EXAMINATION AND
AUDIT, THE PAYMENTS MADE FOR SUCH YEAR BY TENANT EXCEED TENANT'S REQUIRED
PAYMENT ON ACCOUNT THEREOF FOR SUCH CALENDAR YEAR, LANDLORD SHALL PROMPTLY
REFUND SUCH OVERPAYMENT.
IF THE PAYMENTS MADE BY TENANT FOR SUCH YEAR ARE LESS
THAN TENANT'S REQUIRED PAYMENT AS ESTABLISHED BY THE EXAMINATION AND AUDIT,
TENANT SHALL PAY THE DEFICIENCY TO LANDLORD WITHIN THIRTY (30) DAYS AFTER
CONCLUSION OF THE EXAMINATION AND AUDIT AS WELL AS LANDLORD'S ACTUAL
OUT-OF-POCKET COSTS IN CONNECTION WITH SUCH EXAMINATION AND AUDIT.
THE
OBLIGATION TO MAKE SUCH PAYMENT OR REFUND FOR ANY PERIOD WITHIN THE TERM SHALL
SURVIVE EXPIRATION OF THE TERM.
IF TENANT DOES NOT ELECT TO EXERCISE ITS RIGHT
TO EXAMINE AND AUDIT LANDLORD'S BOOKS AND RECORDS FOR ANY CALENDAR YEAR WITHIN
THE TIME PERIOD PROVIDED FOR BY THIS PARAGRAPH, TENANT SHALL HAVE NO FURTHER
RIGHT TO CHALLENGE LANDLORD'S STATEMENT OF OPERATING EXPENSES AND TENANT'S
PROPORTIONATE SHARE OF OPERATING EXPENSES.
Section 3.5
Insurance.
3.5.1
TENANT'S INSURANCE.
TENANT SHALL MAINTAIN IN FULL
FORCE FROM THE COMMENCEMENT DATE AND THEREAFTER THROUGHOUT THE TERM THE
FOLLOWING TYPES OF INSURANCE:
(A)
COMPREHENSIVE COMMERCIAL GENERAL LIABILITY
INSURANCE WITH RESPECT TO THE PREMISES, THEIR USE, OCCUPANCY AND OPERATION,
UNDER WHICH TENANT IS THE NAMED INSURED AND LANDLORD AND ANY MORTGAGEE (AS
DEFINED IN SECTION 8.1 BELOW) (PROVIDED THAT LANDLORD HAS IDENTIFIED SUCH
MORTGAGEE BY NOTICE TO TENANT) ARE NAMED AS ADDITIONAL INSUREDS WITH RESPECT TO
THEIR VICARIOUS LIABILITY FOR COVERED CLAIMS ARISING FROM TENANT'S USE OR
OCCUPANCY OF THE PREMISES.
SUCH COVERAGE SHALL INCLUDE A CONTRACTUAL LIABILITY
ENDORSEMENT, AND SUCH COVERAGE SHALL BE WRITTEN ON AN OCCURRENCE BASIS, WITH A
MINIMUM COMBINED SINGLE LIMIT OF LIABILITY OF NOT LESS THAN TEN MILLION DOLLARS
($10,000,000.00);
11
(B)
COMMERCIAL PROPERTY INSURANCE ON AN "ALL RISK"
BASIS, AND SPECIFICALLY INCLUDING SPRINKLER LEAKAGES, VANDALISM, AND MALICIOUS
MISCHIEF AND PLATE GLASS DAMAGE COVERING ALL THE ITEMS SPECIFIED AS TENANT'S
PROPERTY AND ALL OTHER PROPERTY OF EVERY DESCRIPTION INCLUDING STOCK-IN-TRADE,
FURNITURE, FITTINGS, INSTALLATIONS, ALTERATIONS, ADDITIONS, PARTITIONS AND
FIXTURES OR ANYTHING IN THE NATURE OF A LEASEHOLD IMPROVEMENT MADE OR INSTALLED
BY OR ON BEHALF OF THE TENANT IN AN AMOUNT OF NOT LESS THAN ONE HUNDRED PERCENT
(100%) OF THE FULL REPLACEMENT COST THEREOF AS SHALL FROM TIME TO TIME BE
DETERMINED BY TENANT IN FORM SATISFACTORY TO LANDLORD IN ITS REASONABLE
DISCRETION;
(C)
POLICIES OF INSURANCE AGAINST LOSS OR DAMAGE
ARISING FROM INCIDENTS RELATING TO THE AIR-CONDITIONING AND/OR HEATING SYSTEM,
ELECTRICAL SYSTEMS, FLYWHEELS, STEAM PIPES, STEAM TURBINES, STEAM ENGINES, STEAM
BOILERS, OTHER PRESSURE VESSELS, HIGH PRESSURE PIPING AND MACHINERY, IF ANY,
INSTALLED IN THE PREMISES IN AN AMOUNT SATISFACTORY TO LANDLORD IN ITS
REASONABLE DISCRETION;
(D)
WORKER'S COMPENSATION AND OCCUPATIONAL DISEASE
INSURANCE WITH STATUTORY LIMITS, PROVIDED THAT TENANT MAY SELF-INSURE FOR SUCH
PURPOSES TO THE EXTENT PERMITTED BY LEGAL REQUIREMENTS; AND
(E)
ANY OTHER FORM OR FORMS OF INSURANCE AS LANDLORD
MAY REASONABLY REQUIRE FROM TIME TO TIME (OTHER THAN INSURANCE THAT LANDLORD IS
REQUIRED TO MAINTAIN) IN AMOUNTS AND FOR INSURABLE RISKS (ON COMMERCIALLY
REASONABLE TERMS) AGAINST