Shutterfly 2008 Annual Report Download - page 91

10. TENANT’S COVENANT TO REPAIR
. Tenant shall be responsible for the repair, replacement and maintenance in good order and condition of all parts and
components of the Premises, other than those specified for repair, replacement and maintenance by Landlord above, including without limitation the plumbing, wiring, electrical
systems, HVAC system (subject to the provisions below), glass and plate glass, and the equipment and machinery constituting fixtures, unless such repairs or replacements are required
as a result of the negligence or intentional misconduct of Landlord, its agent(s), contractor(s), employee(s), invitee(s), or subcontractor(s) in which event Landlord shall be responsible
for such repairs. Tenant’s duty to maintain the HVAC system shall specifically include the duty to enter into and maintain at Tenant’
s sole expense during the entire term of this Lease
a contract(s) for the routine and periodic maintenance and regular inspection of such HVAC system, the replacement of filters as recommended and the performance of other
recommended periodic servicing in accordance with applicable manufacturer’
s standards and recommendations. Such contract (a) shall be with a reputable contractor reasonably
satisfactory to Landlord; (b) shall satisfy the requirements for routine and periodic maintenance, if any, necessary to keep all applicable manufacturer’
s warranties in full force and
effect; and (c) shall provide that in the event this Lease expires or is earlier terminated for any reason whatsoever that said contract shall be immediately terminable by Landlord or
Tenant without any cost, expense or other liability on the part of Landlord. Notwithstanding, Landlord shall pay up to $1,000 in each instance toward replacement of the HVAC
system, any major component of the HVAC system(s) and/or any operating system (unless the same is caused by the negligence of Tenant, its employees, contractors or agents). In the
event the costs for replacement of any HVAC system, any major component of the HVAC system(s) and/or any operating system not caused by the negligence of Tenant, its
employees, contractors or agents is greater than $1,000 in each instance, Landlord shall pay the same which shall be amortized over the useful life of such replaced system (based upon
standard accounting principles) and charged to Tenant proportionately. Tenant shall be obligated to pay all such costs within thirty (30) days after notice from Landlord.
11. TRADE FIXTURES AND EQUIPMENT . Any trade fixtures installed in the Premises at Tenant’s expense shall remain Tenant’
s personal property and Tenant
shall have the right at any time during the term of this Lease to remove such trade fixtures. Upon removal of any trade fixtures, Tenant shall immediately restore the portion of the
Premises damaged by such removal to the condition required by Section 6(e) of this Lease. Any trade fixtures not removed by Tenant after the expiration or an earlier termination of the
Lease shall become, at Landlord’
s sole election, either (i) the property of Landlord, in which event Landlord shall be entitled to handle and dispose of same in any manner Landlord
deems fit without any liability or obligation to Tenant or any other third party with respect thereto, or (ii) subject to Landlord’
s removing such property from the Premises and storing
same, all at Tenant’
s expense and without any recourse against Landlord with respect thereto. Without limiting the generality of the foregoing, the following property shall in no event
be deemed to be “trade fixtures”
and Tenant shall not remove any such property from the Premises under any circumstances, regardless of whether installed by Landlord or Tenant: (a)
any air conditioning, air ventilating or heating fixtures or equipment (with the exception of a portable dehumidifier installed by Tenant in the Premises); (b) any lighting fixtures or
equipment; (c) any dock levelers; (d) any carpeting or other permanent floor coverings; (e) any paneling or other wall coverings; or (f) plumbing fixtures and equipment.
12. UTILITIES
. Tenant shall pay for all utilities or services related to its use of the Premises, including, without limitation, electricity, gas, heat, water, sewer,
telephone and janitorial services. All utilities shall, as of the Commencement Date, have separate meters at Landlord’
s sole expense. Landlord shall not be responsible for the
stoppage or interruption of utilities services other than as required by its limited covenant to repair and replace set forth above, nor shall Landlord be liable for any damages caused by
or from the plumbing and sewer systems, provided, however, that Annual Rental shall abate if any utility service is not provided to the Premises for more than five (5) continuous days
due to Landlord’s negligence. Tenant shall have the right to place a generator and chiller outside the Premises in a location approved by Landlord and Tenant.
13. DAMAGE OR DESTRUCTION OF PREMISES
. If the Premises are damaged by fire or other casualty, either in whole or in part, but no part of the Premises is
rendered untenantable for Tenant’s business, Landlord shall cause such damage to be repaired (to the extent of the Base Building (as hereinafter defined) and Landlord’
s Work) without
unreasonable delay and the Annual Rental shall not be abated. If by reason of such casualty the Premises are rendered untenantable in Tenant’
s business, either in whole or in part,
Landlord shall cause the damage to be repaired or replaced (to the extent of the Base Building and Landlord’
s Work) without unreasonable delay, and, in the interim, the Annual Rental
shall be proportionately reduced as to such portion of the Premises as is rendered untenantable. Any such abatement of rent shall not, however, create an extension of the term of this
Lease. Provided , however
, if by reason of such casualty, the Premises are rendered untenantable in some material portion, and the amount of time required to repair the damage using
due diligence is in excess of one hundred twenty (120) days, then either party shall have the right to terminate this Lease by giving written notice of termination within sixty (60) days
after the date of casualty, and the Annual Rental shall abate as of the date of such casualty in the event of such termination. Notwithstanding the other provisions of this paragraph, in
the event there should be a casualty loss to the Premises to the extent of fifty percent (50%) or more of their replacement value or if the Premises are rendered untenantable for the
conduct of Tenant’
s business operations during the last twelve (12) months of the initial term or any extended term, either party may, at its option, terminate this Lease by giving
written notice within sixty (60) days after the date of the casualty and Annual Rental shall abate as of the date of such notice. Except as provided herein, Landlord shall have no
obligation to rebuild or repair in case of fire or other casualty, and no termination under this paragraph shall affect any rights of Landlord or Tenant hereunder because of prior defaults
of the other party. Tenant shall give Landlord immediate notice of any fire or other casualty in the Premises.
14. GOVERNMENTAL ORDERS
. Except as hereinbelow set forth regarding compliance of the physical structure of the Premises with the applicable requirements of
the Americans with Disabilities Act and the implementing regulations (the “ADA”)
as of the Commencement Date, Tenant agrees, at its own expense, to comply promptly with all
requirements of any legally constituted public authority that may be in effect from time to time made necessary by reason of Tenant’
s particular use or occupancy of the
Premises. Landlord agrees to comply promptly with any such requirements if not made necessary by reason of Tenant’
s particular use or occupancy, at its sole cost and expense. With
regard to the physical structure of the Premises, Landlord agrees to construct the Premises in compliance with the applicable requirements of the ADA in effect as of the
Commencement Date (it being understood that under no circumstances shall Tenant be responsible for any costs incurred to cause the Premises to comply with the ADA, which may
include, but is not limited to, restroom facilities, emergency strobe lights and horns, and building access). If it is determined that for any reason Landlord shall have failed to cause the
physical structure of the Premises to be brought into compliance with the ADA as of the Commencement Date (to at least the minimum extent required under applicable regulations
then in effect), then Landlord, as its sole obligation, will take the action(s) necessary to cause the physical structure of the Premises to so comply, and Tenant acknowledges and agrees
that Landlord has and shall have no other obligation or liability whatsoever to Tenant, or to anyone claiming by or through Tenant, regarding any failure of the Premises or the activities
therein to comply with the applicable requirements of the ADA. Landlord and Tenant agree, however, that if any actions is necessary in order to comply with any of the above
requirements during the last two (2) years of the Lease and such action to comply with any of the above requirements would cost Landlord in excess of one (1) year’
s rent, then
Landlord may terminate this Lease by giving written notice of termination to Tenant, which termination shall become effective sixty (60) days after receipt of such notice, and which
notice shall eliminate the necessity of compliance with such requirement by Landlord, unless Tenant shall elect, before termination becomes effective, to pay to Landlord all costs for
the necessary compliance.
15. MUTUAL WAIVER OF SUBROGATION
. For the purpose of waiver of subrogation, the parties mutually release and waive unto the other all rights to claim
damages, costs or expenses for any injury to property of Landlord or Tenant caused by a casualty of any type whatsoever in, on or about the Premises All insurance policies carried
with respect to this Lease, if permitted under applicable law, shall contain a provision whereby the insurer waives, prior to loss, all rights of subrogation against either Landlord or
Tenant.
16. SIGNS AND ADVERTISING .
(a) Tenant may install one (1) tenant identification sign in accordance with Building standards and subject to Landlord's prior written approval (not to be unreasonably
withheld, delayed or conditioned), such sign to be located at or near the Tenant’
s front entrance to the Premises within the Building. Tenant shall submit sign drawings to Landlord for
approval prior to fabrication and installation. The following submission requirements, in duplicate, constitute the minimum data required: (i) layout, size, location and color of test; (ii)
layout of additional symbols or logo; (iii) installation details; and (iv) lighting details, if applicable. In the event Tenant desires any changes to its initial sign, Tenant shall reimburse
Landlord for its actual legal fees for Landlord’
s review and approval of a new sign. If at any time during the term of this Lease (as same may be extended) Landlord provides signage
on a monument to other tenants in the Building, Landlord shall at Tenant’s cost provide Tenant with similar signage on such monument.
(b) In order to provide architectural control for the Building, Tenant shall, without Landlord’
s prior written approval, install no other exterior signs, marquees,
billboards, outside lighting fixtures and/or other decorations on the Premises or the Building. Landlord shall have the right to remove any such sign or other decoration and restore fully
the Premises at the cost and expense of Tenant if any such exterior work is done without Landlord’
s prior written approval, which approval Landlord shall be entitled to withhold or
deny in its reasonable discretion. Tenant shall not permit, allow or cause to be used in, on or about the Premises any sound production devices, mechanical or moving display devices,
bright lights, or other advertising media, the effect of which would be visible or audible from the exterior of the Premises, unless previously approved by the Landlord.
17. INDEMNIFICATION AND LIABILITY INSURANCE .
(a) Tenant shall indemnify and save Landlord harmless against any and all claims, suits, demands, actions, fines, damages, and liabilities, and all costs and expenses
thereof (including without limitation reasonable attorneys’
fees) arising out of injury to persons (including death) or property occurring in, on or about, or arising out of the Premises or
other areas in the Building if caused or occasioned wholly or in part by any act(s) or omission(s) of Tenant, its agent(s), contractor(s), employee(s), invitee(s), licensee(s), servant(s),