CLAIM RELATING TO A LIMITED-INDEMNITY ITEM)
THE FAILURE TIMELY TO GIVE SUCH NOTICE SHALL NOT LIMIT OR REDUCE THE
INDEMNITEE'S RIGHT TO INDEMNITY HEREUNDER UNLESS (AND THEN ONLY TO THE EXTENT
THAT) THE INDEMNITOR IS PREJUDICED THEREBY.
THE INDEMNITOR SHALL BE ENTITLED TO
ASSUME THE DEFENSE THEREOF UTILIZING LEGAL COUNSEL REASONABLY ACCEPTABLE TO THE
INDEMNITEE; PROVIDED THAT THE INDEMNITOR SHALL NOT BE ENTITLED TO ASSUME CONTROL
OF SUCH DEFENSE AND SHALL PAY THE FEES AND EXPENSES OF COUNSEL RETAINED BY THE
INDEMNITEE IF THE CLAIM FOR INDEMNIFICATION RELATES TO OR ARISES IN CONNECTION
WITH ANY CRIMINAL PROCEEDING, ACTION, INDICTMENT, ALLEGATION OR INVESTIGATION.
(C)
IF THE INDEMNITOR HAS THE RIGHT TO AND DOES ELECT TO DEFEND ANY
THIRD-PARTY CLAIM, THE INDEMNITOR SHALL, AT THE INDEMNITEE'S REQUEST, PERMIT THE
INDEMNITEE AND ITS COUNSEL TO CONFER ON THE CONDUCT OF THE DEFENSE THEREOF.
PURCHASER AND SELLERS SHALL MAKE AVAILABLE TO EACH OTHER AND EACH OTHER'S
COUNSEL AND ACCOUNTANTS, WITHOUT CHARGE, ALL OF ITS OR THEIR BOOKS AND RECORDS
RELATING TO THE THIRD-PARTY CLAIM, AND EACH PARTY WILL RENDER TO THE OTHER PARTY
SUCH ASSISTANCE AS MAY BE REASONABLY REQUIRED IN ORDER TO INSURE THE PROPER AND
ADEQUATE DEFENSE THEREOF AND SHALL FURNISH SUCH RECORDS, INFORMATION AND
TESTIMONY AND ATTEND SUCH CONFERENCES, DISCOVERY PROCEEDINGS, HEARINGS, TRIALS
AND APPEALS AS MAY BE REASONABLY REQUESTED BY THE OTHER PARTY IN CONNECTION
THEREWITH.
(D)
IF THE INDEMNITOR HAS THE RIGHT TO AND DOES ELECT TO DEFEND ANY
THIRD-PARTY CLAIM, THE INDEMNITOR SHALL HAVE THE RIGHT TO ENTER INTO ANY
SETTLEMENT OF A THIRD-PARTY CLAIM WITHOUT THE CONSENT OF THE INDEMNITEE;
PROVIDED THAT (I) SUCH SETTLEMENT DOES NOT INVOLVE ANY INJUNCTIVE OR OTHER
EQUITABLE RELIEF BINDING UPON THE INDEMNITEE OR ANY OF ITS AFFILIATES, AND
(II) SUCH SETTLEMENT EXPRESSLY AND UNCONDITIONALLY RELEASES THE INDEMNITEE FROM
ALL