EGLS » Topics » ARTICLE 10 LIMITATION ON LANDLORDS LIABILITY AND INDEMNITY

This excerpt taken from the EGLS 10-K filed Mar 14, 2005.

ARTICLE 10 LIMITATION ON LANDLORD’S LIABILITY AND INDEMNITY

 

10.1 Limitation on Landlord’s Liability: Landlord shall not be liable to Tenant, nor shall Tenant be entitled to terminate this Lease or to any abatement of rent (except as expressly provided otherwise herein), for any injury to Tenant or Tenant’s Agents, damage to the property of Tenant or Tenant’s Agents, or loss to Tenant’s business resulting from any cause, including without limitation any: (i) failure, interruption or installation of any HVAC or other utility system or service; (ii) failure to furnish or delay in furnishing any utilities or services when such failure or delay is caused by fire or other peril, the elements, labor disturbances of any character, or any other accidents or other conditions beyond the reasonable control of Landlord; (iii) limitation, curtailment, rationing or restriction on the use of water or electricity, gas or any other form of energy or any services or utility serving the Project; (iv) vandalism or forcible entry by unauthorized persons or the criminal act of any person; or (v) penetration of water into or onto any portion of the Premises or the Building through roof leaks or otherwise. Notwithstanding the foregoing but subject to Section 9.3, Landlord shall be liable for any such injury, damage or loss which is proximately caused by Landlord’s willful misconduct or gross negligence of which Landlord has actual notice and a reasonable opportunity to cure but which it fails to so cure. Notwithstanding anything contrary contained in this Lease, if, as a result of the negligence or willful misconduct of Landlord, the Premises should become unsuitable for Tenant’s use as a consequence of the cessation of utilities or other services and the interference with Tenant’s intended use of the Premises continues for a period of seven (7) days or more, Tenant shall be entitled to an equitable abatement of Rent and Additional Rent from the date of the first occurrence through the time in which the Premises are suitable for Tenant’s intended use. If such interruption continues for a period of thirty (30) consecutive days or more, and Landlord has not commenced the work to restore such utilities or services within such 30-day period and thereafter diligently proceed to complete such work, then Tenant shall be entitled to perform such work to restore such interrupted utilities or services and bill Landlord for the reasonable cost thereof. Landlord shall pay for the reasonable cost of such work within thirty (30) days after completion of the work and receipt of written demand for payment from Tenant, together with reasonable supporting documentation for such costs

 

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10.2 Limitation on Tenant’s Recourse: If Landlord is a corporation, limited liability company, trust, partnership, joint venture, unincorporated association or other form of business entity: (i) the obligations of Landlord shall not constitute personal obligations of the officers, directors, trustees, partners, joint venturers, members, owners, stockholders, or other principals or representatives of such business entity; and (ii) Tenant shall not have recourse to the assets of such officers, directors, trustees, partners, joint venturers, members, owners, stockholders, principals or representatives except to the extent of their interest in the Project. Tenant shall have recourse only to the interest of Landlord in the Project for the satisfaction of the obligations of Landlord and shall not have recourse to any other assets of Landlord for the satisfaction of such obligations.

 

10.3 Indemnification of Landlord: Tenant shall hold harmless, indemnify and defend Landlord, and its employees, agents and contractors, with competent counsel reasonably satisfactory to Landlord (and Landlord agrees to accept counsel that any insurer requires be used), from all liability, penalties, losses, damages, costs, expenses, causes of action, claims and/or judgments arising by reason of any death, bodily injury, personal injury or property damage which exceed insurance policy limits maintained by Tenant and Landlord (or required to be maintained under the terms of this Lease) or which are not covered (including, without limitation, the amount of applicable deductibles and exclusions from coverage) by insurance that the Tenant and Landlord are required to obtain under this Lease (or would have been covered had the parties carried the insurance required under this Lease) resulting from (i) any cause or causes whatsoever (other than the willful misconduct or negligence of Landlord of which Landlord has had notice and a reasonable time to cure, but which Landlord has failed to cure) occurring in or resulting from an occurrence in the Premises during the Lease Term, (ii) the negligence or willful misconduct of Tenant or its agents, employees and contractors, wherever the same may occur, or (iii) an Event of Tenant’s Default).

 

Landlord shall hold harmless, indemnify and defend Tenant from all liability, penalties, losses, damages, costs, expenses, causes of action, claims and/or judgments arising by reason of any death, bodily injury, personal injury or property damage which exceed insurance policy limits maintained by Tenant and Landlord (or required to be maintained under the terms of this Lease) or which are not covered (including, without limitation, the amount of applicable deductibles and exclusions from coverage) by insurance that the Tenant and Landlord are required to obtain under this Lease (or would have been covered had the parties carried the insurance required under this Lease) resulting from the negligence or willful misconduct of Landlord or its Agents in connection with the repair and maintenance by Landlord of the Common Areas outside of the Building.

 

The provisions of this Section 10.3 shall survive the expiration or sooner termination of this Lease. Nothing in this Section 10.3 shall impair, alter, limit or otherwise affect any insurance carried by Tenant where Landlord is named (or required to be named under this Lease) as an additional insured or alter the requirement that Tenant’s insurance provide primary coverage.

 

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