Shutterfly 2008 Annual Report Download - page 90

direction of Tenant at the Premises and Tenant shall bond off or release of record any lien within thirty (30) days of being filed against the Premises. Tenant is not Landlord’
s agent or
nominee in connection with any construction activities performed by or for Tenant on the Premises and Landlord shall not be liable for the contracts or liabilities of Tenant. Tenant
agrees that any damage to the Premises caused by Tenant’s construction work shall be repaired at Tenant’
s sole cost and expense. No later than thirty (30) days after completion of any
work in the Premises by Tenant (including, but not limited to, the addition of equipment, cables or any material that must be inspected), Tenant shall provide to Landlord (i) an affidavit
from the general contractor performing the work that same has been substantially completed in accordance with the approved plans and specifications and that all mechanics and
materialmen in connection therewith have been paid in full; (ii) a waiver of lien with respect to such construction work executed by the general contractor and each subcontractor,
except as to any contractor for which Tenant has obtained a bond to pay any claims by such persons; and (iii) a certificate of occupancy from the applicable governmental authorities, if
required, evidencing completion of such work in accordance all applicable laws, codes and ordinances. In the event a certificate of occupancy cannot be obtained for the Premises due
to any action or inaction by Tenant, Tenant shall be in default hereunder and must immediately comply with any and all requirements to obtain a certificate of occupancy.
(c) All alterations, additions or improvements (collectively, “Alterations”),
including without limitation all partitions, walls, railings, carpeting, floor and wall coverings
and other fixtures (excluding, however, Tenant’s trade fixtures as described in the paragraph entitled “Trade Fixtures and Equipment”
below) made by, for, or at the direction of Tenant
shall, at the expiration or earlier termination of this Lease, become the property of Landlord, , and shall remain upon the Premises at the expiration or earlier termination of this Lease,
provided, however, that Tenant shall have the right (but not the obligation) to remove all Alterations and other items in the Premises or the Building (such as chillers and generators),
except that Tenant shall be obligated to remove those Alterations which Landlord designates in writing for removal at the time Landlord grants its consent to such Alterations. Tenant
shall repair any damage caused to the Premises by said removal of Alterations.
6. USE OF PREMISES .
(a) Tenant shall use the Premises only for manufacturing, warehousing and distribution, general office, data center and ancillary uses, and for any other legal
purpose. Tenant shall comply with all laws, ordinances, orders, regulations or zoning classifications of any lawful governmental authority, agency or other public or private regulatory
authority (including insurance underwriters or rating bureaus) having jurisdiction over the Premises (collectively, “Legal Requirements”)
to the extent made necessary by reason of
Tenant’
s particular use or occupancy of the Premises. Tenant shall not do any act or follow any practice relating to the Premises which shall constitute a nuisance or detract in any way
from the reputation of the Building. Tenant’
s duties in this regard shall include allowing no noxious or offensive odors, fumes, gases, smoke, dust, steam or vapors, or any loud or
disturbing noise or vibrations to originate in or emit from the Premises in excess of what is commercially reasonable.
(b) Without
limiting the generality of (a) above, and excepting only office supplies and cleaning materials used by Tenant in its ordinary day to day business operations
(but not held for sale, storage or distribution) customarily used in facilities such as the Building, and then only to the extent same are used, stored (but not any bulk storage),
transported, and disposed of strictly in accordance with all applicable laws, regulations and manufacturer’
s recommendations), the Premises shall not be used for the treatment, storage,
transportation to or from, use or disposal of toxic or hazardous wastes, materials, or substances, or any other substance that is prohibited, limited or regulated by any governmental or
quasi-
governmental authority or that, even if not so regulated, could or does pose a hazard to health and safety of the occupants of the Building or surrounding property except for
chemicals and other substances used in connection with Tenant’s photo-
developing and merchandising processes and services provided such chemicals and other substances are
brought into the Premises, used, stored and disposed of in accordance with all Legal Requirements and Environmental Laws.
(c) Landlord hereby represents and warrants to Tenant that as of the Commencement Date, the Premises and Building shall be in compliance with all applicable Legal
Requirements, including without limitation, Environmental Laws (as hereinafter defined).
(d) Tenant has previously been furnished with a copy of any applicable restrictive covenants relating to the Building and the Business Park, and Tenant shall abide by
these restrictions in connection with its use of the Premises.
(e) Tenant shall exercise due care in its use and occupancy of the Premises and shall not commit or allow waste to be committed on any portion of the Premises; and at
the expiration or earlier termination of this Lease, Tenant shall deliver the Premises to Landlord in as good condition as same were on the date of completion of the Improvements in the
Premises or were thereafter placed by Landlord or Tenant, ordinary wear and tear, condemnation, fire or other casualty and acts of God and the elements alone excepted.
(f) Tenant shall save Landlord harmless from any claims, liabilities, penalties, fines, costs, expenses or damages resulting from the failure of Tenant to comply with the
provisions of this paragraph 6. This indemnification shall survive the termination or expiration of this Lease.
7. TAXES .
(a) Tenant shall pay any taxes, documentary stamps or assessments of any nature imposed or assessed upon Tenant’
s trade fixtures, equipment, machinery, inventory,
merchandise or other personal property located on the Premises and owned by or in the custody of Tenant as promptly as all such taxes or assessments may become due and payable
without any delinquency. Tenant shall provide Landlord with copies of all paid receipts respecting such tax or charge upon request by Landlord.
(b) Landlord shall pay, subject to reimbursement from Tenant as provided in paragraph 3 herein, all ad valorem property taxes which are now or hereafter assessed upon
the Building and the Premises, except as otherwise expressly provided in this Lease.
8. FIRE AND EXTENDED COVERAGE INSURANCE
. Landlord shall maintain and pay for fire insurance, with extended coverage, covering the Building equal to
at least one hundred percent (100%) of the replacement cost thereof. Tenant shall not do or cause to be done or permit on the Premises or in the Building anything deemed
extrahazardous on account of fire and Tenant shall not use the Premises or the Building in any manner which will cause an increase in the premium rate for any insurance in effect on
the Building or a part thereof. If, because of anything done, caused to be done, permitted or omitted by Tenant or its agent(s), contractor(s), employee(s), invitee(s), licenses(s), servant
(s) subcontractor(s) or subtenant(s) the premium rate for any kind of insurance in effect on the Building or any part thereof shall be raised, Tenant shall pay Landlord on demand the
amount of any such increase in premium which Landlord shall pay for such insurance and if Landlord shall demand that Tenant remedy the condition which caused any such increase in
an insurance premium rate, Tenant shall remedy such condition within five (5) days after receipt of such demand. Tenant shall maintain and pay for all fire and extended coverage
insurance on its contents in the Premises, including trade fixtures, equipment, machinery, merchandise or other personal property belonging to or in the custody of Tenant.
9. LANDLORD’S COVENANT TO REPAIR AND REPLACE .
(a) During the term of this Lease, Landlord shall be responsible only for repairs or replacements, at its sole cost and expense, to the roof, exterior walls, floor slab,
structural members (including foundation and subflooring of the Premises) and for the central plumbing and electrical systems serving the entire Building up to the respective
applicable points of entry of same into the Premises. Landlord’
s repairs and replacements shall be made within a reasonable time. If the need for such repairs or replacements is the
result of the negligence, misconduct or intentional acts or omissions of Tenant, its agent(s), contractor(s), employee(s), invitee(s), licensee(s), servant(s), subcontractor(s) or subtenant
(s) and the expense of such repairs or replacements are not fully covered and paid by Landlord’
s insurance, then Tenant shall pay Landlord the full amount of expenses not
covered. Landlord’s duty to repair or replace as prescribed in this paragraph shall be Tenant’
s sole remedy and shall be in lieu of all other warranties or guaranties of Landlord, express
or implied.
(b) Landlord shall not be liable for any failure to make any repairs or to perform any maintenance required of Landlord hereunder unless such failure shall persist for
thirty (30) days (except in case of emergency) after written notice from Tenant setting forth the need for such repair(s) or replacement(s) in reasonable detail has been received by
Landlord. Except as set forth in the paragraph of this Lease, entitled “Damage or Destruction of Premises”
or elsewhere in this Lease, there shall be no abatement of rent. There shall
be no liability of Landlord by reason of any injury to or interference with Tenant’
s business arising from the making of any repairs, replacements, alterations or improvements to any
portion of the Building or the Premises, or to fixtures, appurtenances and equipment therein, provided that Landlord uses reasonable efforts to minimize interference with Tenant’
s use
and occupancy of the Premises. In the event of any failure by Landlord to perform any of its obligations hereunder, Tenant (except in the case of an emergency) shall take no action
without having first given Landlord thirty (30) days written notice of any such default. Following such notice and failure by Landlord to cure, Tenant shall have the right to take the
necessary actions to perform Landlord's uncured obligations hereunder and invoice Landlord for the actual and reasonable costs and expenses thereof, unless Landlord has diligently
commenced to perform its uncured obligations hereunder within said thirty (30) day period. Landlord shall remit payment to Tenant within thirty (30) days of receipt of a paid invoice
and applicable lien waivers from Tenant. If Landlord fails to remit payment to Tenant within the aforesaid thirty (30) day period, Tenant shall have the right to offset and deduct such
sum; such offset not to exceed twenty-five percent (25%) of Minimum Rental for each month until Tenant is made whole.