Nautilus 2009 Annual Report Download - page 250

ARTICLE 17
INDEMNIFICATION, WAIVER, RELEASE AND LIMITATION OF LIABILITY
17.1 Tenant’s Indemnity . Except for any injury or damage to persons or property on the Premises that is proximately caused by or
results proximately from the gross negligence or willful misconduct of Landlord, no Landlord Related Parties shall be liable for, and Tenant will
and does hereby indemnify, defend and hold harmless the Landlord Related Parties against and from all liabilities, obligations, suits, damages,
penalties, claims, costs, charges and expenses, including, without limitation, reasonable attorneys’ fees and other professional fees (if and to the
extent permitted by law), that may be imposed upon, incurred by, or asserted against Landlord or any of the Landlord Related Parties and arising,
directly or indirectly, out of or in connection with Tenant’s use, occupancy or maintenance of the Premises including, without limitation, any of
the following: a) any work or thing done in, on or about the Premises or any part thereof by any Tenant Related Party; b) any injury or damage
to any person or property; c) any failure on the part of Tenant to perform or comply with any of the covenants, agreements, terms or conditions
contained in this Lease; and d) any negligent or otherwise tortious act or omission of any Tenant Related Party. At Landlord’s request, Tenant
shall, at Tenant’s expense and by counsel selected by Landlord, defend Landlord in any action or proceeding arising from any such claim or
liability and shall indemnify Landlord against all costs, reasonable attorneys’ fees, expert witness fees, and any other expenses incurred in such
action or proceeding.
17.2 Assumption of Risk . Tenant hereby assumes all risk of damage or injury to any person or property in, on, or about the Premises
from any cause other than the gross negligence or willful misconduct of Landlord. Tenant, to the fullest extent permitted by law and as a material
part of the consideration to Landlord for this Lease, hereby waives and releases all claims against any Landlord Related Parties with respect to
all matters for which Landlord has disclaimed liability pursuant to the provisions of this Lease. Tenant agrees that, unless expressly provided
herein, no Landlord Related Parties will be liable for any loss, injury, death, or damage to persons, property, or Tenant’s business resulting from
any of the following, regardless of whether the same is due to the active or passive negligence of any Landlord Related Party: a) theft; b) Force
Majeure, order of governmental body or authority, fire, explosion, or falling objects; c)
any accident or occurrence in the Premises caused by the
Premises becoming out of repair or by the obstruction, breakage or defect in or failure of equipment, pipes, sprinklers, wiring, plumbing, heating,
ventilation and air-conditioning or lighting fixtures of the Buildings or by broken glass or by the backing up of drains, or by gas, water, steam,
electricity or oil leaking, escaping or flowing into or out of the Premises; d) construction, repair or alteration of the Premises, unless due to
solely to the gross negligence or willful misconduct of Landlord; e) business interruption or loss of use of the Premises; f) any diminution or
shutting off of light, air or view by any structure erected on any land adjacent to the Premises, even if Landlord is the adjacent land owner; g)
mold or indoor air quality; h) any acts or omissions of any occupant of or visitor to the Premises; or i) any cause beyond Landlord’s control. In
no event shall Landlord be liable for indirect, consequential, or punitive damages, including, without limitation, any damages based on lost
profits. None of the foregoing shall be considered a constructive eviction of Tenant, nor shall the same entitle Tenant to an abatement of Rent.
17.3 Waiver of Subrogation . Anything in this Lease to the contrary notwithstanding, Landlord and Tenant each hereby waives any
and all rights of recovery, claim, action or cause of action against the other for any loss or damage to any property of Landlord or Tenant, arising
from any cause that (a) would be insured against under the terms of any property insurance required to be carried hereunder; or (b) is insured
against under the terms of any property insurance actually carried, regardless of whether the same is required hereunder. The foregoing waiver
shall apply regardless of the cause or origin of such claim, including but not limited to the negligence of a party, or such party’s agents, officers,
employees or contractors. The foregoing waiver shall not apply if it would have the effect, but only to the extent of such effect, of invalidating
any insurance coverage of Landlord or Tenant. The foregoing waiver shall also apply to any deductible, as if the same were a part of the
insurance recovery.
17.4 Limitation of Landlord Liability
. Neither Landlord nor any Landlord Related Party shall have any personal liability with respect
to any of the provisions of the Lease, or the Premises. If Landlord is in breach or default with respect to Landlord’s obligations under the Lease,
Tenant shall look solely to the equity interest of Landlord in the Premises for the satisfaction of Tenant’s remedies or judgments. No other real,
personal, or mixed property of any Landlord Related Parties, wherever situated, shall be subject to levy to satisfy such judgment. Upon any
Transfer of Landlord’s interest in this Lease or in the Premises, the transferring Landlord shall have no liability or obligation for matters arising
under this Lease from and after the date of such Transfer.
ARTICLE 18
TENANT’S INSURANCE
18.1 Required Coverage . As provided in Section 2.16 above, Landlord shall be responsible for insuring the Buildings and
appurtenant improvements for the full replacement cost thereof against the risks covered by broad form property insurance. Tenant shall
maintain the following coverages in the following amounts.
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