Insurance and Subrogation. (a) The Corporation covenants and agrees that, as long as Indemnitee shall be entitled to indemnity under the terms of this Agreement, including Section 11(g) hereof, the Corporation, subject only to sub-part (b) of this Section 7, shall obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts from established and reputable insurers covering Indemnitee against any liability asserted against or incurred by Indemnitee or on Indemnitee’s behalf in any indemnified capacity whether or not the Corporation would have the power to indemnify Indemnitee against such liability under this Agreement. In all such D&O Insurance policies, Indemnitee shall be named as an insured in a manner that grants Indemnitee the same rights and benefits as are granted to the most favorably insured of the Corporation’s officers or directors. (b) Notwithstanding sub-part (a) of this Section 7, if the Corporation gives reasonable prior written notice to Indemnitee of the termination of D&O Insurance coverage, the Corporation shall be relieved of its duty to obtain and maintain D&O Insurance in future periods, if the Corporation in good faith determines that such insurance is not reasonably available in such future periods, or the premium costs for such insurance are disproportionate to the amount of coverage available, or the available coverage is so limited by exclusions that it provides an insufficient benefit, or Indemnitee is covered by similar insurance maintained by a subsidiary of the Corporation. (c) If the Corporation has D&O Insurance in effect at the time it receives a Section 6(a) Notice, the Corporation shall give due and prompt notice of the commencement of such Action, Suit or Proceeding to the insurer(s) in accordance with the procedures set forth in the applicable policy. The Corporation shall thereafter take all necessary or desirable action to cause each insurer to pay, on behalf of the Indemnitee, all amounts payable as a result of such Action, Suit or Proceeding in accordance with the terms of the applicable policy. (d) In the event of payments by the Corporation under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any such D&O Insurance policy. The Indemnitee shall execute all papers reasonably required and take all action reasonably necessary to secure such subrogation rights, including execution of such documents as are necessary to enable the Corporation to bring suit to enforce such rights in accordance with the terms of any such insurance policy. The Corporation shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation. (e) Anything herein or elsewhere to the contrary notwithstanding, the Corporation shall not be liable to make any indemnity payment if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement.
Appears in 1 contract
Insurance and Subrogation. 9.1. Tenant shall, at its expense, maintain during the Term fire and extended coverage insurance with an all-risk endorsement for the full insurable replacement cost of the Premises (aexcluding foundations) The Corporation covenants and agrees thatotherwise as reasonably acceptable to Landlord subject, as long as Indemnitee shall be entitled if Tenant so elects, to indemnity under a “deductible’ or self insurance in an amount reasonably approved by Landlord.
9.2. Tenant shall, at its expense, maintain during the terms Term a policy or policies of this Agreement, including Section 11(g) hereof, the Corporation, subject only to sub-part (b) of this Section 7, shall obtain and maintain in full force and effect directors’ and officers’ comprehensive general liability insurance (“D&O Insurance”) in reasonable amounts from established for claims of personal injury or death and reputable insurers covering Indemnitee against any liability asserted against property damage occurring in, about or incurred by Indemnitee or on Indemnitee’s behalf in any indemnified capacity whether or not the Corporation would have the power to indemnify Indemnitee against such liability under this Agreement. In all such D&O Insurance policies, Indemnitee shall be named as an insured in a manner that grants Indemnitee the same rights and benefits as are granted to the most favorably insured of the Corporation’s officers or directors.
(b) Notwithstanding sub-part (a) of this Section 7, if the Corporation gives reasonable prior written notice to Indemnitee of the termination of D&O Insurance coverage, the Corporation shall be relieved of its duty to obtain and maintain D&O Insurance in future periods, if the Corporation in good faith determines that such insurance is not reasonably available in such future periods, or the premium costs for such insurance are disproportionate to the amount of coverage available, or the available coverage is so limited by exclusions that it provides an insufficient benefit, or Indemnitee is covered by similar insurance maintained by a subsidiary of the Corporation.
(c) If the Corporation has D&O Insurance in effect at the time it receives a Section 6(a) Notice, the Corporation shall give due and prompt notice of the commencement of such Action, Suit or Proceeding to the insurer(s) in accordance with the procedures set forth in the applicable policy. The Corporation shall thereafter take all necessary or desirable action to cause each insurer to pay, on behalf of the Indemnitee, all amounts payable as a result of such Action, Suit or Proceeding in accordance with the terms use of the applicable Premises, with such coverage and in such amount as from time to time typically obtained by owners of properties such as the Premises (but as of the Commencement Date with minimum single limits of coverage for any one occurrence of $1,000,000), which insurance may provide for a “deductible” or self insurance in an amount reasonably approved by Landlord. Such insurance shall provide it is primary coverage and not excess over or contributory with any other insurance coverage.
9.3. All insurance policies required under Sections 9.1 and 9.2: (a) shall name Landlord, Tenant and any of Landlord’s mortgagees as insureds; (b) shall be payable to Landlord (or Landlord’s mortgagee as Landlord may direct) as to insurance under Section 9.1 and to discharge the liability insured against as to insurance under Section 9.2; (c) shall be purchased from companies reasonably satisfactory to Landlord; (d) may be maintained under a so-called “blanket policy” insuring other parties and other locations so long as the amount of required insurance is not diminished; and (e) contain each insurers’ binding agreement that it will give to Landlord and any of Landlord’s mortgagees thirty (30) days’ prior written notice of any alteration, termination or cancellation of coverage.
9.4. Tenant waives all claims against Landlord in respect of, and agrees to indemnify, defend and hold Landlord harmless from any liability or loss (including actual attorneys’ fees) in connection with, damage (actual or alleged) to any property (including, without limitation documents, files and work product) or injury to or death of any person (actual or alleged) in, upon or about the Premises arising at any time and from any cause (excluding the negligence of Landlord, its employees, agents or contractors) in, upon or about the Premises arising at any time. Any indemnification under this Section shall constitute Payment Obligations payable upon demand. Any insurance maintained by either party shall contain a clause or endorsement under which the insurer waives all rights of subrogation against the other party, its agents or employees, with respect to losses payable under the policy.
(d) In 9.5. Tenant shall, at its expense, maintain during the event Term insurance providing Landlord in the case this Lease is terminated under Section 8 with payment of payments by the Corporation Payment Obligations under this Agreement, Lease for a period of twelve (12) months beyond the Corporation date Tenant is liable for such. Such insurance shall be subrogated made payable to the extent of such payment to all of the rights of recovery of Indemnitee Landlord and otherwise comply with respect to any such D&O Insurance policy. The Indemnitee shall execute all papers reasonably required Section 9.3(c) and take all action reasonably necessary to secure such subrogation rights, including execution of such documents as are necessary to enable the Corporation to bring suit to enforce such rights in accordance with the terms of any such insurance policy. The Corporation shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) Anything herein or elsewhere to the contrary notwithstanding, the Corporation shall not be liable to make any indemnity payment if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement).
Appears in 1 contract
Insurance and Subrogation. (aA) The Corporation covenants During any applicable Term of this Lease, Tenant agrees to maintain policies of insurance as follows:
(1) Insuring the Premises and agrees thatEquipment which are now or shall hereafter constitute a portion of the Real Property against loss or damage by fire, and against such other risks of a similar or dissimilar nature as long as Indemnitee shall be entitled insurable against under present or future forms of special form property insurance policies available to indemnity under the terms owners of this Agreementproperty similar to the Premises in Seneca County, New York, including Section 11(gvandalism, malicious mischief and replacement cost endorsements naming Landlord Lender, its Successors and/or Assigns as first mortgagee. Such insurance shall in no event be for less than the full replacement cost of the Premises and the Equipment.
(2) hereof, the Corporation, subject only to sub-part Rental value and/or business interruption insurance in an amount of not less than one year’s Rent under this Lease.
(b3) of this Section 7, shall obtain and maintain in full force and effect directors’ and officers’ Commercial general liability insurance naming Landlord Lender, its Successors and/or Assigns as additional insured and Landlord as additional insured, assuring against loss, damage or liability for injury or death to persons and loss and damage to property occurring from any cause whatsoever upon, in or about the Premises in the amount of not less than TWO MILLION FIVE HUNDRED AND NO/DOLLARS (“D&O Insurance”$2,500,000.00) per occurrence. The minimum limits of the liability policy of insurance shall in reasonable amounts from established and reputable insurers covering Indemnitee against any liability asserted against no way limit or incurred by Indemnitee or on Indemniteediminish Tenant’s behalf in any indemnified capacity whether or not the Corporation would have the power to indemnify Indemnitee against such indemnity liability under this Agreement. In all such D&O Insurance policies, Indemnitee shall be named as an insured in a manner that grants Indemnitee the same rights and benefits as are granted to the most favorably insured of the Corporation’s officers or directorsLease.
(b4) Notwithstanding sub-part Workers’ compensation insurance as and if required by local law.
(a5) Flood and earthquake insurance in form and substance satisfactory to Landlord.
(6) Such other insurance (or increased limits) which is customarily carried by prudent operators of businesses similar to the Tenant’s business after the date of this Section 7Lease or which may be reasonably required by Landlord Lender from time to time.
(B) All insurance provided for herein shall be affected under valid and enforceable policies, if in form and substance then standard in New York and satisfactory to Landlord, issued by insurers of recognized responsibility approved of by Landlord. Upon the Corporation gives reasonable execution of this Lease, and thereafter thirty (30) days prior to the expiration dates of expiring policies, a certificate of insurance showing all coverage, policy limits and expiration dates for all insurance policies required by the Lease shall be delivered to Landlord, Landlord Lender and Agency. Without limiting the generality of the foregoing, such Certificate shall contain an agreement by the insurers that such policies shall not be canceled or materially modified without at least thirty (30) days prior written notice to Indemnitee of Landlord, Landlord Lender or Agency. All insurance with respect to damage or destruction to the termination of D&O Insurance coverage, Premises shall provide that the Corporation proceeds thereof shall be relieved payable to Tenant, Landlord, Landlord Lender and Agency as the insureds thereunder, as their respective interests may appear. All proceeds payable by reason of its duty loss under any insurance policy provided for herein shall be paid and applied as provided in this Lease.
(C) Tenant may effect any insurance required pursuant to obtain the terms hereof pursuant to blanket policies provided that the protection afforded pursuant to such policies with respect to the Premises shall not be less than that which is required pursuant to the terms hereof for a separate policy or policies.
(D) To the extent obtainable, each casualty and maintain D&O Insurance in future periodsliability insurance policy obtained and maintained by either Landlord or Tenant with respect to the Premises and Equipment shall contain appropriate clauses pursuant to which the insurance companies issuing such policies (i) waive all rights of subrogation against Landlord and Tenant, if the Corporation in good faith determines as applicable, with respect to losses payable under such policies and/or (ii) agree that such insurance is policies shall not reasonably available in be invalidated because the insured has hereby waived any and all right of recovery against Tenant for losses covered by such future periodspolicies.
(E) Landlord hereby waives any and all rights of recovery which it might otherwise have against Tenant, its directors, officers, partners, servants, agents, or the premium costs employees, for such insurance are disproportionate any loss, injury, or damage to the amount of coverage available, or extent the available coverage is so limited by exclusions that it provides an insufficient benefit, or Indemnitee same is covered by similar Landlord’s insurance maintained by a subsidiary and the proceeds are actually received, notwithstanding that such loss, injury, or damage may result from the negligence or fault of the Corporation.
(c) If the Corporation has D&O Insurance in effect at the time Tenant, its directors, officers, partners, servants, agents or employees. Tenant hereby waives any and all right of recovery which it receives a Section 6(a) Noticemight otherwise have against Landlord, the Corporation shall give due and prompt notice of the commencement of such Actionits partners, Suit officers, servants, agents, or Proceeding to the insurer(s) in accordance with the procedures set forth in the applicable policy. The Corporation shall thereafter take all necessary employees, for any loss, injury, or desirable action to cause each insurer to pay, on behalf of the Indemnitee, all amounts payable as a result of such Action, Suit or Proceeding in accordance with the terms of the applicable policy.
(d) In the event of payments by the Corporation under this Agreement, the Corporation shall be subrogated damage to the extent the same is covered by Tenant’s insurance and the proceeds are actually received, notwithstanding that such loss, injury or damage may result from the negligence or fault of such payment to all of the rights of recovery of Indemnitee with respect to any such D&O Insurance policy. The Indemnitee shall execute all papers reasonably required and take all action reasonably necessary to secure such subrogation rightsLandlord, including execution of such documents as are necessary to enable the Corporation to bring suit to enforce such rights in accordance with the terms of any such insurance policy. The Corporation shall pay its partners, officers, servants, agents, or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogationemployees.
(e) Anything herein or elsewhere to the contrary notwithstanding, the Corporation shall not be liable to make any indemnity payment if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement.
Appears in 1 contract
Insurance and Subrogation. (a) The Corporation covenants represents that it currently has in effect the following policy or policies of director and agrees thatofficer liability insurance (the “Insurance Policies”) which names or covers Indemnitee as an insured:
(b) So long as Indemnitee shall continue to serve as a director or officer of the Corporation, or shall continue at the request of the Corporation to serve as a director or officer, employee or agent of any Other Enterprise, and thereafter so long as Indemnitee shall be entitled subject to indemnity under any possible claim or is a party or is threatened to be made a party to any Proceeding, by reason of the terms fact that Indemnitee is or was a director or officer of this Agreement, including Section 11(g) hereof, the Corporation, subject only or is or was serving in any of said other capacities at the request of the Corporation, the Corporation shall be required to sub-part (b) maintain the Insurance Policies in effect or to obtain policies of this Section 7, shall obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts from established and reputable insurers covering with coverage in at least the amount or amounts as prescribed by the Insurance Policies and which provides the Indemnitee against any liability asserted against or incurred by Indemnitee or on Indemnitee’s behalf in any indemnified capacity whether or not the Corporation would have the power to indemnify Indemnitee against such liability under this Agreement. In all such D&O Insurance policies, Indemnitee shall be named as an insured in a manner that grants Indemnitee with substantially the same rights and benefits as the Insurance Policies, and which coverage, rights and benefits shall, in any event, be as favorable to Indemnitee as are granted accorded to the most favorably insured of the Corporation’s officers directors or directors.
officers, as the case may be (b“Comparable D&O Insurance”) Notwithstanding sub-part (a) unless, in the reasonable business judgment of this Section 7, if the Board of Directors of the Corporation gives reasonable prior written notice as it may exist from time to Indemnitee of time, either (i) the termination of premium cost for such Insurance Policies or Comparable D&O Insurance coverage, the Corporation shall be relieved of its duty to obtain and maintain D&O Insurance in future periods, if the Corporation in good faith determines that such insurance is not reasonably available in such future periods, or the premium costs for such insurance are disproportionate to the amount of coverage availableprovided, or (ii) the available coverage provided by such Insurance Policies or Comparable D&O Insurance is so limited by exclusions that it provides an there is insufficient benefitbenefit provided by such director and officer liability insurance; provided, however, that in the event that the Board of Directors makes such a determination, the Corporation shall provide notice to Indemnitee no less than ninety (90) days prior to the lapse or Indemnitee is covered by similar insurance maintained by a subsidiary termination of coverage under the CorporationInsurance Policies or Comparable D&O Insurance.
(c) If If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Corporation has D&O Insurance director and officer liability insurance in effect at the time it receives a Section 6(a) Noticeeffect, the Corporation shall give due and prompt notice of the commencement of such Actionclaim, Suit or and any Proceeding in which such claim is asserted, to the insurer(s) insurers in accordance with the procedures set forth in the applicable policyrespective policies. The Corporation shall thereafter take all necessary or desirable action to cause each insurer such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Action, Suit claim or Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the applicable policyobligations of the Corporation under this Agreement.
(d) In the event of payments any payment by the Corporation under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any such D&O Insurance insurance policy. The Indemnitee , who shall execute all papers reasonably required and take all action reasonably necessary to secure such subrogation rights, including execution of such documents as are necessary to enable the Corporation to bring suit to enforce such rights in accordance with the terms of any such insurance policy. The Corporation shall pay or reimburse all expenses Expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) Anything herein or elsewhere to the contrary notwithstanding, the The Corporation shall not be liable under this Agreement to make any indemnity payment of amounts otherwise indemnifiable hereunder (including, but not limited to, Expenses, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under the Corporation’s Certificate of Incorporation or ByLaws, or any insurance policy, contract, agreementagreement or otherwise.
(f) The Corporation’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Corporation as a director, officer, employee or agent of any Other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such Other Enterprise.
Appears in 1 contract
Insurance and Subrogation. (a) The Corporation covenants and agrees thatIf, as long as Indemnitee shall be entitled to indemnity under the terms of this Agreement, including Section 11(g) hereof, the Corporation, subject only to sub-part (b) of this Section 7, shall obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts from established and reputable insurers covering Indemnitee against any liability asserted against or incurred by Indemnitee or on Indemnitee’s behalf in any indemnified capacity whether or not the Corporation would have the power to indemnify Indemnitee against such liability under this Agreement. In all such D&O Insurance policies, Indemnitee shall be named as an insured in a manner that grants Indemnitee the same rights and benefits as are granted to the most favorably insured of the Corporation’s officers or directors.
(b) Notwithstanding sub-part (a) of this Section 7, if the Corporation gives reasonable prior written notice to Indemnitee of the termination of D&O Insurance coverage, the Corporation shall be relieved of its duty to obtain and maintain D&O Insurance in future periods, if the Corporation in good faith determines that such insurance is not reasonably available in such future periods, or the premium costs for such insurance are disproportionate to the amount of coverage available, or the available coverage is so limited by exclusions that it provides an insufficient benefit, or Indemnitee is covered by similar insurance maintained by a subsidiary of the Corporation.
(c) If the Corporation has D&O Insurance in effect at the time it the Company receives notice of a Section 6(a) Noticeclaim hereunder, the Corporation Company has director and officer liability insurance in effect, the Company shall give due and prompt notice of the commencement of such Action, Suit or Proceeding to the insurer(s) insurers in accordance with the procedures set forth in the applicable policyrespective policies. The Corporation Company shall thereafter take all necessary or desirable action to cause each insurer such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Action, Suit or Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the applicable policyobligations of the Company under this Agreement.
(db) In The Company hereby acknowledges that Indemnitee has or may from time to time obtain certain rights to indemnification, advancement of expenses and/or insurance provided by one or more third parties (collectively, the “Third-Party Indemnitors”). The Company hereby agrees that, with respect to the matters covered by the balance of this Agreement, it is the indemnitor of first resort (i.e., its obligations to Indemnitee are primary and any obligation of the Third-Party Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee are secondary), and that the Company will not assert that the Indemnitee must seek expense advancement or reimbursement, or indemnification, from any Third-Party Indemnitor before the Company must perform its expense advancement and reimbursement, and indemnification obligations, under this Agreement. No advancement or payment by the Third-Party Indemnitors on behalf of Indemnitee with respect to any claim for which Indemnitee has sought indemnification from the Company under this Agreement shall affect the foregoing. The Third-Party Indemnitors shall be subrogated to the extent of such advancement or payment to all of the rights of recovery which Indemnitee would have had against the Company under this Agreement if the Third-Party Indemnitors had not advanced or paid any amount to or on behalf of Indemnitee. If for any reason a court of competent jurisdiction determines that the Third-Party Indemnitors are not entitled to the subrogation rights described in the preceding sentence, the Third-Party Indemnitors shall have a right of contribution by the Company to the Third-Party Indemnitors with respect to any advance or payment by the Third-Party Indemnitors to or on behalf of the Indemnitee.
(c) Subject to Section 8.02(b), in the event of payments by the Corporation any payment under this Agreement, the Corporation Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any such D&O Insurance policy. The Indemnitee Indemnitee, who shall execute all papers reasonably required and take all action reasonably necessary to secure such subrogation rights, including execution of such documents as are necessary to enable the Corporation Company to bring suit to enforce such rights in accordance with the terms of any such insurance policy. The Corporation shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogationrights.
(ed) Anything herein or elsewhere Subject to the contrary notwithstandingSection 8.02(b), the Corporation Company shall not be liable under this Agreement to make any indemnity payment of amounts otherwise indemnifiable (or for which advancement is provided) hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreementpolicy or other indemnity provision.
Appears in 1 contract
Insurance and Subrogation. (a) The Corporation covenants represents that it currently has in effect the following policy or policies of director and agrees thatofficer liability insurance (the “Insurance Policies”) which names or covers Indemnitee as an insured:
(b) So long as Indemnitee shall continue to serve as a director or officer of the Corporation, or shall continue at the request of the Corporation to serve as a director or officer, employee or agent of any Other Enterprise, and thereafter so long as Indemnitee shall be entitled subject to indemnity under any possible claim or is a party or is threatened to be made a party to any Proceeding, by reason of the terms fact that Indemnitee is or was a director or officer of this Agreement, including Section 11(g) hereof, the Corporation, subject only or is or was serving in any of said other capacities at the request of the Corporation, the Corporation shall be required to sub-part (b) maintain the Insurance Policies in effect or to obtain policies of this Section 7, shall obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts from established and reputable insurers covering with coverage in at least the amount or amounts as prescribed by the Insurance Policies and which provides the Indemnitee against any liability asserted against or incurred by Indemnitee or on Indemnitee’s behalf in any indemnified capacity whether or not the Corporation would have the power to indemnify Indemnitee against such liability under this Agreement. In all such D&O Insurance policies, Indemnitee shall be named as an insured in a manner that grants Indemnitee with substantially the same rights and benefits as the Insurance Policies, and which coverage, rights and benefits shall, in any event, be as favorable to Indemnitee as are granted accorded to the most favorably insured of the Corporation’s officers directors or directors.
officers, as the case may be (b“Comparable D&O Insurance”) Notwithstanding sub-part (a) unless, in the reasonable business judgment of this Section 7, if the Board of Directors of the Corporation gives reasonable prior written notice as it may exist from time to Indemnitee of time, either (i) the termination of premium cost for such Insurance Policies or Comparable D&O Insurance coverage, the Corporation shall be relieved of its duty to obtain and maintain D&O Insurance in future periods, if the Corporation in good faith determines that such insurance is not reasonably available in such future periods, or the premium costs for such insurance are materially disproportionate to the amount of coverage availableprovided, or (ii) the available coverage provided by such Insurance Policies or Comparable D&O Insurance is so limited by exclusions that it provides an there is insufficient benefitbenefit provided by such director and officer liability insurance; provided, however, that in the event that the Board of Directors makes such a determination, the Corporation shall provide notice to Indemnitee no less than ninety (90) days prior to the lapse or Indemnitee is covered by similar insurance maintained by a subsidiary termination of coverage under the CorporationInsurance Policies or Comparable D&O Insurance.
(c) If If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Corporation has D&O Insurance director and officer liability insurance in effect at the time it receives a Section 6(a) Noticeeffect, the Corporation shall give due and prompt notice of the commencement of such Actionclaim, Suit or and any Proceeding in which such claim is asserted, to the insurer(s) insurers in accordance with the procedures set forth in the applicable policyrespective policies. The Corporation shall thereafter take all necessary or desirable action to cause each insurer such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Action, Suit claim or Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the applicable policyobligations of the Corporation under this Agreement.
(d) In the event of payments any payment by the Corporation under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any such D&O Insurance insurance policy. The Indemnitee , who shall execute all papers reasonably required and take all action reasonably necessary to secure such subrogation rights, including execution of such documents as are necessary to enable the Corporation to bring suit to enforce such rights in accordance with the terms of any such insurance policy. The Corporation shall pay or reimburse all expenses Expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) Anything herein or elsewhere to the contrary notwithstanding, the The Corporation shall not be liable under this Agreement to make any indemnity payment of amounts otherwise indemnifiable hereunder (including, but not limited to, Expenses, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under the Corporation’s Certificate of Incorporation or Bylaws, or any insurance policy, contract, agreementagreement or otherwise.
(f) The Corporation’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Corporation as a director, officer, employee or agent of any Other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such Other Enterprise.
Appears in 1 contract
Samples: Indemnification Agreement (Tuesday Morning Corp/De)
Insurance and Subrogation. (aA) The Corporation covenants During any applicable Term of this Lease, Tenant agrees to maintain policies of insurance as follows:
(1) Insuring the Premises and agrees thatEquipment which are now or shall hereafter constitute a portion of the Real Property against loss or damage by fire, and against such other risks of a similar or dissimilar nature as long as Indemnitee shall be entitled insurable against under present or future forms of special form property insurance policies available to indemnity under the terms owners of this Agreementproperty similar to the Premises in Spokane County, Washington, including Section 11(gvandalism, malicious mischief and replacement cost endorsements. Such insurance shall in no event be for less than the full replacement cost of the Premises and the Equipment.
(2) hereof, the Corporation, subject only to sub-part Rental value and/or business interruption insurance in an amount of not less than one year’s Rent under this Lease.
(b3) of this Section 7, shall obtain and maintain in full force and effect directors’ and officers’ Commercial general liability insurance assuring against loss, damage or liability for injury or death to persons and loss and damage to property occurring from any cause whatsoever upon, in or about the Premises in the amount of not less than TWO MILLION FIVE HUNDRED AND NO/DOLLARS (“D&O Insurance”$2,500,000.00) per occurrence. The minimum limits of the liability policy of insurance shall in reasonable amounts from established and reputable insurers covering Indemnitee against any liability asserted against no way limit or incurred by Indemnitee or on Indemniteediminish Tenant’s behalf in any indemnified capacity whether or not the Corporation would have the power to indemnify Indemnitee against such indemnity liability under this Agreement. In all such D&O Insurance policies, Indemnitee shall be named as an insured in a manner that grants Indemnitee the same rights and benefits as are granted to the most favorably insured of the Corporation’s officers or directorsLease.
(b4) Notwithstanding sub-part Workers’ compensation insurance as and if required by local law.
(a5) Flood and earthquake insurance in form and substance satisfactory to Landlord.
(6) Such other insurance (or increased limits) which is customarily carried by prudent operators of businesses similar to the Tenant’s business after the date of this Section 7Lease or which may be reasonably required by Landlord’s lender from time to time.
(B) All insurance provided for herein shall be effected under valid and enforceable policies, if in form and substance then standard in Washington and satisfactory to Landlord, issued by insurers of recognized responsibility approved of by Landlord. Upon the Corporation gives reasonable execution of this Lease, and thereafter thirty (30) days prior to the expiration dates of expiring policies theretofore furnished hereunder, originals of the policies, together with evidence that the premiums therefor have been paid, shall be delivered to Landlord. Without limiting the generality of the foregoing, all such policies shall contain an agreement by the insurers that such policies shall not be canceled or modified without at least thirty (30) days prior written notice to Indemnitee Landlord and to such other parties, including Landlord’s lender, as Landlord may designate to such insurers in writing from time to time including complete address and contact information, and shall provide that any loss shall be payable to Landlord notwithstanding (i) any act or negligence by Tenant or any lessee or other occupant of the termination Premises which might otherwise result in forfeiture of D&O Insurance coveragesaid insurance, (ii) use of all or any portion of the Corporation Premises for purposes more hazardous than permitted by such policy, (iii) any sale or other proceeding pursuant hereto or (iv) any change in title to or ownership of the Premises or any portion thereof. All insurance with respect to damage or destruction to the Property shall provide that the proceeds thereof shall be relieved of its duty payable to obtain and maintain D&O Insurance in future periodsLandlord or Landlord’s Lender, if so required, and all other insurance shall name Tenant and Landlord and such other parties as Landlord may designate as the Corporation insureds thereunder, as their respective interests may appear. All proceeds payable by reason of loss under any insurance policy provided for herein shall be paid to Landlord and applied as provided in good faith determines that such insurance is not reasonably available in such future periods, or the premium costs for such insurance are disproportionate to the amount of coverage available, or the available coverage is so limited by exclusions that it provides an insufficient benefit, or Indemnitee is covered by similar insurance maintained by a subsidiary of the Corporationthis Lease.
(cC) If the Corporation has D&O Insurance in Tenant may effect at the time it receives a Section 6(a) Notice, the Corporation shall give due and prompt notice of the commencement of such Action, Suit or Proceeding any insurance required pursuant to the insurer(s) in accordance terms hereof pursuant to blanket policies provided that the protection afforded pursuant to such policies with respect to the procedures set forth in the applicable policy. The Corporation Premises shall thereafter take all necessary or desirable action not be less than that which is required pursuant to cause each insurer to pay, on behalf of the Indemnitee, all amounts payable as a result of such Action, Suit or Proceeding in accordance with the terms of the applicable policy.
(d) hereof for a separate policy or policies. In the event of payments blanket insurance, Tenant shall not be required to deliver to Landlord originals of said policies but need only deliver copies thereof, certified by the Corporation insurance broker to be true, correct and complete.
(D) To the extent obtainable, each casualty and liability insurance policy obtained and maintained by either Landlord or Tenant with respect to the Premises and Equipment shall contain appropriate clauses pursuant to which the insurance companies issuing such policies (i) waive all rights of subrogation against Landlord and Tenant, as applicable, with respect to losses payable under this Agreementsuch policies and/or (ii) agree that such policies shall not be invalidated because the insured has hereby waived any and all right of recovery against Tenant for losses covered by such policies.
(E) Landlord hereby waives any and all rights of recovery which it might otherwise have against Tenant, the Corporation shall be subrogated its directors, officers, partners, servants, agents, or employees, for any loss, injury, or damage to the extent the same is covered by Landlord’s insurance and the proceeds are actually received, notwithstanding that such loss, injury, or damage may result from the negligence or fault of such payment to Tenant, its directors, officers, partners, servants, agents or employees. Tenant hereby waives any and all of the rights right of recovery of Indemnitee with respect to which it might otherwise have against Landlord, its partners, officers, servants, agents, or employees, for any such D&O Insurance policy. The Indemnitee shall execute all papers reasonably required and take all action reasonably necessary to secure such subrogation rightsloss, including execution of such documents as are necessary to enable the Corporation to bring suit to enforce such rights in accordance with the terms of any such insurance policy. The Corporation shall pay injury, or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) Anything herein or elsewhere to the contrary notwithstanding, the Corporation shall not be liable to make any indemnity payment if and damage to the extent the same is covered by Tenant’s insurance and the proceeds are actually received, notwithstanding that Indemnitee has otherwise actually received such payment under any insurance policyloss, contractinjury or damage may result from the negligence or fault of Landlord, agreementits partners, officers, servants, agents, or employees.
Appears in 1 contract
Insurance and Subrogation. (a) The Corporation covenants Company represents that it currently has in effect policy or policies of director and agrees thatofficer liability insurance (the “Insurance Policies”) which names or covers Indemnitee as an insured.
(b) So long as Indemnitee shall continue to serve as a director or officer of the Company, or shall continue at the request of the Company to serve as a director or officer, employee or agent of any Other Enterprise, and thereafter so long as Indemnitee shall be entitled subject to indemnity under any possible claim or is a party or is threatened to be made a party to any Proceeding, by reason of the terms fact that Indemnitee is or was a director or officer of this Agreementthe Company, including Section 11(g) hereofor is or was serving in any of said other capacities at the request of the Company, the Corporation, subject only Company shall be required to sub-part (b) maintain the Insurance Policies in effect or to obtain policies of this Section 7, shall obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts from established and reputable insurers covering with coverage in at least the amount or amounts as prescribed by the Insurance Policies and which provides the Indemnitee against any liability asserted against or incurred by Indemnitee or on Indemnitee’s behalf in any indemnified capacity whether or not the Corporation would have the power to indemnify Indemnitee against such liability under this Agreement. In all such D&O Insurance policies, Indemnitee shall be named as an insured in a manner that grants Indemnitee with substantially the same rights and benefits as the Insurance Policies, and which coverage, rights and benefits shall, in any event, be as favorable to Indemnitee as are granted accorded to the most favorably insured of the CorporationCompany’s officers directors or directors.
officers, as the case may be (b“Comparable D&O Insurance”) Notwithstanding sub-part (a) of this Section 7unless, if in the Corporation gives reasonable prior written notice to Indemnitee business judgment of the termination Board of Directors of the Company as it may exist from time to time, either (i) the premium cost for such Insurance Policies or Comparable D&O Insurance coverage, the Corporation shall be relieved of its duty to obtain and maintain D&O Insurance in future periods, if the Corporation in good faith determines that such insurance is not reasonably available in such future periods, or the premium costs for such insurance are disproportionate to the amount of coverage availableprovided, or (ii) the available coverage provided by such Insurance Policies or Comparable D&O Insurance is so limited by exclusions that it provides an there is insufficient benefitbenefit provided by such director and officer liability insurance; provided, however, that in the event that the Board of Directors makes such a determination, the Company shall provide notice to Indemnitee no less than thirty (30) days prior to the lapse or Indemnitee is covered by similar insurance maintained by a subsidiary termination of coverage under the CorporationInsurance Policies or Comparable D&O Insurance.
(c) If the Corporation has D&O Insurance in effect If, at the time it receives of the receipt of a Section 6(a) Noticenotice of a claim pursuant to the terms hereof, the Corporation Company has director and officer liability insurance in effect, the Company shall give due and prompt notice of the commencement of such Actionclaim, Suit or and any Proceeding in which such claim is asserted, to the insurer(s) insurers in accordance with the procedures set forth in the applicable policyrespective policies. The Corporation Company shall thereafter take all necessary or desirable action to cause each insurer such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Action, Suit claim or Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the applicable policy.
(d) obligations of the Company under this Agreement. In the event of payments any payment by the Corporation Company under this Agreement, the Corporation Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any such D&O Insurance insurance policy. The Indemnitee , who shall execute all papers reasonably required and take all action reasonably necessary to secure such subrogation rights, including execution of such documents as are necessary to enable the Corporation Company to bring suit to enforce such rights in accordance with the terms of any such insurance policy. The Corporation Company shall pay or reimburse all expenses Expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(ed) Anything herein or elsewhere to the contrary notwithstanding, the Corporation The Company shall not be liable under this Agreement to make any indemnity payment of amounts otherwise indemnifiable hereunder (including, but not limited to, Expenses, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under the Company’s Certificate of Incorporation or By-Laws, or any insurance policy, contract, agreementagreement or otherwise.
(e) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, employee or agent of any Other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such Other Enterprise.
Appears in 1 contract
Insurance and Subrogation. (a) The Corporation covenants Tenant shall carry insurance during the entire Term hereof and agrees thatany extension thereof insuring Tenant, and insuring Landlord, the managing agent for the Real Property and their respective agents, partners and employees, as long as Indemnitee their interests may appear, with terms, coverages and in companies reasonably satisfactory to Landlord, Tenant shall maintain the following coverages in the following amounts:
(i) Public liability insurance with the broad form comprehensive general liability endorsement, including contractual liability insurance covering Tenant's indemnity obligations hereunder, in an amount not less than $1,000,000 combined single limit per occurrence, together with umbrella and excess liability coverage of $5,000,000.
(ii) All risk" physical damage insurance including fire, sprinkler leakage, vandalism and extended coverage for the full replacement cost of all additions, improvements and alterations to the Premises (except to the extent that such are contemplated by the Plans) and of all office furniture, trade fixtures, office equipment, merchandise and all other items of Tenant's property on the Premises.
(iii) Business interruption or extra expense insurance with limits not less than those carried by a prudent tenant.
(iv) Worker's compensation insurance in the amounts required by applicable law. Tenant shall, prior to the commencement of the Term and from time to time during the Term, furnish to Landlord policies or certificates evidencing the foregoing insurance coverage. Tenant's policies shall state that such insurance coverage may not be reduced, canceled or not renewed without at least thirty (30) days' prior written notice to Landlord and Tenant (unless such cancellation is due to non-payment of premium, and in that case only ten (10) days' prior written notice shall be entitled to indemnity under the terms of this Agreement, including Section 11(g) hereof, the Corporation, subject only to sub-part (b) of this Section 7, shall obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts from established and reputable insurers covering Indemnitee against any liability asserted against or incurred by Indemnitee or on Indemnitee’s behalf in any indemnified capacity whether or not the Corporation would have the power to indemnify Indemnitee against such liability under this Agreement. In all such D&O Insurance policies, Indemnitee shall be named as an insured in a manner that grants Indemnitee the same rights and benefits as are granted to the most favorably insured of the Corporation’s officers or directorssufficient).
(b) Notwithstanding sub-part (a) During the entire Term of this Section 7Lease, if Landlord shall maintain the Corporation gives reasonable prior written notice to Indemnitee of following coverages in the termination of D&O Insurance coveragefollowing amounts, the Corporation shall be relieved of its duty to obtain and maintain D&O Insurance in future periods, if the Corporation in good faith determines that such naming Tenant as an additional insured: (i) Public liability insurance is not reasonably available in such future periods, or the premium costs for such insurance are disproportionate to the amount of coverage available, or the available coverage is so limited by exclusions that it provides an insufficient benefit, or Indemnitee is covered by similar insurance maintained by a subsidiary of the Corporation.
(c) If the Corporation has D&O Insurance in effect at the time it receives a Section 6(a) Notice, the Corporation shall give due and prompt notice of the commencement of such Action, Suit or Proceeding to the insurer(s) in accordance with the procedures set forth in the applicable policy. The Corporation shall thereafter take all necessary or desirable action to cause each insurer to pay, on behalf of the Indemnitee, all amounts payable as a result of such Action, Suit or Proceeding in accordance with the terms of the applicable policy.
(d) In the event of payments by the Corporation under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any such D&O Insurance policy. The Indemnitee shall execute all papers reasonably required and take all action reasonably necessary to secure such subrogation rightsbroad form comprehensive general liability endorsement, including execution contractual liability insurance covering Tenant's indemnity obligations hereunder, in an amount not less than $1,000,000 combined single limit per occurrence, together with umbrella and excess liability coverage of such documents as are necessary to enable the Corporation to bring suit to enforce such rights in accordance with the terms of any such insurance policy. The Corporation shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation$5,000,000.
(e) Anything herein or elsewhere to the contrary notwithstanding, the Corporation shall not be liable to make any indemnity payment if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement.
Appears in 1 contract
Samples: Office Lease (Excal Enterprises Inc)
Insurance and Subrogation. (a) The Corporation covenants represents that it currently has in effect policy or policies of director and agrees thatofficer liability insurance (the "Insurance Policies") which names or covers Indemnitee as an insured.
(b) So long as Indemnitee shall continue to serve as a director or officer of the Corporation, or shall continue at the request of the Corporation to serve as a director or officer, employee or agent of any Other Enterprise, and thereafter so long as Indemnitee shall be entitled subject to indemnity under any possible claim or is a party or is threatened to be made a party to any Proceeding, by reason of the terms fact that Indemnitee is or was a director or officer of this Agreement, including Section 11(g) hereof, the Corporation, subject only or is or was serving in any of said other capacities at the request of the Corporation, the Corporation shall be required to sub-part (b) maintain the Insurance Policies in effect or to obtain policies of this Section 7, shall obtain and maintain in full force and effect directors’ ' and officers’ ' liability insurance (“D&O Insurance”) in reasonable amounts from established and reputable insurers covering with coverage in at least the amount or amounts as prescribed by the Insurance Policies and which provides the Indemnitee against any liability asserted against or incurred by Indemnitee or on Indemnitee’s behalf in any indemnified capacity whether or not the Corporation would have the power to indemnify Indemnitee against such liability under this Agreement. In all such D&O Insurance policies, Indemnitee shall be named as an insured in a manner that grants Indemnitee with substantially the same rights and benefits as the Insurance Policies, and which coverage, rights and benefits shall, in any event, be as favorable to Indemnitee as are granted accorded to the most favorably insured of the Corporation’s officers 's directors or directors.
officers, as the case may be (b"Comparable D&O Insurance") Notwithstanding sub-part (a) unless, in the reasonable business judgment of this Section 7, if the Board of Directors of the Corporation gives reasonable prior written notice as it may exist from time to Indemnitee of time, either (i) the termination of premium cost for such Insurance Policies or Comparable D&O Insurance coverage, the Corporation shall be relieved of its duty to obtain and maintain D&O Insurance in future periods, if the Corporation in good faith determines that such insurance is not reasonably available in such future periods, or the premium costs for such insurance are disproportionate to the amount of coverage availableprovided, or (ii) the available coverage provided by such Insurance Policies or Comparable D&O Insurance is so limited by exclusions that it provides an there is insufficient benefitbenefit provided by such director and officer liability insurance; provided, however, that in the event that the Board of Directors makes such a determination, the Corporation shall provide notice to Indemnitee no less than thirty (30) days prior to the lapse or Indemnitee is covered by similar insurance maintained by a subsidiary termination of coverage under the CorporationInsurance Policies or Comparable D&O Insurance.
(c) If If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Corporation has D&O Insurance director and officer liability insurance in effect at the time it receives a Section 6(a) Noticeeffect, the Corporation shall give due and prompt notice of the commencement of such Actionclaim, Suit or and any Proceeding in which such claim is asserted, to the insurer(s) insurers in accordance with the procedures set forth in the applicable policyrespective policies. The Corporation shall thereafter take all necessary or desirable action to cause each insurer such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Action, Suit claim or Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the applicable policyobligations of the Corporation under this Agreement.
(d) In the event of payments any payment by the Corporation under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any such D&O Insurance insurance policy. The Indemnitee , who shall execute all papers reasonably required and take all action reasonably necessary to secure such subrogation rights, including execution of such documents as are necessary to enable the Corporation to bring suit to enforce such rights in accordance with the terms of any such insurance policy. The Corporation shall pay or reimburse all expenses Expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) Anything herein or elsewhere to the contrary notwithstanding, the The Corporation shall not be liable under this Agreement to make any indemnity payment of amounts otherwise indemnifiable hereunder (including, but not limited to, Expenses, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under the Corporation's Certificate of Incorporation or ByLaws, or any insurance policy, contract, agreementagreement or otherwise.
(f) The Corporation's obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Corporation as a director, officer, employee or agent of any Other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such Other Enterprise.
Appears in 1 contract
Samples: Indemnification Agreement (Compass Minerals International Inc)
Insurance and Subrogation. (a) The Corporation covenants For the duration of Indemnitee’s service as a director and/or officer of the Corporation, and agrees that, as thereafter for so long as Indemnitee shall be entitled subject to indemnity under the terms of this Agreement, including Section 11(g) hereofany pending or possible Proceeding or Claim, the Corporation, subject only Corporation shall use commercially reasonable efforts (taking into account the scope and amount of coverage available relative to sub-part (bthe cost thereof) to cause to be maintained in effect policies of this Section 7, shall obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts from established providing coverage for directors and/or officer of the Corporation. The Corporation shall provide Indemnitee with a copy of all directors’ and reputable insurers covering Indemnitee against any officers’ liability asserted against insurance applications, binders, policies, declarations, endorsements and other related materials. Without limiting the generality or incurred by Indemnitee or on Indemnitee’s behalf in any indemnified capacity whether or not effect of the two immediately preceding sentences, the Corporation would have shall not discontinue or significantly reduce the power scope or amount of coverage from one policy period to indemnify the next (i) without the prior approval thereof by a majority vote of the Incumbent Directors, even if less than a quorum, or (ii) if at the time that any such discontinuation or significant reduction in the scope or amount of coverage is proposed there are no Incumbent Directors, without the prior written consent of Indemnitee against such liability under this Agreement(which consent shall not be unreasonably withheld or delayed). In all such D&O Insurance policiespolicies of directors’ and officers’ liability insurance obtained by the Corporation, Indemnitee shall be named as an insured in such a manner that grants as to provide Indemnitee the same rights and benefits benefits, subject to the same limitations, as are granted accorded to the Corporation’s directors and officers most favorably insured of the Corporation’s officers or directors.
(b) Notwithstanding sub-part (a) of this Section 7, if the Corporation gives reasonable prior written notice to Indemnitee of the termination of D&O Insurance coverage, the Corporation shall be relieved of its duty to obtain and maintain D&O Insurance in future periods, if the Corporation in good faith determines that by such insurance is not reasonably available in such future periods, or the premium costs for such insurance are disproportionate to the amount of coverage available, or the available coverage is so limited by exclusions that it provides an insufficient benefit, or Indemnitee is covered by similar insurance maintained by a subsidiary of the Corporation.
(c) If the Corporation has D&O Insurance in effect at the time it receives a Section 6(a) Notice, the Corporation shall give due and prompt notice of the commencement of such Action, Suit or Proceeding to the insurer(s) in accordance with the procedures set forth in the applicable policy. The Corporation may, but shall thereafter take all necessary not be required to, create a trust fund, grant a security interest or desirable action use other means, including without limitation a letter of credit, to cause each insurer to pay, on behalf of ensure the Indemnitee, all amounts payable as a result payment of such Action, Suit or Proceeding in accordance with the terms of the applicable policy.
(d) amounts as may be necessary to satisfy its obligations to indemnify and advance Expenses pursuant to this Agreement. In the event of payments any payment by the Corporation under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the related rights of recovery of Indemnitee with respect to any such D&O Insurance policyagainst other persons or entities (other than Indemnitee’s successors). The Indemnitee shall execute all papers reasonably required and take all action reasonably necessary to secure such subrogation rights, including execution of such documents as are necessary to enable the Corporation to bring suit to enforce evidence such rights in accordance with (all of Indemnitee’s reasonable Expenses related thereto to be reimbursed by or, at the terms option of any such insurance policyIndemnitee, advanced by the Corporation). The Corporation shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) Anything herein or elsewhere to the contrary notwithstanding, the Corporation shall not be liable under this Agreement to make any indemnity payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreementagreement or otherwise.
Appears in 1 contract
Insurance and Subrogation. (a) The Corporation covenants Tenant, at its sole cost and agrees thatexpense, shall carry insurance during the entire Term hereof insuring Tenant, and insuring Landlord, the managing agent for the Real Property and their respective officers, directors, agents, partners and employees, as long their interests may appear, with terms, coverage and in companies reasonably satisfactory to Landlord, and with such increases in limits as Indemnitee Landlord may from time to time request, but initially Tenant shall maintain the following coverages in the following amounts:
(i) Public liability insurance with the broad form comprehensive general liability endorsement, including contractual liability insurance covering Tenant's indemnity obligations hereunder, in an amount not less than $1,000,000.00 combined single limit per occurrence.
(ii) All risk" physical damage insurance including fire, sprinkler leakage, vandalism and extended coverage for the full replacement cost of all additions, improvements and alterations to the Premises (except to the extent the same are part of building standard work performed by Landlord pursuant to the Work Letter, if any, attached hereto) and of all office furniture, trade fixtures, office equipment, merchandise and all other items of Tenant's property on the Premises.
(iii) Business interruption or extra expense insurance with limits not less than those carried by a prudent tenant. Tenant shall, prior to the commencement of the Term and from time to time during the Term, or at any time upon written request from Landlord, furnish to Landlord policies or certificates evidencing the foregoing insurance coverage. Tenant's policies shall state that such insurance coverage may not be reduced, canceled or not renewed without at least thirty (30) days' prior written notice to Landlord and Tenant (unless such cancellation is due to non-payment of premium, and in that case only ten (10) day's prior written notice shall be entitled to indemnity under the terms of this Agreement, including Section 11(g) hereof, the Corporation, subject only to sub-part (b) of this Section 7, shall obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts from established and reputable insurers covering Indemnitee against any liability asserted against or incurred by Indemnitee or on Indemnitee’s behalf in any indemnified capacity whether or not the Corporation would have the power to indemnify Indemnitee against such liability under this Agreement. In all such D&O Insurance policies, Indemnitee shall be named as an insured in a manner that grants Indemnitee the same rights and benefits as are granted to the most favorably insured of the Corporation’s officers or directorssufficient).
(b) Notwithstanding sub-part (a) Tenant shall comply with all applicable laws and ordinances, all orders and decrees of this Section 7court and all requirements of other governmental authority, if the Corporation gives reasonable prior written notice to Indemnitee and shall not directly or indirectly make any use of the termination of D&O Insurance Premises which may thereby be prohibited or be dangerous to person or property or which may jeopardize any insurance coverage, or may increase the Corporation shall be relieved cost of its duty to obtain and maintain D&O Insurance in future periods, if the Corporation in good faith determines that such insurance is not reasonably available in such future periods, or the premium costs for such require additional insurance are disproportionate to the amount of coverage available, or the available coverage is so limited by exclusions that it provides an insufficient benefit, or Indemnitee is covered by similar insurance maintained by a subsidiary of the Corporationcoverage.
(c) If Each of Landlord and Tenant hereby waives any and every claim, including insurer's subrogation claims, for recovery from the Corporation has D&O Insurance in effect at the time it receives a Section 6(a) Notice, the Corporation shall give due other for any and prompt notice of the commencement of such Action, Suit all loss or Proceeding damage to the insurer(s) Building or Premises or to the contents thereof, and including claims for deductible and self-insurance retention amounts, whether such loss or damage is due to the negligence of Landlord or Tenant or its respective officers, directors, agents, employees or invitees of any of them. Furthermore, Landlord and Tenant agree that as respects any rights or claims between them, they shall each look solely to their respective insurance carriers in accordance with the procedures set forth in the applicable policy. The Corporation shall thereafter take all necessary or desirable action to cause each insurer to pay, on behalf of the Indemnitee, all amounts payable as a result of such Action, Suit or Proceeding in accordance with the terms of the applicable policy.
(d) In the event of payments by the Corporation under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any such D&O Insurance policy. The Indemnitee shall execute all papers reasonably required and take all action reasonably necessary to secure such subrogation rights, including execution of such documents as are necessary to enable the Corporation to bring suit to enforce such rights in accordance with the terms of any such insurance policy. The Corporation shall pay physical loss or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogationdamage.
(e) Anything herein or elsewhere to the contrary notwithstanding, the Corporation shall not be liable to make any indemnity payment if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement.
Appears in 1 contract
Samples: Office Lease (Participate Com Inc)
Insurance and Subrogation. (a) The Corporation covenants Tenant shall carry insurance during the entire Term hereof insuring Tenant and agrees thatinsuring Landlord, Building Manager and their respective agents, partners and employees, as long their interests may appear, with terms, coverages and in companies with a rating of A.M. Best "A" or better, and with such increases in limits as Indemnitee Landlord may from time to time reasonably request, but initially Tenant shall maintain the following coverages in the following amounts:
(i) Public liability insurance with the broad form commercial liability endorsement, including contractual liability insurance covering Tenant's indemnity obligations hereunder, in an amount not less than $10,000,000.00 per occurrence.
(ii) All risk" physical damage insurance including fire, sprinkler leakage, vandalism and extended coverage for the full replacement cost of all additions, improvements and alterations to the Premises (except to the extent the same are part of building standard work performed by Landlord pursuant to the Workletter, if any, attached hereto) and of all office furniture, trade fixtures, office equipment, merchandise and all other items of Tenant's property on the Premises; plus valuable papers insurance covering documents and papers of value in Tenant's vaults with limits not less than those customarily carried by prudent tenants in such businesses. Tenant shall, prior to the commencement of the Term and from time to time during the Term, furnish to Landlord policies or certificates (with proof of payment) evidencing the foregoing insurance coverage. Tenant's policies shall state that such insurance coverage may not be reduced or cancelled or be allowed to expire without at least thirty (30) days' prior written notice to Landlord and Tenant (unless such cancellation is due to non-payment of premium, and in that case only ten (10) days' prior written notice shall be entitled to indemnity under the terms of this Agreement, including Section 11(g) hereof, the Corporation, subject only to sub-part (b) of this Section 7, shall obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts from established and reputable insurers covering Indemnitee against any liability asserted against or incurred by Indemnitee or on Indemnitee’s behalf in any indemnified capacity whether or not the Corporation would have the power to indemnify Indemnitee against such liability under this Agreement. In all such D&O Insurance policies, Indemnitee shall be named as an insured in a manner that grants Indemnitee the same rights and benefits as are granted to the most favorably insured of the Corporation’s officers or directorssufficient).
(b) Notwithstanding sub-part (a) Landlord and Tenant agree to have all policies of this Section 7, if physical damage insurance which may be carried by either of them endorsed with a clause providing that any release from liability of or waiver of claim for recovery from the Corporation gives reasonable prior written notice to Indemnitee other party or any of the termination parties named in Section 19(a) above entered into in writing by the insured thereunder prior to any loss or damage shall not affect the validity of D&O Insurance coverage, the Corporation shall be relieved of its duty to obtain and maintain D&O Insurance in future periods, if the Corporation in good faith determines that such insurance is not reasonably available in such future periods, said policy or the premium costs for such insurance are disproportionate to the amount of coverage available, or the available coverage is so limited by exclusions that it provides an insufficient benefit, or Indemnitee is covered by similar insurance maintained by a subsidiary right of the Corporationinsured to recover thereunder. Each such policy shall provide further that the insurer waives all rights of subrogation which such insurer might have against any of the parties named in Section 19(a) above, and Landlord and Tenant shall first seek recovery under any applicable insurance policy before proceeding against the other.
(c) If Landlord shall carry insurance during the Corporation has D&O Insurance entire Term hereof, with commercially reasonable deductible amounts and with insurance companies with a rating of A.M. Best "A" or better, and with such increases in effect at limits as Tenant may from time to time reasonably request, but initially Landlord shall maintain the time it receives following coverages in the following amounts: (i) "all-risk" replacement cost property insurance on the Building against fire and other extended coverage perils (including boiler and machinery and electrical apparatus coverage) in an amount sufficient to prevent Landlord from being deemed a Section 6(a) Notice, the Corporation shall give due and prompt notice co-insurer of the commencement of such Actionrisks insured under the policy, Suit or Proceeding to but in no event less than the insurer(samount, if any, required by the First Mortgagee, (ii) in accordance with the procedures set forth commercial liability insurance, including contractual liability (which also insures Tenant but excluding coverage over liability incurred by Tenant in the applicable policy. The Corporation shall thereafter take all necessary or desirable action to cause each insurer to payoperation of its business), on behalf in an amount not less than $10,000,000.00 per occurrence, and (iii) rent loss insurance covering loss of rents from Tenant under this lease and other tenants under other leases in the Indemnitee, all Building in such amounts payable as a result prudent owner of such Actiona first class office building in the City of Chicago, Suit or Proceeding in accordance with the terms of the applicable policyIllinois, would carry.
(d) In the event of payments by the Corporation under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any such D&O Insurance policy. The Indemnitee shall execute all papers reasonably required and take all action reasonably necessary to secure such subrogation rights, including execution of such documents as are necessary to enable the Corporation to bring suit to enforce such rights in accordance with the terms of any such insurance policy. The Corporation shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) Anything herein or elsewhere to the contrary notwithstanding, the Corporation shall not be liable to make any indemnity payment if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement.
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Samples: Lease (Chicago Title Corp)
Insurance and Subrogation. (a) The Corporation covenants represents that it currently has in effect the following policy or policies of director and agrees thatofficer liability insurance (the “Insurance Policies”) which names or covers Indemnitee as an insured:
(b) So long as Indemnitee shall continue to serve as a director or officer of the Corporation, or shall continue at the request of the Corporation to serve as a director or officer, employee or agent of any Other Enterprise, and thereafter so long as Indemnitee shall be entitled subject to indemnity under any possible claim or is a party or is threatened to be made a party to any Proceeding, by reason of the terms fact that Indemnitee is or was a director or officer of this Agreement, including Section 11(g) hereof, the Corporation, subject only or is or was serving in any of said other capacities at the request of the Corporation, the Corporation shall be required to sub-part (b) maintain the Insurance Policies in effect or to obtain policies of this Section 7, shall obtain and maintain in full force and effect directors’ and officers’ liability insurance (“D&O Insurance”) in reasonable amounts from established and reputable insurers covering with coverage in at least the amount or amounts as prescribed by the Insurance Policies and which provides the Indemnitee against any liability asserted against or incurred by Indemnitee or on Indemnitee’s behalf in any indemnified capacity whether or not the Corporation would have the power to indemnify Indemnitee against such liability under this Agreement. In all such D&O Insurance policies, Indemnitee shall be named as an insured in a manner that grants Indemnitee with substantially the same rights and benefits as the Insurance Policies, and which coverage, rights and benefits shall, in any event, be as favorable to Indemnitee as are granted accorded to the most favorably insured of the Corporation’s officers directors or directors.
officers, as the case may be (b“Comparable D&O Insurance”) Notwithstanding sub-part (a) unless, in the reasonable business judgment of this Section 7, if the Board of Directors of the Corporation gives reasonable prior written notice as it may exist from time to Indemnitee of time, either (i) the termination of premium cost for such Insurance Policies or Comparable D&O Insurance coverage, the Corporation shall be relieved of its duty to obtain and maintain D&O Insurance in future periods, if the Corporation in good faith determines that such insurance is not reasonably available in such future periods, or the premium costs for such insurance are disproportionate to the amount of coverage availableprovided, or (ii) the available coverage provided by such Insurance Policies or Comparable D&O Insurance is so limited by exclusions that it provides an there is insufficient benefitbenefit provided by such director and officer liability insurance; provided, however, that in the event that the Board of Directors makes such a determination, the Corporation shall provide notice to Indemnitee no less than ninety (90) days prior to the lapse or Indemnitee is covered by similar insurance maintained by a subsidiary termination of coverage under the CorporationInsurance Policies or Comparable D&O Insurance.
(c) If If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Corporation has D&O Insurance director and officer liability insurance in effect at the time it receives a Section 6(a) Noticeeffect, the Corporation shall give due and prompt notice of the commencement of such Actionclaim, Suit or and any Proceeding in which such claim is asserted, to the insurer(s) insurers in accordance with the procedures set forth in the applicable policyrespective policies. The Corporation shall thereafter take all necessary or desirable action to cause each insurer such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Action, Suit claim or Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the applicable policyobligations of the Corporation under this Agreement.
(d) In the event of payments any payment by the Corporation under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any such D&O Insurance insurance policy. The Indemnitee , who shall execute all papers reasonably required and take all action reasonably necessary to secure such subrogation rights, including execution of such documents as are necessary to enable the Corporation to bring suit to enforce such rights in accordance with the terms of any such insurance policy. The Corporation shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(e) Anything herein or elsewhere to the contrary notwithstanding, the The Corporation shall not be liable under this Agreement to make any indemnity payment of amounts otherwise indemnifiable hereunder (including, but not limited to, Expenses, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under the Corporation’s Certificate of Incorporation or ByLaws, or any insurance policy, contract, agreementagreement or otherwise.
(f) The Corporation’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Corporation as a director, officer, employee or agent of any Other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such Other Enterprise.
Appears in 1 contract
