NON-PAYMENT OF PREMIUM, IN WHICH CASE TEN
(10) DAYS WRITTEN NOTICE SHALL BE GIVEN).
ALL PUBLIC LIABILITY, PROPERTY DAMAGE
AND OTHER CASUALTY POLICIES SHALL BE WRITTEN AS PRIMARY POLICIES, NOT
CONTRIBUTING WITH AND NOT IN EXCESS OF COVERAGE WHICH LANDLORD MAY CARRY.
TENANT AGREES THAT IF TENANT DOES NOT TAKE OUT AND MAINTAIN THE INSURANCE
REQUIRED UNDER THIS SECTION 4.3.2, THEN TENANT SHALL LOSE ANY RIGHT TO ACCESS
THE PREMISES PURSUANT TO THIS LEASE PRIOR TO THE TERM COMMENCEMENT DATE.
12
NOTWITHSTANDING ANY PROVISION OF THIS LEASE TO THE CONTRARY,
TENANT'S OBLIGATION TO CARRY THE INSURANCE DESCRIBED IN THIS SECTION MAY BE
BROUGHT WITHIN THE COVERAGE OF A SO-CALLED BLANKET POLICY OR POLICIES OF
INSURANCE CARRIED AND MAINTAINED BY THE TENANT, PROVIDED THAT (I) LANDLORD WILL
BE AN ADDITIONAL INSURED THEREUNDER AS ITS INTERESTS MAY APPEAR, (II) THE
COVERAGE AFFORDED LANDLORD WILL NOT BE REDUCED OR DIMINISHED BY REASON OF THE
USE OF SUCH BLANKET POLICY OF INSURANCE, AND (III) THE REQUIREMENTS SET FORTH
HEREIN ARE OTHERWISE SATISFIED.
TENANT AGREES TO PERMIT LANDLORD AT ALL
REASONABLE TIMES TO INSPECT THE POLICIES OF INSURANCE OF TENANT COVERING THE
PREMISES FOR POLICIES WHICH ARE NOT REQUIRED TO BE DELIVERED TO LANDLORD.
4.3.3
TENANT HEREBY AGREES TO INDEMNIFY, DEFEND (WITH ATTORNEYS APPROVED
BY LANDLORD), PROTECT, AND HOLD LANDLORD AND LANDLORD'S EMPLOYEES, DIRECTORS AND
OFFICERS HARMLESS FROM, ANY AND ALL DEMANDS, CLAIMS, LIABILITIES, COSTS,
EXPENSES, SUITS, INVESTIGATIONS, PROCEEDINGS, LOSSES, ACTIONS, CAUSES OF ACTION,
DAMAGES AND JUDGMENTS (AND ALL REASONABLE EXPENSES INCLUDING, WITHOUT
LIMITATION, REASONABLE ATTORNEYS' FEES, CHARGES AND DISBURSEMENTS INCURRED IN
INVESTIGATING OR RESISTING THE SAME) (COLLECTIVELY, "CLAIMS") TO THE EXTENT
(A) RELATING TO ACTS, OMISSIONS OR CIRCUMSTANCES ARISING FROM AN EARLY ENTRY
EVENT, AND (B) CAUSED BY OR ARISING OUT OF (I) THE ACTS OR OMISSIONS OF TENANT,
ITS EMPLOYEES, AGENTS, DIRECTORS, OFFICERS, MANAGERS, MEMBERS, PARTNERS,
AFFILIATES, INDEPENDENT CONTRACTORS, CONSULTANTS, PROPERTY MANAGERS OR INVITEES
(COLLECTIVELY, "TENANT'S AGENTS"), INCLUDING WITHOUT LIMITATION, ANY LIABILITY
FOR INJURY TO THE PERSON OR PROPERTY OF TENANT OR TENANT'S AGENTS, OR (II) A
BREACH OR DEFAULT BY TENANT IN THE PERFORMANCE OF ANY OF ITS OBLIGATIONS UNDER
THIS LEASE; BUT IN EACH CASE EXCEPTING ANY SUCH CLAIMS TO THE EXTENT RESULTING
FROM THE WILLFUL BREACH OF THE LEASE BY LANDLORD OR THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF LANDLORD.
NOTWITHSTANDING THE FOREGOING, TENANT'S
OBLIGATIONS UNDER THIS SECTION 4.3.3 SHALL BE GOVERNED BY THE PROVISIONS SET
FORTH IN SECTIONS 9.4 AND 9.5 HEREOF AND ARE SUBJECT TO THE 89% CAP UNDER
SECTION 3.1.2 HEREOF.
TENANT'S OBLIGATIONS UNDER THIS SECTION 4.3.3 SHALL
SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS LEASE WITH RESPECT TO ANY
SUCH CLAIMS OR LIABILITY ARISING IN CONNECTION WITH ANY EVENT, CONDITION OR
CIRCUMSTANCE OCCURRING, ARISING OR EXISTING PRIOR TO SUCH EXPIRATION OR EARLIER
TERMINATION.
ARTICLE 5
USE
5.1
Permitted Use of Premises.
The Premises shall be used and
occupied by Tenant solely for office, research and development purposes in
conformity with Applicable Laws and the provisions of this Lease (the "Permitted
Use").
The Premises