If such damage or destruction as is described in Section 11.1 above is covered by insurance, then (unless the Lessee elects to terminate this Agreement pursuant to Section 11.2 above) such proceeds shall be made available for and applied to the payment of the cost of the rebuilding, restoration, repair, replacement and alteration work required to be performed by the Lessee under the provisions of this Agreement.
ARTICLE 12. INDEMNITY
Section 12.1 Landlord not Liable for
Injury or Damage, etc.
(a) The Port Authority shall not be liable for any injury or damage to the Lessee or to any Person happening on, in or about the Premises or its appurtenances, nor for any injury or damage to the Premises or to any property belonging to the Lessee or to any other Person that may be caused by fire, by breakage, or by the use, misuse or abuse of any portion of the Premises (including, but not limited to, any of the common areas, hatches, openings, installations, stairways or hallways or other common facilities within the Premises, and the streets, sidewalk or other public areas within the Airport) or that may arise from any other cause whatsoever unless arising solely from the willful misconduct or gross negligence of the Port Authority.
(b) The Port Authority shall not be liable to the Lessee or to any Person for any failure of water supply, gas or electric current, nor for any injury or damage to any property of the Lessee or of any Person or to any portion of the Premises caused by or resulting from gasoline, oil, steam, gas, electricity, or hurricane, tornado, flood, wind or similar storm or disturbance or by or from water, rain or snow which may leak or flow from the street, sewer, gas mains or subsurface area or from any part of the Airport or by or from leakage of gasoline or oil from pipes, appliances, sewer or plumbing works therein or from any other place, nor for interference with light or other incorporeal hereditaments by any Person, or caused by any public or quasi-public work, unless arising solely from the willful misconduct or gross negligence of the Port Authority.
(c) In no event shall the Port Authority be liable to the Lessee or to any other Person for any injury or damage to any property of the Lessee or any other Person, or to the Premises, arising out of any sinking, shifting, movement, subsidence, failure in loss-bearing capacity of, or other matter or difficulty related to, the soil, or other surface or subsurface materials, on the Premises or at the Airport, it being agreed that the Lessee shall assume and bear all risk of loss with respect thereto, unless arising solely from the willful misconduct or gross negligence of the Port Authority.
Section 12.2 Indemnification.
(a) Obligation to Indemnify. The Lessee shall indemnify and hold harmless the Indemnified Parties from (and shall reimburse the Indemnified Parties for their respective costs or expenses, including legal expenses incurred in connection with the defense of) all claims and demands of third Persons, including but not limited to those for death, personal injuries or property damages, arising out of any default of the Lessee in performing or observing any term or provision of this Agreement, or out of the Lessee’s use or occupancy of the Premises or out of the acts or omissions of the Lessee, its officers, members, employers, agents, representatives, contractors, customers, guests or invitees where such acts or omissions are on the Premises, or arising out of any acts or omissions of such Lessee, its officers, members, employees, agents and representatives, where such acts or omissions are elsewhere at the Airport, and including all claims and demands of third Persons relating to the Flight Center IP Rights, except for such claims and demands arising solely from the willful misconduct or gross negligence of the Port Authority.
(b) Defense of Claims.
(1) If so directed, the Lessee shall at its own expense defend, with counsel acceptable to the Indemnified Party, any suit based upon any such claim or demand (even if such suit, claim or demand is groundless, false or fraudulent), and in handling such it shall not, without obtaining express advance permission from the General Counsel of the Port Authority, raise any defense involving in any way the jurisdiction of the tribunal over the person of the Port Authority, the immunity of the Port Authority, its Commissioners, officers, agents or employees, the governmental nature of the Port Authority, or the provisions of any statutes respecting suits against the Port Authority.
(2) In the event that any action or proceeding is brought against the Port Authority by reason of any claims covered by the foregoing indemnity, the Lessee shall, upon notice from the Port Authority, resist or defend such action or proceeding by counsel satisfactory to the Port Authority. Notwithstanding the foregoing, if such claim is covered by insurance, then defense counsel appointed by the applicable insurer shall be deemed to be satisfactory so long as the insurer has not reserved rights or disclaimed coverage as to part or all of such claim. The Port Authority will give reasonably prompt notice to the Lessee of any action or proceeding brought against the Port Authority by reason of any claims covered by the foregoing indemnity, together with copies of any documents served on the Port Authority in connection therewith. The Port Authority shall not defend such action or proceeding so long as the Lessee is diligently and competently doing so.
ARTICLE 13. RIGHT TO PERFORM COVENANTS
Section 13.1 Right to Perform Lessee’s Covenants.
If (x) the Lessee fails to perform any of its obligations hereunder (including without limitation any payment of insurance premiums but not including the Lessee’s obligations under Section 9.1 above) within (except in the case of an emergency) five (5) Business Days after notice, for obligations involving the payment of money, and thirty (30) days, for other obligations, or (y) with respect to obligations which by their nature are not susceptible of complete performance within the foregoing notice periods, if the Lessee has commenced performance within the relevant notice period but fails diligently and continuously to perform such obligation to completion, then, in such event, the Port Authority, in addition to all other remedies available to them, shall have the right to perform any of such obligations without further notice. Nothing in this Agreement, including this Article, shall be construed as imposing any duty on the Port Authority to perform any obligation required to be performed by the Lessee hereunder and the performance of any such obligation by the Port Authority shall not constitute a waiver of the Lessee’s default in failing to perform the same.
Section 13.2 Reimbursement by Lessee.
An amount equal to 130% of all sums paid by the Port Authority and all costs and expenses incurred by it in connection with its performance of any obligation of the Lessee pursuant to this Article 13, together with late charges calculated pursuant to Section 23.4(a) for the period from the respective dates of the making of each such payment or incurring of each such sum, cost, expense, charge or payment until the date of actual repayment to the Port Authority, shall be paid by the Lessee to the Port Authority within thirty (30) days of receipt by the Lessee of the Port Authority’s written notice, with a statement of such costs, expenses and other items and evidence of payment thereof, and such payment due from the Lessee to the Port Authority shall constitute additional Rental under this Agreement.