ARTICLE 9, OR INCREASE THE AMOUNT OF ANY EXISTING INSURANCE BY SECURING AN
ADDITIONAL POLICY OR ADDITIONAL POLICIES, UNLESS ALL PARTIES HAVING AN INSURABLE
INTEREST IN THE SUBJECT MATTER OF SUCH INSURANCE, INCLUDING LANDLORD AND ALL
FACILITY MORTGAGEES, ARE INCLUDED THEREIN AS ADDITIONAL INSUREDS AND THE LOSS IS
PAYABLE UNDER SUCH INSURANCE IN THE SAME MANNER AS LOSSES ARE PAYABLE UNDER THIS
AGREEMENT. IN THE EVENT TENANT SHALL TAKE OUT ANY SUCH SEPARATE INSURANCE OR
INCREASE ANY OF THE AMOUNTS OF THE THEN EXISTING INSURANCE, TENANT SHALL GIVE
LANDLORD PROMPT NOTICE THEREOF. TENANT SHALL NOT SELF-INSURE (OR PERMIT ANY
PERSON TO SELF-INSURE).
9.5
INDEMNIFICATION OF LANDLORD. NOTWITHSTANDING
THE EXISTENCE OF ANY INSURANCE PROVIDED FOR HEREIN AND WITHOUT REGARD TO THE
POLICY LIMITS OF ANY SUCH INSURANCE, TENANT SHALL PROTECT, INDEMNIFY AND HOLD
HARMLESS LANDLORD FOR, FROM AND AGAINST ALL LIABILITIES, OBLIGATIONS, CLAIMS,
DAMAGES, PENALTIES, CAUSES OF ACTION, COSTS AND REASONABLE EXPENSES (INCLUDING,
WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES), TO THE MAXIMUM EXTENT PERMITTED
BY LAW, IMPOSED UPON OR INCURRED 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, 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, (B) ANY PAST, PRESENT OR FUTURE USE,
MISUSE, NON-USE, CONDITION, MANAGEMENT, MAINTENANCE OR REPAIR BY TENANT, ANY
MANAGER OR ANYONE CLAIMING UNDER ANY OF THEM OR TENANT'S PERSONAL PROPERTY OR
ANY LITIGATION, PROCEEDING OR CLAIM BY GOVERNMENTAL ENTITIES
37
OR OTHER THIRD PARTIES TO WHICH LANDLORD IS MADE A PARTY OR PARTICIPANT RELATING
TO THE 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 (OTHER THAN CONDEMNATION PROCEEDINGS)
TO WHICH LANDLORD IS MADE A PARTY, (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 ARE IN ADDITION TO THE OBLIGATIONS SET FORTH IN
SECTION 4.4 AND 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) SHALL BE PAID DIRECTLY