BY OR ASSERTED AGAINST LANDLORD BY REASON OF THE FOLLOWING,
EXCEPT TO THE EXTENT CAUSED BY LANDLORD'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT:
(A) ANY ACCIDENT OR INJURY TO, OR DEATH OF, PERSONS OR LOSS OF OR
DAMAGE TO PROPERTY OCCURRING ON OR ABOUT ANY PROPERTY OR PORTION THEREOF OR
ADJOINING SIDEWALKS OR RIGHTS OF WAY DURING THE TERM, (B) ANY PAST, PRESENT OR
FUTURE CONDITION OR USE, MISUSE, NON-USE, MANAGEMENT, MAINTENANCE OR REPAIR BY
TENANT OR ANYONE CLAIMING UNDER ANY OF THEM, OF ANY PROPERTY OR TENANT'S
PERSONAL PROPERTY, OR ANY LITIGATION, PROCEEDING OR CLAIM BY GOVERNMENTAL
ENTITIES (OTHER THAN CONDEMNATION
39
PROCEEDINGS) OR OTHER THIRD PARTIES TO WHICH LANDLORD IS MADE A PARTY OR
PARTICIPANT RELATING TO ANY PROPERTY OR PORTION THEREOF OR TENANT'S PERSONAL
PROPERTY OR SUCH USE, MISUSE, NON-USE, CONDITION, MANAGEMENT, MAINTENANCE, OR
REPAIR THEREOF, INCLUDING FAILURE TO PERFORM OBLIGATIONS UNDER THIS AGREEMENT,
TO WHICH LANDLORD IS MADE A PARTY DURING THE TERM, (C) ANY IMPOSITIONS THAT ARE
THE OBLIGATIONS OF TENANT TO PAY PURSUANT TO THE APPLICABLE PROVISIONS OF THIS
AGREEMENT, AND (D) ANY FAILURE ON THE PART OF TENANT OR ANYONE CLAIMING UNDER
TENANT TO PERFORM OR COMPLY WITH ANY OF THE TERMS OF THIS AGREEMENT.
TENANT, AT
ITS EXPENSE, SHALL CONTEST, RESIST AND DEFEND ANY SUCH CLAIM, ACTION OR
PROCEEDING ASSERTED OR INSTITUTED AGAINST LANDLORD (AND SHALL NOT BE RESPONSIBLE
FOR ANY DUPLICATIVE ATTORNEYS' FEES INCURRED BY LANDLORD) OR MAY COMPROMISE OR
OTHERWISE DISPOSE OF THE SAME, WITH LANDLORD'S PRIOR WRITTEN CONSENT (WHICH
CONSENT MAY NOT BE UNREASONABLY WITHHELD, DELAYED OR CONDITIONED).
THE
OBLIGATIONS OF TENANT UNDER THIS SECTION 9.5 SHALL SURVIVE THE TERMINATION OF
THIS AGREEMENT.
ARTICLE 10
CASUALTY
10.1
INSURANCE PROCEEDS.
EXCEPT AS PROVIDED IN THE LAST CLAUSE OF THIS
SENTENCE, ALL PROCEEDS PAYABLE BY REASON OF ANY LOSS OR DAMAGE TO ANY PROPERTY,
OR ANY PORTION THEREOF, AND INSURED UNDER ANY POLICY OF INSURANCE REQUIRED BY
ARTICLE 9 (OTHER THAN THE PROCEEDS OF ANY BUSINESS INTERRUPTION INSURANCE OR
INSURANCE PROCEEDS FOR TENANT'S PERSONAL PROPERTY) SHALL BE PAID DIRECTLY TO
LANDLORD (SUBJECT TO THE PROVISIONS OF SECTION 10.2) AND ALL LOSS ADJUSTMENTS
WITH RESPECT TO LOSSES PAYABLE TO LANDLORD SHALL REQUIRE THE PRIOR WRITTEN
CONSENT OF LANDLORD, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD, DELAYED
OR CONDITIONED; PROVIDED, HOWEVER, THAT, SO LONG AS NO EVENT OF DEFAULT SHALL
HAVE OCCURRED AND BE CONTINUING, ALL SUCH PROCEEDS LESS THAN OR EQUAL TO TWO
HUNDRED FIFTY THOUSAND DOLLARS ($250,000) SHALL BE PAID DIRECTLY TO TENANT AND
SUCH LOSSES MAY BE ADJUSTED WITHOUT LANDLORD'S CONSENT.
IF TENANT IS REQUIRED
TO RECONSTRUCT OR REPAIR ANY PROPERTY AS PROVIDED HEREIN, SUCH PROCEEDS SHALL BE
PAID OUT BY LANDLORD FROM TIME TO TIME FOR THE REASONABLE COSTS OF
RECONSTRUCTION OR REPAIR OF SUCH PROPERTY NECESSITATED BY SUCH DAMAGE OR
DESTRUCTION, SUBJECT TO AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
10.2.4.
ANY EXCESS PROCEEDS OF INSURANCE REMAINING AFTER THE COMPLETION OF THE
RESTORATION SHALL BE PAID TO TENANT.
IN THE EVENT THAT THE PROVISIONS OF
SECTION 10.2.1