INDEMNIFICATION OBLIGATION UNDER THIS AGREEMENT, AND NEITHER SELLER NOR ANY
AFFILIATE OF SELLER SHALL BE ENTITLED TO ANY INDEMNIFICATION COVERAGE UNDER THIS
AGREEMENT, BASED ON THE MERE FACT THAT BUYER OR AN AFFILIATE OF BUYER
MANUFACTURED, SOLD, LEASED, LICENSED, MARKETED, DISTRIBUTED OR USED ANY ACQUIRED
ASSET (IN THE SAME CONDITION AS EXISTED AS OF THE CLOSING) IN COMPLIANCE WITH
THE APPLICABLE (IF ANY) GAMING PERMITS AND/OR GAMING PRODUCT APPROVALS, AFTER
CLOSING.
(C)
DEFENSE OF CLAIMS.
ANY PARTY MAKING A CLAIM FOR INDEMNIFICATION UNDER
THIS SECTION 7.2 (AN "INDEMNITEE") SHALL NOTIFY THE INDEMNIFYING PARTY (AN
"INDEMNITOR") OF THE CLAIM IN WRITING AND, IF BY A THIRD PARTY, PROMPTLY AFTER
RECEIVING WRITTEN NOTICE OF ANY ACTION, LAWSUIT, PROCEEDING, INVESTIGATION OR
OTHER CLAIM AGAINST IT; AND, IN ALL EVENTS, DESCRIBING THE CLAIM, THE AMOUNT
THEREOF (IF KNOWN AND QUANTIFIABLE), AND THE BASIS THEREOF; PROVIDED THAT THE
FAILURE TO SO NOTIFY AN INDEMNITOR SHALL NOT RELIEVE THE INDEMNITOR OF ITS
OBLIGATIONS HEREUNDER EXCEPT TO THE EXTENT THAT (AND ONLY TO THE EXTENT THAT)
SUCH FAILURE SHALL HAVE CAUSED THE DAMAGES FOR WHICH THE INDEMNITOR IS OBLIGATED
TO BE GREATER THAN SUCH DAMAGES WOULD HAVE BEEN HAD THE INDEMNITEE GIVEN THE
INDEMNITOR PROMPT NOTICE HEREUNDER.
ANY INDEMNITOR SHALL DEFEND SUCH ACTION,
LAWSUIT, PROCEEDING, INVESTIGATION OR OTHER CLAIM GIVING RISE TO AN INDEMNITEE'S
CLAIM FOR INDEMNIFICATION AT SUCH INDEMNITOR'S EXPENSE, AND (SUBJECT TO THE
LIMITATIONS SET FORTH BELOW) SHALL ASSUME THE DEFENSE THEREOF BY APPOINTING AN
AV-RATED COUNSEL EXPERIENCED IN THE SUBJECT MATTER OF SUCH CLAIM AND REASONABLY
ACCEPTABLE TO THE INDEMNITEE TO BE THE LEAD COUNSEL IN CONNECTION WITH SUCH
DEFENSE; PROVIDED FURTHER, THAT:
(I)
THE INDEMNITEE SHALL BE ENTITLED TO PARTICIPATE IN THE DEFENSE OF
SUCH CLAIM AND TO EMPLOY COUNSEL OF ITS CHOICE FOR SUCH PURPOSE; PROVIDED THAT,
AS LONG AS THE INDEMNITOR IS DEFENDING, AT ITS SOLE COST, AND PAYING, CURRENTLY
AND AS INCURRED, ALL LEGAL FEES AND LITIGATION COSTS AND EXPENSES OF THE
INDEMNITEE, THE FEES AND EXPENSES OF SUCH SEPARATE COUNSEL SHALL BE BORNE BY THE
INDEMNITEE; BUT FURTHER, IF INDEMNITOR IS IN BREACH OF ANY PROVISION OF
SECTION 7.2(C), THEN, NOTWITHSTANDING ANY OTHER PROVISIONS CONTAINED IN THIS
AGREEMENT,
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THE INDEMNITEE SHALL HAVE THE RIGHT TO CONTROL THE DEFENSE AND SETTLEMENT OF
SUCH CLAIM, WITH COUNSEL OF ITS OWN CHOOSING, AND ALL AT INDEMNITOR'S SOLE
EXPENSE;
(II)
THE INDEMNITOR SHALL NOT BE ENTITLED TO ASSUME CONTROL OF SUCH
DEFENSE AND SHALL, AS INCURRED BY THE INDEMNITEE, PAY THE LEGAL FEES AND
LITIGATION EXPENSES OF COUNSEL RETAINED BY THE INDEMNITEE IF:
(A) THE CLAIM FOR
INDEMNIFICATION RELATES TO OR ARISES IN CONNECTION WITH ANY CRIMINAL PROCEEDING,
ACTION, INDICTMENT, ALLEGATION OR INVESTIGATION; (B) THE INDEMNITEE REASONABLY
BELIEVES AN ADVERSE DETERMINATION WITH RESPECT TO THE ACTION, LAWSUIT,
INVESTIGATION, PROCEEDING OR OTHER CLAIM GIVING RISE TO SUCH CLAIM FOR
INDEMNIFICATION WOULD BE DETRIMENTAL TO OR INJURE THE INDEMNITEE'S REPUTATION,
FUTURE BUSINESS PROSPECTS, OR ANY REGULATORY LICENSES, GAMING PERMITS, OR GAMING
PRODUCT APPROVALS; (C) THE CLAIM SEEKS AN INJUNCTION OR EQUITABLE RELIEF AGAINST