Waiver of subrogation

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e. Worker’s compensation & Employers Liability, Commercial General Liability and Auto Liability shall be required of any of Tenant’s consultants, contractors or vendors in the same amounts as set forth above for Tenant. Landlord and its directors, officers, employees and affiliates shall be provided (i) a waiver of subrogation on all such worker’s compensation policies and (ii) additional insured coverage on a primary, non-contributory basis to any commercial general liability policies.

Landlord may reasonably increase and change from time to time the amount and types of insurance coverages required to be maintained by Tenant to bring such types and amounts in line with what is required by similarly situated landlords in similar buildings in the Lexington market. A duly executed certificate or certificates for such policies of insurance in form satisfactory to Landlord (which shall attach, among other things, all required additional insured, primary and non-contributory and waiver of subrogation amendatory endorsements or policy provisions). Satisfactory evidence of the payment of the premium thereon, if requested by Landlord, shall be deposited with Landlord and other parties designated by Landlord at the beginning of the Term and, throughout the Term of the Lease, upon renewals of such policies, not less than thirty (30) days prior to the expiration of the term of such coverage. The failure of Landlord to request or obtain the required documents shall not waive the Tenant’s obligation to provide them. Tenant shall provide Landlord with at least twenty (20) days written notice (or ten (10) days for non-payment of premium) before any policy is canceled. If Tenant fails to comply with any requirements to obtain and maintain insurance under this Lease, Landlord may obtain such insurance on behalf of Tenant and may keep the same in effect, and Tenant shall pay Landlord, as Additional Rent, the premium cost thereof upon demand. The minimum limits of polices of insurance required of Tenant under this Lease shall in no event limit the liability of Tenant under this Lease. The provisions of this Section 7.01 shall survive the expiration of the Term or earlier termination of this Lease.”

Indemnitees and other parties as designated by Landlord shall from time to time, upon Landlord’s request, be covered as additional insureds on a primary, non-contributory basis on Tenant’s CGL and any excess (or umbrella liability) policies. The additional insured coverage in the CGL and excess (or umbrella) policies shall be on forms as broad as ISO forms CG 20 10 07 04 and CG 20 37 07 04 and such coverage may be provided in the form of existing policy provisions or one or more endorsements. If Tenant’s policies provide greater limits than the coverage required by Landlord, then the additional insureds shall be entitled to, or to share in, the full limits of such policies. Any insurance or self-insurance maintained by Landlord, the Indemnitees or any other additional insureds shall be excess of the Tenant’s insurance and shall not contribute with it. Each of Tenant’s policies shall be written on an “occurrence” basis and shall include a waiver of subrogation clause or endorsement in accordance with Section 7.04.

b. Professional liability insurance shall be provided (if Tenant is responsible for the design and before any professional services begin) covering such design services in an amount of the greater of the cost of the design services or $1,000,000 per claim. Such insurance shall not exclude pollution damages (including mold) a result of professional errors or omissions. Such insurance shall include a waiver of subrogation in favor of Landlord any anyone else that Landlord is required to provide a waiver of subrogation to in its contracts for the project.

(e) Waiver of Subrogation. Neither US Mine nor Purebase shall have any claim against the other or the employees, officers, directors, managers, agents, shareholders, partners or other owners of the other for any loss, damage or injury which is covered by insurance carried by either Party and for which recovery from such insurer is made, notwithstanding the negligence of either Party in causing the loss. This waiver and release shall be valid only if the insurance policy in question permits waiver of subrogation or if the insurer agrees in writing that such waiver of subrogation will not affect coverage under said policy. Each Party agrees to use its best efforts to obtain a policy which expressly permits a waiver of subrogation. If any Party cannot obtain such a policy, then such Party agrees to use its best efforts to obtain from its insurer an agreement in writing that such waiver of subrogation will not affect coverage under its policy. The forgoing waiver and release shall not apply, however, to any damage caused by intentionally wrongful actions or omissions.

With respect to all insurance maintained by UDC Ireland or its affiliates in accordance with this Section 11, UDC Ireland will or will cause the insured to (i) provide SCMI with a certificate of such insurance, (ii) notify SCMI of any material changes to the relevant insurance policies, and (iii) include a waiver of subrogation in favor of SCMI and any additional insureds. With respect to all insurance maintained by SCMI or its affiliates in accordance with this Section 11, SCMI will or will cause the insured to (x) provide UDC Ireland with a certificate of such insurance, (y) notify UDC Ireland of any material changes to the relevant insurance policies, and (z) include a waiver of subrogation in favor of UDC Ireland and any additional insureds.

(a) Except in an instance of determination of Landlord’s sole negligence as provided below, Tenant shall indemnify, hold harmless, and defend Landlord against all claims, losses or liabilities for injury or death to any person or for damage to or loss of use of any property, including the property of Landlord to the extent not covered by insurance carried or maintained by Landlord as required hereunder (collectively, “Claims”) arising out of any occurrence in, on or about the Complex, Building or Demised Premises (including the coming and going of employees and/or invitees of Tenant and including if occurring in public or common areas of the Complex, Building or Demised Premises), if caused or contributed to by Tenant or Landlord or the officers, directors, managers, employees, and invitees or contractors of either, or if arising by reason of or relating to any condition respecting the use of the Complex, Building or Demised Premises, or the breach of any of Tenant’s obligations under this Lease. It is the intent of the parties hereto that the indemnity and defense obligations contained in this Paragraph shall not be limited or barred by reason of, and shall include all Claims resulting from, the negligence (whether alleged to be sole or contributory) on the part of Landlord or Landlord's officers, directors, managers, employees, and invitees or contractors, except as may be expressly provided herein to the contrary. Such indemnification shall include and apply to reasonable attorneys' fees, investigation costs, and other reasonable costs actually incurred by Landlord. Tenant shall further indemnify, defend and hold harmless Landlord from and against any and all Claims arising from any breach or default in the performance of any obligation on Tenant's part to be performed under the terms of this Lease. This Lease is made on the express condition that Landlord shall not be liable for, or suffer loss by reason of, injury to person or property, from whatever cause, in any way connected with the condition, use, occupational safety or occupancy of the Complex, Building or Demised Premises specifically including, without limitation, any liability for injury to the person or property of Tenant or Tenant's agents, except as may be expressly provided in subparagraph (b) below or unless determined by a final judgment or final arbitration order to be the result of Landlord’s sole negligence. Nothing in this Section 11.3 shall be construed to invalidate or limit the waiver of subrogation and release and waiver of Section 11.2 herein. The provisions of this Section 11.3 are subject to the obligation of Landlord to insure against risk of property damage to the Building and loss of income and nothing herein shall be construed to shift to Tenant liability for any risk required to be or actually insured against, other than to the extent of all or part of the deductible portion of any claim as otherwise provided in this Lease. The provisions of this Section shall survive the expiration or termination of the Lease with respect to any damage, injury, death, breach or default occurring prior to such expiration or termination.

(b) Landlord shall indemnify, hold harmless and defend Tenant from and against any and all claims, losses or liabilities for injury or death to any person or for damage to or loss of use of use of any property incurred by reason of or arising out of any occurrence in, on or about the Complex, Building or Demised Premises, to the extent that such injury or damage shall be caused by or arise solely from the grossly negligent act or omission or solely from the willful misconduct of Landlord, its officers, directors, managers, employees or contractors. Such indemnification shall include and apply to reasonable attorneys' fees, investigation costs, and other reasonable costs actually incurred by Tenant. Notwithstanding the foregoing, Landlord shall not be required to indemnify Tenant with regard to any condition or defect on the Complex, Demised Premises, or common area of the Building, including, without limitation, the drives and parking areas, unless Tenant shall have given Landlord written notice of the defect or condition and Landlord has had a reasonable opportunity after receipt of such notice to repair or otherwise attend to such defect or condition. Nothing in this subparagraph shall be construed to invalidate or limit the waiver of subrogation and release and waiver of Section 11.2. The provisions of this Section 11.3 are subject to the obligation of Tenant to insure against risk of property damage and nothing herein shall be construed to shift to Landlord liability for any risk required to be or actually insured against. The provisions of this Section shall survive the expiration or termination of the Lease with respect to any damage, injury, death, breach or default occurring prior to such expiration or termination.

Section 11.2 Waiver of Subrogation; Release. All commercial property and commercial liability insurance obtained by Landlord and Tenant shall permit waiver of claims or include a waiver of subrogation by the insurer(s) of all rights based upon an agreement from its insured, against Landlord or Tenant, their officers, directors, shareholders, members, managers and employees, in connection with any loss or damage thereby insured against. For purposes of the Lease, the term “insured against” includes the assumption of risk by deductible, self-insurance, self-insured retention, underinsurance, failure to insure or otherwise and failure to adequately or sufficiently insure against risks, whether known or unknown, or ordinary or extraordinary. Notwithstanding anything to the contrary contained herein, Tenant hereby releases and waives any claims against Landlord, and its officers, directors, shareholders, members, managers and employees, for any loss or damage insured against or required to be insured against hereunder, regardless of whether the negligence or fault of Landlord (or its officers, directors, shareholders, members, managers and employees) contributed to the cause of such loss. The failure of a party to insure or adequately or sufficiently insure its property shall not void this release and waiver. Landlord hereby releases and waives any claims against Tenant, and its officers, directors, shareholders, members, managers and employees for any loss or damage insured against or required to be insured against hereunder to the extent insurance proceeds are received therefor, regardless of whether the negligence or fault of Tenant (or its officers, directors, shareholders, members, managers and employees) caused such loss; however, Landlord's release and waiver shall not apply to (i) any deductible amounts up to $25,000.00 maintained by Landlord under its insurance policy(ies) or (ii) any loss or portion thereof as to which Landlord’s insurance is voided or not available due to any act or omission to Tenant or its officers, directors, shareholders, members, managers, employees, agents, contractors or invitees.

The insurance will include a clause stipulating a waiver of subrogation rights towards lessees and/or occupants in the Building of the Leased Property, and expressly towards the Lessee and/or its employees and managers, including employees of manpower companies who are hired by the Lessee through invoices, and corporate officers or companies under their control, who are hired by the Lessee through invoices, provided that the foregoing regarding the waiver of subrogation rights will not apply towards any person who has caused malicious damages.

The insurance policies specified in section 16.1 and 16.2 above will include an express clause stipulating that the insurers waive their subrogation rights towards the Lessor and/or the Management Company and/or their employees and managers, including employees of manpower companies who are hired through invoices by the Lessor and/or the Management Company, as well as corporate officers or companies under their control who are hired through invoices, and also towards the other lessees and/or occupants of areas in the Building and/or their employees and managers, whose insurance policies include a waiver clause regarding subrogation rights towards the Lessee, provided that the waiver of subrogation rights will not apply towards any person who has caused malicious damages.

(a) Release. All of Tenant’s personal property shall be and remain at Tenant’s sole risk. Landlord shall not be liable to Tenant or to any other person for, and Tenant hereby releases Landlord from (a) any and all liability for theft or damage to Tenant’s personal property, and (b) any and all liability for any injury to Tenant or its employees, agents, contractors, guests and invitees in or about the Premises, except to the extent caused directly by the negligence or willful misconduct of Landlord, its agents, employees or contractors. Nothing contained in this section limit (or be deemed to limit) the waiver of subrogation contained below. This section survive the expiration or earlier termination of this Lease.

or incurred by a third party to the extent (a) arising out of or relating to any act, omission, negligence, or willful misconduct of Tenant or Tenant’s agents, employees, contractors, customers or invitees in or about the Premises, (b) arising out of or relating to any of Tenant’s personal property, or (c) arising out of any other act or occurrence within the Premises, in all such cases except to the extent caused directly by the negligence or willful misconduct of Landlord, its agents, employees or contractors. Nothing contained in this section shall limit (or be deemed to limit) the waiver of subrogation contained below. This section shall survive the expiration or earlier termination of this Lease. In the event of any conflict between this section and the waiver of subrogation section below, the waiver of subrogation section shall control.

“11. Insurance. Tenant, at its sole cost and expense, shall maintain during the Term the following insurance: (1) commercial general liability insurance applicable to the Premises and its appurtenances providing, on an occurrence basis, a minimum combined single limit of $1,000,000 primary per occurrence and $2,000,000 annual aggregate; and in the event property of Tenant’s invitees or customers are kept in, or about the, Premises, Tenant shall maintain warehouser’s legal liability or bailee customers insurance for the full value of the property of such invitees or customers as determined by the warehouse contract between Tenant and its customer; (2) special cause of loss form property insurance covering the full replacement cost of all property and improvements installed or placed in the Premises by Tenant, and shall include coverage for damage or other loss caused by fire or other peril, including vandalism and malicious mischief, theft, water damage of any type, including sprinkler leakage or stoppage of pipes, and explosion, and providing business interruption coverage for a period of one year; (3) workers’ compensation insurance as required by the state in which the Premises is located and in amounts as may be required by applicable statute and shall include a waiver of subrogation in favor of Landlord; (4) employers liability insurance of at least $1,000,000; (5) business automobile liability insurance having a combined single limit of not less than $1,000,000 per occurrence insuring Tenant against liability arising out of the ownership maintenance or use of any owned, hired or nonowned automobiles; and (6) an umbrella liability policy or excess liability policy having a limit of not less than $3,000,000, which policy shall be in “following form” and shall provide that if the underlying aggregate is exhausted, the excess coverage will drop down as primary insurance. Such umbrella liability policy or excess liability policy shall include coverage for additional insureds. Any company writing any of Tenant’s insurance shall have an A.M. Best rating of not less than A-VIII and provide primary coverage to Landlord (any policy issued to Landlord providing duplicate or similar coverage shall be deemed excess over Tenant’s policies). All commercial general liability and, if applicable, warehouser’s legal liability or bailee customers insurance policies shall (a) name Tenant as a named insured and Landlord, its property manager, and other designees of Landlord as the interest of such designees shall appear, as additional insureds; and (b) be primary insurance as to all claims thereunder and provide that any insurance carried by Landlord is excess and non-contributing with Tenant’s insurance. The limits and types of insurance maintained by Tenant shall not limit Tenant’s liability under this Lease. Tenant shall provide Landlord with certificates of such insurance as required under this Lease prior to the Extended Term Commencement Date and thereafter upon renewals at least 15 days prior to the expiration of the insurance coverage. Such certificates shall be on forms currently designated “ACORD 25” (Certificate of Liability Insurance) and “ACORD 28” (Evidence of Commercial Property Insurance) or the equivalent. Attached to the ACORD 25 (or equivalent) there shall be an endorsement naming Landlord, its property manager, and other designees of Landlord as additional insureds, and attached to the ACORD 28 (or equivalent) there shall be an endorsement designating Landlord as a loss payee with respect to Tenant’s property insurance on any Tenant-Insured improvements and trade fixtures, and each such endorsement shall be binding on Tenant’s insurance company. Acceptance by Landlord of delivery of any certificates of insurance does not constitute approval or agreement by Landlord that the insurance requirements of this section have been met, and failure of Landlord to identify a deficiency from evidence provided will not be construed as a waiver of Tenant’s obligation to maintain such insurance. In the event any of the insurance policies required to be carried by Tenant under this Lease shall be cancelled prior to the expiration date of such policy, or if Tenant receives notice of any cancellation of such insurance policies from the insurer prior to the expiration date of such policy, Tenant shall: (i) immediately deliver notice to Landlord that such insurance has been, or is to be, cancelled, (ii) shall promptly replace such insurance policy in order to assure no lapse of coverage shall occur, and (iii) shall deliver to Landlord a certificate of insurance for such policy.”

“12. Waiver of Subrogation. The special cause of loss form property insurance obtained by Landlord and Tenant shall include a waiver of subrogation by the insurers of all rights based upon an assignment from its insured, against Landlord or Tenant, their officers, directors, employees, managers, agents, invitees and contractors, in connection with any loss or damage thereby insured against. Neither party nor its officers, directors, employees, managers, agents, invitees or contractors shall be liable to the other for loss or damage caused by any risk coverable by special cause of loss form property insurance, and each party waives any claims against the other party, and its officers, directors, employees, managers, agents, invitees and contractors for such loss or damage. The failure of a party to insure its property shall not void this waiver. Landlord and its agents, employees and contractors shall not be liable for, and Tenant hereby waives all claims against such parties for losses resulting from an interruption of Tenant’s business, or any person claiming through Tenant, resulting from any accident or occurrence in or upon the Premises or the Project from any cause whatsoever, including without limitation, damage caused in whole or in part, directly or indirectly, by the negligence of Landlord or its agents, employees or contractors, except to the extent such claim arises from the gross negligence or willful misconduct of Landlord and its agents, employees and contractors.”

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