|
particular time or times. Further, no conduct by any Lessee, subLessee or other occupant of, or any customer of, or any supplier to or
<br />use of any portion of the Shopping Center shall constitute an eviction, constructive or otherwise, of Lessee from the Premises, and
<br />Lessee hereby waives any and all claims that it might otherwise have against Lessor by reason thereof.
<br />6.2 Hazardous Substances.
<br />(a) Reportable Uses Require Consent. The tenn "Hazardous Substance" as used in this Lease shall mean any
<br />product, substance, or waste whose presence, use, manufacture, disposal, transportation, or release, either by itself or in combination
<br />with other materials expected to be on the Premises, is either: (i) potentially injurious to the public health, safety or welfare, the
<br />environment or the Premises, (ii) regulated or monitored by any governmental authority, or (iii) a basis for potential liability of Lessor
<br />to any governmental agency or third party under any applicable statute or common law theory. Hazardous Substances shall include,
<br />but not be limited to, hydrocarbons, petroleum, gasoline, and/or crude oil or any products, by-products or fractions thereof. Lessee
<br />shall not engage in any activity in or on the Premises which constitutes a Reportable Use of Hazardous Substances without the
<br />express prior written consent of Lessor and timely compliance (at Lessee's expense) with all Applicable Requirements.
<br />"Reportable Use" shall mean (i) the installation or use of any above or below ground storage tank, (ii) the generation, possession,
<br />storage, use, transportation, or disposal of a Hazardous Substance that requires a permit from, or with respect to which a report, notice,
<br />registration or business plan is required to be filed with, any governmental authority, and/or (iii) the presence at the Premises of a
<br />Hazardous Substance with respect to which any Applicable Requirements requires that a notice be given to persons entering or
<br />occupying the Premises or neighboring properties. Notwithstanding the foregoing, Lessee may use any ordinary and customary
<br />materials reasonably required to be used in the normal course of the Agreed Use, ordinary office supplies (copier toner, liquid paper,
<br />glue, etc.) and common household cleaning materials, so long as such use is in compliance with all Applicable Requirements, is not a
<br />Reportable Use, and does not expose the Premises or neighboring property to any meaningful risk of contamination or damage or
<br />expose Lessor to any liability therefor. In addition, Lessor may condition its consent to any Reportable Use upon receiving such
<br />additional assurances as Lessor reasonably deems necessary to protect itself, the public, the Premises and/or the environment against
<br />damage, contamination, injury and/or liability, including, but not limited to, the installation (and removal on or before Lease
<br />expiration or termination) of protective modifications (such as concrete encasements) and/or increasing the Security Deposit.
<br />(b) Duty to Inform Lessor. if Lessee knows, or has reasonable cause to believe, that a Hazardous Substance has come
<br />to be located in, on, under or about the Premises, other than as previously consented to by Lessor, Lessee shall immediately give
<br />written notice of such fact to Lessor, and provide Lessor with a copy of any report, notice, claim or other documentation which it has
<br />concerning the presence of such Hazardous Substance.
<br />(c) Lessee Remediation. Lessee shall not cause or permit any Hazardous Substance to be spilled or released in, on,
<br />under, or about the Premises (including through fine plumbing or sanitary sewer system) and shall promptly, at Lessee's expense,
<br />comply with all Applicable Requirements and take all investigatory and/or remedial action reasonably recommended, whether or not
<br />formally ordered or required, for the cleanup of any contamination of, and for the maintenance, security and/or monitoring of the
<br />Premises or neighboring properties, that was caused or materially contributed to by Lessee, or pertaining to or involving any
<br />Hazardous Substance brought onto the Premises during the term of this Lease, by or for Lessee, or any third party.
<br />(d) Lessee Indemnification. Lessee shall indemnify, defend and hold Lessor, its agents, employees, lenders and ground
<br />lessor, if any, harmless from and against any and all loss of rents and/or damages, liabilities, judgments, claims, expenses, penalties,
<br />and attorneys' and consultants' fees arising out of or involving any Hazardous Substance brought onto the Premises by or for Lessee,
<br />or any third party (provided, however, that Lessee shall have no liability under this Lease with respect to underground migration of
<br />any Hazardous Substance under the Premises from areas outside of the Shopping Center not caused or contributed to by Lessee).
<br />Lessee's obligations shall include, but not be limited to, the effects of any contamination or injury to person, property or the
<br />environment created or suffered by Lessee, and the cost of investigation, removal, remediation, restoration and/or abatement, and shall
<br />survive the expiration or termination of this Lease. No termination, cancellation or release agreement entered into by Lessor and
<br />Lessee shall release Lessee from its obligations under this Lease with respect to Hazardous Substances, unless specifically so agreed
<br />by Lessor in writing at the time of such agreement.
<br />(e) Lessor Indemnification. Except as otherwise provided in paragraph 8.7, Lessor and its successors and assigns shall
<br />indemnify, defend, reimburse and bold Lessee, its employees and lenders, harmless from and against any and all environmental
<br />damages, including the cost of remediation, which are suffered as a direct result of Hazardous Substances on the Premises prior to
<br />Lessee taking possession or which are caused by the gross negligence or willful misconduct of Lessor, its agents or employees.
<br />Lessor's obligations, as and when required by the Applicable Requirements, shall include, but not be limited to, the cost of
<br />investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration or termination of this Lease.
<br />(f) Investigations and Remediation. Lessor shall retain the responsibility and pay for any investigations or
<br />remediation measures required by governmental entities having jurisdiction with respect to the existence of Hazardous Substances on
<br />the Premises prior to Lessee taking possession, unless such remediation measure is required as a result of Lessee's use of the Premises
<br />(including "Alterations", as defined in paragraph 7.3(a) below), in which event Lessee shall be responsible for such payment. Lessee
<br />shall cooperate fully in any such activities at the request of Lessor, including allowing Lessor and Lessor's agents to have reasonable
<br />access to the Premises at reasonable times in order to Bary out Lessor's investigative and remedial responsibilities.
<br />
|