Carbonite 2011 Annual Report Download - page 136

16.2 Landlord’s Liability . In consideration of the benefits accruing under this Lease to Tenant, and notwithstanding anything to the contrary
contained in the Lease Documents, it is expressly understood and agreed by and between the parties to this Lease that:
(i) the collective recourse of Tenant and its successors and assigns against Landlord (and the liability of Landlord to Tenant, its
successors and assigns) with respect to (a) any actual or alleged breach or breaches by or on the part of Landlord of any of Landlord’s Lease
Undertakings, and (b) any other matter relating to Tenant’s occupancy of the Tenant Space, shall be limited, in the aggregate, solely to an amount equal
to Landlord’s Liability Cap, provided that the limitations on Landlord’s liability set forth in this Section 16.2(i) shall not apply to: (x) claims based upon
claims of third parties for injuries to persons or damages to physical property to the extent based upon the negligence or willful misconduct of the
Landlord Parties, or (y) any Outage Credits, Security/Access Credits, Full SOC 2 Credits, or Partial SOC2 Credits to which Tenant is entitled pursuant
to Exhibit “F” ;
(ii) other than Landlord’s Liability Cap, Tenant shall have no recourse against any other assets of Landlord and in the uncollected
rent and proceeds of the Building;
(iii) Tenant shall have no recourse against any assets of any member of the Landlord Group other than Landlord;
(iv) except to the extent of Landlord’
s Liability Cap, no personal liability or personal responsibility of any sort with respect to any of
Landlord’s Lease Undertakings, or any alleged breach thereof, is assumed by, or shall at any time be asserted or enforceable against, Landlord; and
(v) no personal liability or personal responsibility of any sort with respect to any of Landlord’s Lease Undertakings, or any alleged
breach thereof, is assumed by, or shall at any time be asserted or enforceable against, any member of the Landlord Group other than Landlord.
16.3 Transfer of Landlord’s Interest . Landlord (and each of Landlord’s successors-in-interest) shall have the right, from time to time, to assign
its interest and obligations, in writing and/or by operation of law, in and under this Lease to any third party to whom Landlord conveys its interest in the
Property. Once and if Landlord (and/or any successor to Landlord) shall convey its interest in the Property to a third party, (a) Landlord (and each such
successor) shall be fully released from all of the obligations and liabilities of Landlord under the Lease Documents accruing on or after the date of such
transfer of Landlord’s interest in the Property to such third party, and (b) Tenant agrees to look solely to the successor-in-interest of Landlord for all
such obligations and liabilities accruing on or after the date of such transfer. If any security has been given by Tenant to secure the faithful performance
of any of the covenants of this Lease, Landlord shall transfer or deliver said security, as such, to Landlord’
s successor in interest and thereupon Landlord
shall be discharged from any further liability with regard to said security.
16.3.1 Status as a Real Estate Investment Trust . Landlord shall have the right, from time to time, to assign part of its interest and
obligations in and under this Lease to a wholly owned subsidiary of Landlord (or a wholly owned subsidiary of Landlord’s parent company), if and to
the extent that Landlord determines such partial transfer is necessary or advisable in connection with the status of Landlord, or any other member of the
Landlord Group, as a real estate investment trust.
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