Common use of Defense and Payment of Claims Clause in Contracts

Defense and Payment of Claims. If any action or proceeding (including any governmental investigation or inquiry) shall be brought or asserted or threatened to be brought or asserted against an indemnified party in respect of which indemnity may be sought hereunder from an indemnifying party, such indemnified party shall promptly notify the indemnifying party in writing, and such notice shall include a reference to the provisions of this Agreement and/or the Documents in respect of which such right of indemnification is claimed or arises and the amount, and the indemnifying party may, in its sole discretion, promptly upon receipt of such notice (no later than 15 days after receipt of such notice), assume the defense thereof, including the retention of counsel of its choice reasonably satisfactory to such indemnified party. If the indemnifying party has assumed the defense of the action or proceeding, then the indemnifying party shall not, except with the written consent of the indemnified party (which consent shall not be unreasonably withheld), consent to the entry of a judgment or settlement, unless the judgment or proposed settlement involves the payment of money damages by one or more of the indemnifying parties and does not impose injunctive or other equitable relief upon the indemnified party or unless the settlement involves a full and unconditional release of the indemnified party. The indemnified party shall provide the indemnifying party with access to its records and personnel relating to any such action or proceeding during normal business hours and shall otherwise cooperate with the indemnifying party in the defense or settlement thereof, and the indemnifying party shall reimburse the indemnified party for all its reasonable out-of-pocket expenses in connection therewith. If the indemnified party assumes the defense of any such claim or proceeding, the indemnified party will not consent to the entry of any judgment or enter into any settlement with respect to any third party claim without the prior written consent of the indemnifying party (which consent shall not be unreasonably withheld). If the indemnifying party elects to assume the defense of any such action or proceeding, the indemnified party shall have the right, in its sole discretion, to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expense of such indemnified party. The indemnifying party shall not be liable for any settlement of any such action or proceeding effected without its written consent, but if settled with its written consent (which shall not be unreasonably withheld), or if there is a final judgment for the plaintiff in any such action or proceeding, the indemnifying party agrees to indemnify and hold harmless such indemnified parties from and against any loss or liability by reason of such settlement or judgment.

Defense and Payment of Claims. (a) If Newco receives notice of the assertion or commencement of any action Third Party Claim which is subject to indemnification under this Agreement, Newco will give Xxxx-Xxxxxx and the Loomis Stockholders Trust reasonably prompt written notice thereof. Such notice will (i) describe the Third Party Claim in reasonable detail, (ii) include copies of all material written evidence thereof and (iii) indicate the estimated amount, if reasonably practicable, of the cost, expense, loss or proceeding (including any governmental investigation diminution in value that has been or inquiry) shall be brought or asserted or threatened to be brought or asserted against an indemnified party in respect of which indemnity may be sought hereunder from an indemnifying party, such indemnified party shall promptly notify the indemnifying party in writing, and such notice shall include sustained by Newco as a reference to the provisions of this Agreement and/or the Documents in respect of which such right of indemnification is claimed or arises and the amount, and the indemnifying party may, in its sole discretion, promptly upon receipt result of such notice (no later than 15 days after receipt of such notice), assume the defense thereof, including the retention of counsel of its choice reasonably satisfactory to such indemnified partyThird Party Claim. If the indemnifying party has assumed the defense of the action or proceeding, then the The indemnifying party shall nothave the right to participate in, except with the or, by giving written consent of the indemnified party (which consent shall not be unreasonably withheld)notice to Newco, consent to the entry of a judgment or settlement, unless the judgment or proposed settlement involves the payment of money damages by one or more of the indemnifying parties assume and does not impose injunctive or other equitable relief upon the indemnified party or unless the settlement involves a full and unconditional release of the indemnified party. The indemnified party shall provide the indemnifying party with access to its records and personnel relating to any such action or proceeding during normal business hours and shall otherwise cooperate with the indemnifying party in the defense or settlement thereof, and the indemnifying party shall reimburse the indemnified party for all its reasonable out-of-pocket expenses in connection therewith. If the indemnified party assumes control the defense of any Third Party Claim at such claim or proceedingindemnifying party's own expense and by such indemnifying party's own counsel (reasonably satisfactory to Newco), the indemnified party will not consent and Newco will, and, to the entry extent that such Third Party Claim relates to acts or omissions of any judgment or enter into any settlement with respect Xxxxx Fargo prior to any third party claim without the prior written consent of the Closing, Xxxx-Xxxxxx and Xxxxx Fargo will, cooperate in good faith in such defense. If an indemnifying party (which consent shall not be unreasonably withheld). If the indemnifying party elects to assume the defense of any a Third Party Claim or shall not diligently defend a Third Party Claim so assumed by such action or proceedingindemnifying party, Newco shall defend such Third Party Claims and may settle such claims at the indemnified party shall have discretion of the right, in its sole discretion, to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses Board of such counsel shall be the expense Directors of such indemnified partyNewco. The indemnifying party shall not be liable for any settlement of any such action or proceeding Third Party Claim effected without its written consent, but if settled with its written consent (which shall not be unreasonably withheld), . Within thirty days after the receipt of notice from Newco of such settlement or if there a judgment in respect of such claim which is final and nonappealable or as to which a final judgment for decision by Newco and the plaintiff in indemnifying party has been made not to undertake any such action or proceedingfurther appeal, the indemnifying party agrees shall deliver cash payment to indemnify and hold harmless such indemnified parties from and against any loss or liability by reason Newco in the amount of such settlement Indemnifiable Loss. (b) Newco will give Xxxx-Xxxxxx and the Loomis Stockholders Trust reasonably prompt notice of the incurrence of any Indemnifiable Loss which does not result from a Third Party Claim (a "Direct Claim"). Any such notice will (i) describe the Direct Claim in reasonable detail, (ii) include copies of all material written evidence thereof and (iii) indicate the estimated amount, if reasonably practicable, of the Indemnifiable Loss that has been or judgmentmay be sustained by the Loomis Parties or the Xxxxx Fargo Parties, as the case may be, as a result of such Direct Claim. Within thirty days after the receipt of the notice of a Direct Claim, the Loomis Stockholders Trust or Xxxx-Xxxxxx, as the case may be, shall deliver cash payment to Newco in the amount set forth in such notice, unless the procedures for arbitration set forth in Section 12.5(c) are elected by such party for any disputed Indemnifiable Loss as a result of a Direct Claim within such thirty days. (c) Subject to Section 12.6 hereof, in the event that either Xxxx- Xxxxxx or the Loomis Stockholders Trust disagree as to the amount of any Indemnifiable Loss which arises out of a Direct Claim or in connection with Section 12.1, 12.3 or 12.4 hereof, at the request of either the Loomis Stockholders Trust or Borg-Warner, as the case may be, the matter shall be settled exclusively by arbitration held in such place as is determined by the arbitrators, pursuant to the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be heard before three arbitrators, each experienced in the matters at issue, one to be selected by the Loomis Stockholders Trust or Borg-Warner, as the case may be, one to be selected by Newco and the third to be selected by the first two arbitrators. The arbitrators shall apply the law of the State of New York applicable to contracts made and to be performed entirely in such state (without giving effect to conflicts of law provisions thereof) in resolving any such dispute. The arbitrators shall not have the power or authority to alter, modify, amend, add to or subtract from any term or provision of this Agreement, nor to grant any injunctive relief, including interim relief, of any nature. In all other respects, the Commercial Arbitration Rules of the American Arbitration Association shall govern the arbitration. The parties acknowledge and agree that the decision of the arbitrators pursuant to this Section 12.5(c) shall be final and nonappealable and may be enforced by either the Loomis Stockholders Trust or Borg-Warner, as the case may be, or Newco in any court of record having jurisdiction over the subject matter or over any of the parties to this Agreement. Any amount awarded by the arbitrator pursuant to this Section 12.5 shall be paid promptly to the appropriate party by wire transfer to an account designated by such party.

Defense and Payment of Claims. (i) Promptly after receipt by a Party entitled to indemnity under Sections 7.2(a) or 7.2(b)(an "Indemnified Party") of notice of the assertion of a claim by a Person who is not a Party (a "Third Party Claim") against it, such Indemnified Party shall give notice to the Party obligated to indemnify under such Section (an "Indemnifying Party") of the assertion of such Third Party Claim, provided that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim is prejudiced by the Indemnified Party's failure to give such notice. (ii) If any action or proceeding (including any governmental investigation or inquiryan Indemnified Party gives notice to the Indemnifying Party pursuant to Section 7.2(d)(i) of the assertion of a Third Party Claim, the Indemnifying Party shall be brought or asserted or threatened entitled to be brought or asserted against an indemnified party participate in respect the defense of which indemnity may be sought hereunder from an indemnifying partysuch Third Party Claim and, such indemnified party shall promptly notify the indemnifying party in writing, and such notice shall include a reference to the provisions extent that it wishes unless (i) the Indemnifying Party is also a Person against whom the Third Party Claim is made and the Indemnified Party determines in good faith that joint representation would be inappropriate or (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such Third Party Claim and provide indemnification with respect to such Third Party Claim), to assume the defense of such Third Party Claim with counsel satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such Third Party Claim, the Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to the Indemnified Party under this Section 7 for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party Claim, (i) such assumption will conclusively establish for purposes of this Agreement and/or that the Documents claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party's consent unless (A) there is no finding or admission of any violation of Law or any violation of the rights of any Person, (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, and (C) the Indemnified Party shall have no liability with respect to any compromise or settlement of which such right Third Party Claims effected without its or his consent. If notice is given to an Indemnifying Party of indemnification is claimed or arises the assertion of any Third Party Claim and the amountIndemnifying Party does not, and within ten (10) business days after the indemnifying party Indemnified Party's notice is given, give notice to the Indemnified Party of its or his election to assume the defense of such Third Party Claim, the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party. (iii) Notwithstanding the foregoing, if counsel for an Indemnified Party determines in good faith that there is a reasonable probability that a Third Party Claim may adversely affect it other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnified Party may, in its sole discretion, promptly upon receipt of such by notice (no later than 15 days after receipt of such notice)to the Indemnifying Party, assume the defense thereofexclusive right to defend, including compromise or settle such Third Party Claim, but the retention Indemnifying Party will not be bound by any determination of counsel any Third Party Claim so defended for the purposes of this Agreement or any compromise or settlement effected without its choice reasonably satisfactory to such indemnified party. If the indemnifying party has assumed the defense of the action or proceeding, then the indemnifying party shall not, except with the written his consent of the indemnified party (which consent shall may not be unreasonably withheld). (iv) With respect to any Third Party Claim subject to indemnification under this Section 7, consent to (i) both the entry of a judgment or settlementIndemnified Party and the Indemnifying Party, unless as the judgment or proposed settlement involves case may be, shall keep the payment of money damages by one or more other Party fully informed of the indemnifying parties status of such Third Party Claim and does any related Proceedings at all stages thereof where such Party is not impose injunctive or other equitable relief upon the indemnified party or unless the settlement involves a full and unconditional release of the indemnified party. The indemnified party shall provide the indemnifying party with access to represented by its records and personnel relating to any such action or proceeding during normal business hours and shall otherwise cooperate with the indemnifying party in the defense or settlement thereofown counsel, and (ii) the indemnifying party shall reimburse Parties agree (each at its or his own expense) to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the indemnified party for all its reasonable out-of-pocket expenses in connection therewith. If the indemnified party assumes the proper and adequate defense of any such claim or proceeding, the indemnified party will not consent to the entry of any judgment or enter into any settlement with respect to any third party claim without the prior written consent of the indemnifying party (which consent shall not be unreasonably withheld). If the indemnifying party elects to assume the defense of any such action or proceeding, the indemnified party shall have the right, in its sole discretion, to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expense of such indemnified party. The indemnifying party shall not be liable for any settlement of any such action or proceeding effected without its written consent, but if settled with its written consent (which shall not be unreasonably withheld), or if there is a final judgment for the plaintiff in any such action or proceeding, the indemnifying party agrees to indemnify and hold harmless such indemnified parties from and against any loss or liability by reason of such settlement or judgmentThird Party Claim.

Defense and Payment of Claims. (a) If Newco receives notice of the assertion or commencement of any action Third Party Claim which is subject to indemnification under this Agreement, Newco will give Xxxx-Xxxxxx and the Loomis Stockholders Trust reasonably prompt written notice thereof. Such notice will (i) describe the Third Party Claim in reasonable detail, (ii) include copies of all material written evidence thereof and (iii) indicate the estimated amount, if reasonably practicable, of the cost, expense, loss or proceeding (including any governmental investigation diminution in value that has been or inquiry) shall be brought or asserted or threatened to be brought or asserted against an indemnified party in respect of which indemnity may be sought hereunder from an indemnifying party, such indemnified party shall promptly notify the indemnifying party in writing, and such notice shall include sustained by Newco as a reference to the provisions of this Agreement and/or the Documents in respect of which such right of indemnification is claimed or arises and the amount, and the indemnifying party may, in its sole discretion, promptly upon receipt result of such notice (no later than 15 days after receipt of such notice), assume the defense thereof, including the retention of counsel of its choice reasonably satisfactory to such indemnified partyThird Party Claim. If the indemnifying party has assumed the defense of the action or proceeding, then the The indemnifying party shall nothave the right to participate in, except with the or, by giving written consent of the indemnified party (which consent shall not be unreasonably withheld)notice to Newco, consent to the entry of a judgment or settlement, unless the judgment or proposed settlement involves the payment of money damages by one or more of the indemnifying parties assume and does not impose injunctive or other equitable relief upon the indemnified party or unless the settlement involves a full and unconditional release of the indemnified party. The indemnified party shall provide the indemnifying party with access to its records and personnel relating to any such action or proceeding during normal business hours and shall otherwise cooperate with the indemnifying party in the defense or settlement thereof, and the indemnifying party shall reimburse the indemnified party for all its reasonable out-of-pocket expenses in connection therewith. If the indemnified party assumes control the defense of any Third Party Claim at such claim or proceedingindemnifying party's own expense and by such indemnifying party's own counsel (reasonably satisfactory to Newco), the indemnified party will not consent and Newco will, and, to the entry extent that such Third Party Claim relates to acts or omissions of any judgment or enter into any settlement with respect Xxxxx Fargo prior to any third party claim without the prior written consent of the Closing, Xxxx-Xxxxxx and Xxxxx Fargo will, cooperate in good faith in such defense. If an indemnifying party (which consent shall not be unreasonably withheld). If the indemnifying party elects to assume the defense of any a Third Party Claim or shall not diligently defend a Third Party Claim so assumed by such action or proceedingindemnifying party, Newco shall defend such Third Party Claims and may settle such claims at the indemnified party shall have discretion of the right, in its sole discretion, to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses Board of such counsel shall be the expense Directors of such indemnified partyNewco. The indemnifying party shall not be liable for any settlement of any such action or proceeding Third Party Claim effected without its written consent, but if settled with its written consent (which shall not be unreasonably withheld), . Within thirty days after the receipt of notice from Newco of such settlement or if there a judgment in respect of such claim which is final and nonappealable or as to which a final judgment for decision by Newco and the plaintiff in indemnifying party has been made not to undertake any such action or proceedingfurther appeal, the indemnifying party agrees shall deliver cash payment to indemnify and hold harmless such indemnified parties from and against any loss or liability by reason Newco in the amount of such settlement Indemnifiable Loss. (b) Newco will give Xxxx-Xxxxxx and the Loomis Stockholders Trust reasonably prompt notice of the incurrence of any Indemnifiable Loss which does not result from a Third Party Claim (a "Direct Claim"). Any such notice will ------------ (i) describe the Direct Claim in reasonable detail, (ii) include copies of all material written evidence thereof and (iii) indicate the estimated amount, if reasonably practicable, of the Indemnifiable Loss that has been or judgmentmay be sustained by the Loomis Parties or the Xxxxx Fargo Parties, as the case may be, as a result of such Direct Claim. Within thirty days after the receipt of the notice of a Direct Claim, the Loomis Stockholders Trust or Xxxx-Xxxxxx, as the case may be, shall deliver cash payment to Newco in the amount set forth in such notice, unless the procedures for arbitration set forth in Section 12.5(c) are elected by such party for any disputed Indemnifiable Loss as a result of a Direct Claim within such thirty days. (c) Subject to Section 12.6 hereof, in the event that either Xxxx- Xxxxxx or the Loomis Stockholders Trust disagree as to the amount of any Indemnifiable Loss which arises out of a Direct Claim or in connection with Section 12.1, 12.3 or 12.4 hereof, at the request of either the Loomis Stockholders Trust or Xxxx-Xxxxxx, as the case may be, the matter shall be settled exclusively by arbitration held in such place as is determined by the arbitrators, pursuant to the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be heard before three arbitrators, each experienced in the matters at issue, one to be selected by the Loomis Stockholders Trust or Xxxx-Xxxxxx, as the case may be, one to be selected by Newco and the third to be selected by the first two arbitrators. The arbitrators shall apply the law of the State of New York applicable to contracts made and to be performed entirely in such state (without giving effect to conflicts of law provisions thereof) in resolving any such dispute. The arbitrators shall not have the power or authority to alter, modify, amend, add to or subtract from any term or provision of this Agreement, nor to grant any injunctive relief, including interim relief, of any nature. In all other respects, the Commercial Arbitration Rules of the American Arbitration Association shall govern the arbitration. The parties acknowledge and agree that the decision of the arbitrators pursuant to this Section 12.5(c) shall be final and nonappealable and may be enforced by either the Loomis Stockholders Trust or Xxxx-Xxxxxx, as the case may be, or Newco in any court of record having jurisdiction over the subject matter or over any of the parties to this Agreement. Any amount awarded by the arbitrator pursuant to this Section 12.5 shall be paid promptly to the appropriate party by wire transfer to an account designated by such party.

Defense and Payment of Claims. If any action or proceeding (including any governmental investigation or inquiry) shall be brought or asserted or threatened to be brought or asserted against an indemnified party in respect of which indemnity may be sought hereunder from an indemnifying party, such indemnified party shall promptly notify the indemnifying party in writing, and such notice shall include a reference to the provisions of this Agreement and/or the Documents in respect of which such right of indemnification is claimed or arises and the amount, and the indemnifying party may, in its sole discretion, promptly upon receipt of such notice (no later than 15 days after receipt of such notice), assume the defense thereof, including the retention of counsel of its choice reasonably satisfactory to such indemnified party. If the indemnifying party has assumed the defense of the action or proceeding, then the indemnifying party shall not, except with the written consent of the indemnified party (which consent shall not be unreasonably withheld), consent to the entry of a judgment or settlement, unless the judgment or proposed settlement involves the payment of money damages by one or more of the indemnifying parties and does not impose injunctive or other equitable relief upon the indemnified party or unless the settlement involves a full and unconditional release of the indemnified party. The indemnified party shall provide the indemnifying party with access to its records and personnel relating to any such action or proceeding during normal business hours and shall otherwise cooperate with the indemnifying party in the defense or settlement thereof, and the indemnifying party shall reimburse the indemnified party for all its reasonable out-of-pocket expenses in connection therewith. If the indemnified party assumes the defense of any such claim or proceeding, the indemnified party will not consent to the entry of any judgment or enter into any settlement with respect to any third party claim without the prior written consent of the indemnifying party (which consent shall not be unreasonably withheld). If the indemnifying party elects to assume the defense of any such action or of proceeding, the indemnified party shall have the right, in its sole discretion, to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expense of such indemnified party. The indemnifying party shall not be liable for any settlement of any such action or proceeding effected without its written consent, but if settled with its written consent (which shall not be unreasonably withheld), or if there is a final judgment for the plaintiff in any such action or proceeding, the indemnifying party agrees to indemnify and hold harmless such indemnified parties from and against any loss or liability by reason of such settlement or judgment.