WILLFUL MISCONDUCT OF TENANT OR OF
ANY PERSON CLAIMING BY, THROUGH OR UNDER TENANT, OR OF THE CONTRACTORS, AGENTS,
EMPLOYEES OR LICENSEES OF TENANT OR ANY SUCH PERSON, IN, ON OR ABOUT THE
PREMISES, BUILDING AND REAL PROPERTY; PROVIDED, HOWEVER, SUCH INDEMNITY SHALL
NOT INCLUDE ANY LOST PROFIT, LOSS OF BUSINESS OR OTHER CONSEQUENTIAL DAMAGES.
35
10.1.2
NOTWITHSTANDING THE PROVISIONS OF SECTION 10.1.1 ABOVE TO THE
CONTRARY, THE ASSUMPTION OF RISK AND RELEASE BY TENANT SET FORTH IN
SECTIONS 10.1.1 (I) AND (II) ABOVE, AND TENANT'S INDEMNITY OF LANDLORD IN
SECTION 10.1.1 (III) ABOVE, SHALL NOT APPLY TO:
(I) ANY CLAIMS TO THE EXTENT
RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD OR THE
LANDLORD PARTIES AND NOT INSURED OR REQUIRED TO BE INSURED BY TENANT UNDER THIS
LEASE (COLLECTIVELY, THE "EXCLUDED CLAIMS"); OR (II) ANY LOSS OF OR DAMAGE TO
LANDLORD'S PROPERTY TO THE EXTENT LANDLORD HAS WAIVED SUCH LOSS OR DAMAGE
PURSUANT TO SECTION 10.4 BELOW.
IN ADDITION, LANDLORD SHALL INDEMNIFY, DEFEND,
PROTECT AND HOLD TENANT HARMLESS FROM ALL SUCH EXCLUDED CLAIMS, EXCEPT FOR
(A) ANY LOSS OR DAMAGE TO TENANT'S PROPERTY TO THE EXTENT TENANT HAS WAIVED SUCH
LOSS OR DAMAGE PURSUANT TO SECTION 10.4 BELOW, AND (B) ANY LOST PROFITS, LOSS OF
BUSINESS OR OTHER CONSEQUENTIAL DAMAGES.
10.1.3
TENANT'S AGREEMENT TO INDEMNIFY LANDLORD AND LANDLORD'S AGREEMENT TO
INDEMNIFY TENANT PURSUANT TO THE FOREGOING PROVISIONS OF THIS SECTION 10.1 ARE
NOT INTENDED TO AND SHALL NOT RELIEVE ANY INSURANCE CARRIER OF ITS OBLIGATIONS
UNDER POLICIES REQUIRED TO BE CARRIED BY TENANT AND LANDLORD PURSUANT TO THE
PROVISIONS OF THIS LEASE, TO THE EXTENT SUCH POLICIES COVER THE MATTERS SUBJECT
TO TENANT'S AND LANDLORD'S INDEMNIFICATION OBLIGATIONS; NOR SHALL THEY SUPERSEDE
ANY INCONSISTENT AGREEMENT OF THE PARTIES SET FORTH IN ANY OTHER PROVISION OF
THIS LEASE.
10.1.4
THE PROVISIONS OF THIS SECTION 10.1 SHALL SURVIVE THE EXPIRATION OR
SOONER TERMINATION OF THIS LEASE.
10.2
LANDLORD'S INSURANCE AND TENANT'S COMPLIANCE WITH INSURANCE
REQUIREMENTS.
LANDLORD SHALL, FROM AND AFTER THE DATE HEREOF UNTIL THE
EXPIRATION OF THE LEASE TERM, MAINTAIN IN EFFECT THE FOLLOWING INSURANCE:
(I) PHYSICAL DAMAGE INSURANCE (INCLUDING A RENTAL LOSS ENDORSEMENT) PROVIDING
COVERAGE IN THE EVENT OF FIRE, VANDALISM, MALICIOUS MISCHIEF AND ALL OTHER RISKS
NORMALLY COVERED UNDER "SPECIAL FORM" POLICIES IN THE GEOGRAPHICAL AREA OF THE
BUILDING, COVERING THE BUILDING (EXCLUDING, AT LANDLORD'S OPTION, THE PROPERTY
REQUIRED TO BE INSURED BY TENANT PURSUANT TO SECTION 10.3 BELOW) IN AN AMOUNT
NOT LESS THAN ONE HUNDRED PERCENT (100%) OF THE FULL REPLACEMENT VALUE (LESS
REASONABLE DEDUCTIBLES) OF THE BUILDING, TOGETHER WITH SUCH OTHER RISKS AS
LANDLORD MAY FROM TIME TO TIME DETERMINE (PROVIDED HOWEVER, THAT LANDLORD SHALL
HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO OBTAIN EARTHQUAKE AND/OR FLOOD
INSURANCE); AND (II) COMMERCIAL GENERAL LIABILITY INSURANCE INCLUDING A
COMMERCIAL BROAD FORM ENDORSEMENT OR THE EQUIVALENT IN THE AMOUNT OF AT LEAST
FIVE MILLION DOLLARS ($5,000,000.00), AGAINST CLAIMS OF BODILY INJURY, PERSONAL
INJURY OR PROPERTY DAMAGE ARISING OUT OF LANDLORD'S OPERATIONS, ASSUMED
LIABILITIES (INCLUDING THE LIABILITIES