Insurance Indemnification A. The Contractor shall procure and maintain from the Effective Date or Commencement Date of this Agreement (whichever is earlier) through the conclusion of this Agreement, such insurance policies, including those set forth in Exhibit C, as will protect itself and the City from all claims for bodily injuries, death, or property damage which may arise under this Agreement; whether the act(s) or omission(s) giving rise to the claim were made by the Contractor, any subcontractor, or anyone employed by them directly or indirectly. Prior to commencement of work under this Agreement, Contractor shall provide to the City documentation satisfactory to the City, through City-approved means (currently myCOI), demonstrating it has obtained the policies and endorsements required by Exhibit C. Contractor shall add ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ to its safe sender’s list so that it will receive necessary communication from myCOI. When requested, Contractor shall provide the same documentation for its subcontractor(s) (if any).
B. Any insurance provider of Contractor shall be authorized to do business in the State of Michigan and shall carry and maintain a minimum rating assigned by A.M. Best & Company’s Key Rating Guide of “A-” Overall and a minimum Financial Size Category of “V”. Insurance policies and certificates issued by non- admitted insurance companies are not acceptable unless approved in writing by the City.
C. To the fullest extent permitted by law, Contractor shall indemnify, defend and hold the City, its officers, employees and agents harmless from all suits, claims, judgments and expenses, including attorney's fees, resulting or alleged to result, from any acts or omissions by Contractor or its employees and agents occurring in the performance of or breach in this Agreement, except to the extent that any suit, claim, judgment or expense are finally judicially determined to have resulted from the City’s negligence or willful misconduct or its failure to comply with any of its material obligations set forth in this Agreement.
Indemnification, Exculpation and Insurance (a) Surviving Titanium and the Reorganized Titanium Operating Company and its Subsidiaries shall (and Silver shall cause such entities to) honor and fulfill the obligations of Titanium and its Subsidiaries pursuant to any indemnification or other similar agreements of Titanium, Titanium OP or any of their respective Subsidiaries, in each case as in effect on the date of this Agreement, which agreements shall continue in full force and effect in accordance with their terms. From and after the Effective Time and ending on the sixth anniversary of the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the MBCA, DGCL, DLLCA or DRULPA adopted after the date of this Agreement that increase the amount to which a corporation, limited liability company or limited partnership may indemnify its officers and directors) each of Silver and Reorganized Titanium Operating Company agrees that Reorganized Titanium Operating Company will (and Silver will cause such entity to) indemnify and hold harmless each individual who was or is as of the date of this Agreement, or who becomes prior to the Effective Time, a director, officer or employee of Titanium, Titanium OP or any of their respective Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of Titanium, Titanium OP or any of their respective Subsidiaries as a director, officer or employee of another Person (the “Titanium Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative, to the extent related to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby, including the Transactions), arising out of or pertaining to the fact that Titanium Indemnified Party is or was an officer, director or employee of Titanium, Titanium OP or any of their respective Subsidiaries or is or was serving at the request of Titanium, Titanium OP or any of their respective Subsidiaries as a director, officer or employee of another Person, whether asserted or claimed prior to, at or after the Effective Time. In the event of any such Action, (x) each Titanium Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from Reorganized Titanium Operating Company within ten Business Days of receipt by Reorganized Titanium Operating Company from such Titanium Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to indemnification and (y) Silver, Silver OP, Surviving Titanium, Surviving Titanium OP, the Reorganized Titanium Operating Company and their respective Subsidiaries shall cooperate in the defense of any such matter. Without limiting the foregoing, to the extent the Titanium Charter, Titanium By-laws, Titanium OP Agreement, the Organizational Documents of their respective Subsidiaries, and any indemnification or other similar agreements of Titanium, Titanium OP or any of their respective Subsidiaries, in each case as in effect on the date of this Agreement, provide more favorable terms regarding indemnification, advancement of expenses and exculpation to current or former directors, officers or employees of Titanium, Titanium OP and their respective Subsidiaries, each of Surviving Titanium and Reorganized Titanium Operating Company hereby agrees to (and Silver agrees to cause such entity to) effectuate any such favorable provisions in accordance with their terms.
(b) For six (6) years following the Effective Time, Surviving Titanium and the Reorganized Titanium Operating Company shall maintain in effect the provisions in the Surviving Titanium Limited Liability Company Agreement and the Reorganized Titanium Operating Company Operating Agreement and in their Subsidiaries’ respective Organizational Documents to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Titanium Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same (or more favorable to the Titanium Indemnified Parties) basis as set forth in Titanium Charter, Titanium By-laws, Titanium OP Agreement or their respective Subsidiaries’ respective Organizational Documents in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of Titanium Indemnified Parties’ indemnification rights thereunder.
(c) At or prior to the Closing Date, Titanium and/or Titanium OP shall purchase a “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for Titanium, Titanium OP and their respective current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by Titanium and/or Titanium OP, such tail to provide coverage for a period of six (6) years from and after the Effective Time in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by Titanium or Titanium OP with respect to claims arising from facts or events that occurred on or before the Effective Time, so long as the aggregate cost for each year of such “tail” policy does not exceed 300% of the aggregate annual premium most recently paid by Titanium or Titanium OP prior to the date of this Agreement (the “Maximum Amount”). To the extent such a “tail” policy is not obtained, for a period of six (6) years from and after the Effective Time, Surviving Titanium, Surviving Titanium OP and the Reorganized Titanium Operating Company each shall (and Silver shall cause such entities to) either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by Titanium, Titanium OP or their respective Subsidiaries or provide substitute policies for Titanium, Titanium OP and their respective current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by Titanium or Titanium OP in either case, of not less than the existing coverage and having other terms not less favorable to the insured persons in the aggregate than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by Titanium or Titanium OP with respect to claims arising from facts or events that occurred on or before the Effective Time (with insurance carriers having at least an “A” rating by A.M. Best with respect to directors’ and officers’ liability insurance and fiduciary liability insurance), except that in no event shall Surviving Titanium, Surviving Titanium OP or the Reorganized Titanium Operating Company be required to pay with respect to such insurance policies in respect of any one policy year more than the Maximum Amount, and if Surviving Titanium, Surviving Titanium OP and the Reorganized Titanium Operating Company are unable to (and Silver is unable to cause such entities to) obtain the insurance required by this Section 6.03 it shall obtain as much comparable insurance as possible for the years within such six-year period for an annual premium equal to the Maximum Amount, in respect of each policy year within such period. Surviving Titanium, Surviving Titanium OP and the Reorganized Titanium Operating Company each shall (and Silver shall cause such entities to) maintain such policies in full force and effect, and continue to honor the obligations thereunder. To the extent premiums for any such insurance under this Section 6.03 are paid for by Silver, Silver OP or Surviving Titanium, such payor shall be reimbursed as incurred by Reorganized Titanium Operating Company.
(d) In the event that Silver, Silver OP, Surviving Titanium, Surviving Titanium OP, the Reorganized Titanium Operating Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Silver, Silver OP, Surviving Titanium, Surviving Titanium OP or the Reorganized Titanium Operating Company, as applicable, shall (and Silver shall cause such entities to) cause proper provision to be made so that the successors and assigns of Silver, Silver OP, Surviving Titanium, Surviving Titanium OP or the Reorganized Titanium Operating Company, as applicable, assume the obligations set forth in this Section 6.03.
(e) The provisions of this Section 6.03 (i) shall survive consummation of the Transactions, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured Persons (including Titanium Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Insurance and Indemnification (a) The Company hereby acknowledges its indemnification obligations to the Seller under the Company’s Certificate of Incorporation or Bylaws and that certain Indemnity Agreement, dated as of January 1, 2000, by and between the Company and the Seller, whereby the Company has agreed to indemnify the Seller in his capacity as a director of the Company. The Company hereby confirms its obligations to the Seller under such instruments and its intention to honor such obligations.
(b) For ten years from and after the Closing Date, the Company shall maintain in effect the current provisions regarding limitation of liability of directors and indemnification of, and advancement of expenses to, directors as contained in its Certificate of Incorporation and Bylaws as of the Closing Date; provided, however, that the Company may amend such provisions so long as any such amendment does not materially and adversely affect the Seller.
(c) For ten years from and after the Closing Date, the Company shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by the Company at not less than current levels with respect to acts or omissions occurring on or prior to the Seller’s resignation as a director of the Company (provided that the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured, so long as the substitute insurer or carrier has a Best’s rating that is no lower than AX).
(d) The Company shall indemnify, hold harmless and defend the Seller against any and all claims, losses, liabilities, damages, judgments, fines (including reasonable attorneys’ fees and expenses) incurred by Seller relating to or arising out of any claim, demand, asserted liability, suit or proceeding of any kind (any, a “Claim”) with respect to this Agreement or the Irrevocable Proxy or the transactions contemplated hereby and thereby, including without limitation the Company’s repurchase of the Shares and the Options. This indemnification obligation is separate and apart from the obligations referred to in the above paragraphs of this Section 15 and shall apply to any and all such Claims whether or not arising out of, based upon or related to the Seller’s service as a director of the Company. The Company may elect to compromise or defend, at its own expense and by its own counsel, any Claim if (i) the Company expressly agrees in writing to the Seller that, as between the two, the Company is solely obligated to satisfy and discharge the Claim, (ii) the Company makes reasonably adequate provision to satisfy the Seller of the Company’s ability to satisfy and discharge the claim, and (iii) the Claim involves solely monetary damages (collectively, the “Litigation Conditions”); provided, however, that if the parties in any action shall include both the Company and the Seller, and the Seller shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to the Seller, the Seller shall have the right to select separate counsel to participate in the defense of such action on his behalf, at the expense of the Company; and provided further, however, that the Company shall forfeit the right to control the defense or settlement of any such claim if, at any time after assuming the defense or settlement thereof, the Company and the Claim no longer satisfy the Litigation Conditions. Subject to the foregoing, if the Company elects to compromise or defend such Claim, it shall within 30 days (or sooner, if the nature of the Claim so requires) notify the Seller of its intent to do so, and the Seller shall reasonably cooperate, at the expense of the Company, in the compromise of, or defense against, such Claim (it being understood the Seller shall be entitled to participate in any such defense at its own expense). If the Company elects not to compromise or defend the Claim, fails to notify the Seller of its election as herein provided, or fails to satisfy the Litigation Conditions, the Seller may pay, compromise or defend such Claim at the expense of the Company (it being understood the Company may participate, at its own expense, in the defense of such Claim). If the Company chooses to defend any Claim, the Seller shall, subject to receipt of a reasonable confidentiality agreement, make available to the Company any books, records or other documents within his control, for which the Company shall be obliged to reimburse the Seller the reasonable out-of-pocket expenses of making them available. The Company will be under no obligation to indemnify, defend or hold harmless the Seller for any Claim by the Company that the Seller has breached this Agreement or the Irrevocable Proxy.
Indemnification and Insurance 9.1.1 The Company shall to the fullest extent permitted under applicable Law or its Organizational Documents, indemnify and hold harmless, each present and former director, officer or employee of the Company (collectively, the “Company Indemnified Parties”) against any costs or expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any Proceeding (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Closing Date (“Company Damages”), to the same extent as provided in the Company’s Organizational Documents or any applicable contract or agreement as in effect on the date hereof, in each case for a period of two years after the Closing Date. In the event of any such Proceeding (whether arising before or after the Closing Date), (i) any counsel retained by the Company Indemnified Parties for any period after the Closing Date shall be reasonably satisfactory to the Company, (ii) after the Closing Date, the Company shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received, provided that the Company Indemnified Parties shall be required to reimburse the Company for such payments in the circumstances and to the extent required by the Company’s Organizational Documents, any applicable contract or agreement or applicable Law, and (iii) the Company will cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld); and provided, further, that, in the event that any claim or claims for indemnification are asserted or made within such one (1) year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims. The Company Indemnified Parties as a group may retain only one law firm to represent them in each applicable jurisdiction with respect to any single action unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Company Indemnified Parties, in which case each Company Indemnified Person with respect to whom such a conflict exists (or group of such Company Indemnified Persons who among them have no such conflict) may retain one separate law firm in each applicable jurisdiction.
9.1.2 This Section 9.1 shall survive the consummation of the transactions contemplated by this Agreement upon execution, is intended to benefit the Company Indemnified Parties, shall be binding on all successors and assigns of he Company and shall be enforceable by the Company Indemnified Parties.
