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<br />9138-126780\1512539.3
<br />the insurer.
<br />8.2 Indemnification. Tenant agrees to assume all risks, financial or otherwise,
<br />associated with the Premises. Tenant hereby releases and waives all claims and recourse against
<br />Lessor, including the right of contribution for loss or damage of persons or property, arising from,
<br />growing out of or in any way connected with or related to this Lease, including any damage to or
<br />interruption of use of the Premises including, but not limited to, loss of business, damage to,
<br />destruction of, or relocation costs of Tenant’s Improvements or impaired utility of the Premises
<br />caused by erosion, flood, or flood overflow, or caused by any action undertaken in the operation,
<br />maintenance, repair, reconstruction, replacement, enlargement or improvement of the Premises
<br />except claims arising from the gross negligence or willful misconduct of Lessor or any Lessor
<br />Parties. Tenant hereby agrees to indemnify, defend (with counsel approved in writing by Lessor), and
<br />hold harmless, Lessor and any Lessor Parties against any and all claims, losses, demands, damages,
<br />cost, expenses or liability for injury to any persons or property, arising out of the operation or
<br />maintenance of the Premises, and/or Tenant’s exercise of the rights under this Lease, except for
<br />liability arising out of the gross negligence or willful misconduct of Lessor or any Lessor Parties,
<br />including the cost of defense of any lawsuit arising therefrom, and except for claims arising after the
<br />later to occur of the expiration or earlier termination of the Term, or the date Tenant vacates the
<br />Premises. If Lessor is named as co-defendant in a lawsuit in connection with this Lease, Tenant shall
<br />notify Lessor of such fact and shall represent the Lessor in such legal action unless Lessor
<br />undertakes to represent themselves as co-defendant in such legal action, in which event, Tenant shall
<br />pay to Lessor their litigation costs, expenses, and reasonable attorneys' fees. If judgment is entered
<br />against Lessor and Tenant by a court of competent jurisdiction because of the concurrent active
<br />negligence of Lessor and Tenant, Lessor and Tenant agree that liability will be apportioned as
<br />determined by the court. Neither Party shall request a jury apportionment. A judgment or other
<br />judicial determination regarding Lessor’s negligence shall not be a condition precedent to Tenant’s
<br />obligations stated in this Section.
<br />Tenant acknowledges that it is familiar with the language and provisions of California Civil Code
<br />Section 1542 which provides as follows:
<br />A general release does not extend to claims which the creditor or releasing party does not know or
<br />suspect to exist in his or her favor at the time of executing the release and that if known by him or
<br />her, would have materially affected his or her settlement with the debtor or released party.
<br />Tenant, being aware of and understanding the terms of Section 1542, hereby waives all benefit of its
<br />provisions to the extent described in this paragraph.
<br />The foregoing indemnity and defense obligations of this Lease shall survive its expiration or
<br />termination. This Section 8.2 notwithstanding, indemnification with respect to Hazardous Materials
<br />shall be governed by Section 4.4.4.
<br />8.3 Damage to Tenant’s Premises. Lessor shall not be liable for injury or damage
<br />which may be sustained by the person, goods, wares, merchandise, or other property of Tenant, of
<br />Tenant’s employees, invitees, customers, or of any other person in or about the Premises or the
<br />Improvements caused by or resulting from any peril which may affect the Premises or Improvements,
<br />including fire, steam, electricity, gas, water, or rain which may leak or flow from or into any part of
<br />the Premises or the Improvements, whether such damage or injury results from conditions arising
<br />upon the Premises or from other sources; provided, however, Lessor shall be liable for injury or
<br />EXHIBIT 5
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