Shutterfly 2008 Annual Report Download - page 92

subcontractor(s) or subtenant(s), except if caused by any act(s) or omission(s) on the part of Landlord, its agent(s), contractor(s), employee(s), invitee(s), licensee(s), servant(s) or
subcontractor(s). Tenant shall give Landlord immediate notice of any such happening causing injury to persons or property.
(b) Landlord shall indemnify and save Tenant 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 Landlord, its agent(s), employee(s), contractor(s), invitee(s), licensee(s), servant(s)
or subcontractor(s), except if caused by any act(s) or omission(s) on the part of Tenant, its agent(s), contractor(s), employee(s), invitee(s), licensee(s), servant(s), subcontractor(s) or
subtenant(s). Provided, however, Landlord shall not be liable for any damage caused or occasioned by or from water, snow or ice being upon or coming through the roof, trapdoor,
walls, windows, doors, or otherwise in, upon or about the Premises or the Building or from any damage arising from acts or omissions of tenants or other occupants of the Building,
unless due to negligence of Landlord, its agent(s), contractor(s), or employee(s), invitee(s), licensee(s), servant(s) or subcontractor(s).
(c) (i) At all times during the term of this Lease, Tenant shall at its own expense keep in force adequate public liability insurance under the terms of a commercial
general liability policy (occurrence coverage) in the amount of not less than $2,000,000.00 coverage and with such company(ies) licensed to do business in the state in which the
Premises is located as shall from time to time be reasonably acceptable to Landlord (and to any lender having a mortgage interest in the Premises) and naming Landlord as an additional
insured (and, if requested by Landlord from time to time, naming Landlord’
s mortgagee as an additional insured). Such insurance shall include, without limitation, personal injury and
contractual liability coverage for the performance by Tenant of the indemnity agreements set forth in this Lease. Tenant shall first furnish to Landlord copies of policies or certificates
of insurance evidencing the required coverage prior to the Commencement Date and thereafter prior to each policy renewal date. All policies required of Tenant hereunder shall
contain a provision whereby the insurer is not allowed to cancel or change materially the coverage without first giving thirty (30) days’
written notice to Landlord, and (ii) at all times
during the term of this Lease, Landlord shall at its own expense keep in force adequate public liability insurance under the terms of a commercial general liability policy (occurrence
coverage) in the amount of not less than $2,000,000.00 coverage and with such company(ies) licensed to do business in the state in which the Premises is located. Such insurance shall
include, without limitation, personal injury and contractual liability coverage for the performance by Landlord of the indemnity agreements set forth in this Lease. Landlord shall first
furnish to Tenant copies of policies or certificates of insurance evidencing the required coverage upon request.
(d) The non-prevailing party shall also pay all costs, expenses and reasonable attorneys’
fees that may be incurred by the prevailing party in enforcing the agreements of
this Lease, whether incurred as a result of litigation or otherwise.
18. LANDLORD’S RIGHT OF ENTRY . Provided that Landlord uses reasonable efforts to minimize interference with Tenant’
s use and occupancy of the Premises,
Landlord, and those persons authorized by it, shall have the right to enter the Premises at all reasonable times and upon 24 hours prior notice (except in the case of emergency) for the
purposes of making repairs, making connections, installing utilities, providing services to the Premises or for any other tenant, making inspections or showing the same to prospective
purchasers and/or lenders, as well as at any time in the event of emergency involving possible injury to property or persons in or around the Premises or the Building. Further, during
the last three (3) months of the initial or of any extended term, Landlord and those persons authorized by it shall have the right at reasonable times and upon reasonable notice to show
the Premises to prospective tenants.
19. EMINENT DOMAIN
. If any substantial portion of the Premises is taken under the power of eminent domain (including any conveyance made in lieu thereof) or if
such taking shall materially impair the normal operation of Tenant’
s business, then either party shall have the right to terminate this Lease by giving written notice of such termination
within thirty (30) days after such taking. If neither party elects to terminate this Lease, Landlord shall repair and restore the Premises (to the extent possible) to substantially the same
condition as the Premises existed immediately prior to such taking and the Annual Rental shall be proportionately and equitably reduced. All compensation awarded for any taking (or
the proceeds of a private sale in lieu thereof) shall be the property of Landlord whether such award is for compensation for damages to the Landlord’s or Tenant’
s interest in the
Premises, and Tenant hereby assigns all of its interest in any such award to Landlord; provided, however, Landlord shall not have any interest in any separate award made to Tenant for
Tenant’s Alterations, loss of business, moving expense or the taking of Tenant’
s trade fixtures or equipment if a separate award for such items is made to Tenant and if such separate
award does not reduce the award to Landlord.
20. EVENTS OF DEFAULT AND REMEDIES .
(a) Upon the occurrence of any one or more of the following events (the “Events of Default,” any one an “Event of Default”),
the party not in default shall have the right
to exercise any rights or remedies available in this Lease, at law or in equity provided same are exercised in accordance with applicable Legal Requirements. Events of Default shall
be:
(i) Tenant’s failure to pay when due any rental or other sum of money payable hereunder and such failure is not cured within ten (10) days after written
notice thereof;
(ii) Failure by either party to perform any other of the terms, covenants or conditions contained in this Lease if not remedied within thirty (30) days
after receipt of written notice thereof, or if such default cannot be remedied within such period, such party does not within thirty (30) days after written notice thereof
commence such act or acts as shall be necessary to remedy the default and shall not thereafter complete such act or acts within a reasonable time;
(iii) Tenant shall become bankrupt or insolvent, or file any debtor proceedings, or file pursuant to any statute a petition in bankruptcy or insolvency or
for reorganization, or file a petition for the appointment of a receiver or trustee for all or substantially all of Tenant’s assets and such petition or appointment shall not
have been set aside within ninety (90) days from the date of such petition or appointment, or if Tenant makes an assignment for the benefit of creditors, or petitions
for or enters into an arrangement; or
(iv) Tenant allows its leasehold estate to be taken under any writ of execution and such writ is not vacated or set aside within ninety (90) days.
(b) In addition to its other remedies, Landlord, upon an Event of Default by Tenant, shall have the immediate right, after any applicable grace period expressed herein
(but in no event upon less than five (5) days prior written notice), to terminate and cancel this Lease and/or to reenter and remove all persons and properties from the Premises and
dispose of such property as it deems fit, all without being guilty of trespass or being liable for any damages caused thereby. If Landlord reenters the Premises, it may either terminate
this Lease or from time to time without terminating this Lease, Landlord shall make such alterations and repairs as may be necessary or appropriate to relet the Premises and relet the
Premises upon such terms and conditions as Landlord deems advisable without any responsibility on Landlord whatsoever to account to Tenant for any surplus rents collected. No
retaking of possession of the Premises by Landlord shall be deemed as an election to terminate this Lease unless a written notice of such intention is given by Landlord to Tenant at the
time of reentry; but, notwithstanding any such reentry or reletting without termination, Landlord may at any time thereafter elect to terminate for such previous default. In the event of
an elected termination by Landlord, whether before or after reentry, Landlord may recover from Tenant damages, including the costs of recovering the Premises, and Tenant shall
remain liable to Landlord for the total Annual Rental as would have been payable by Tenant hereunder for the remainder of the term (which may at Landlord’
s election be accelerated
to be due and payable in full as of the Event of Default and recoverable as damages equal to the net present value of future rent, discounted at the greater of (i) eight percent (8%) or (ii)
the then applicable “discount rate” of the Federal Reserve Bank of Charlotte, North Carolina plus one percent (1.0%) per annum, less the Market Rate (as defined in Exhibit “E”
hereof)
of the Premises for the remainder of the Term) less the rents actually received from any reletting. In determining the Annual Rental which would be payable by Tenant subsequent to
default, the Annual Rental for the unexpired portion of the term shall be equal (on a monthly basis) to the Annual Rental payable by Tenant immediately prior to the default. If any rent
owing under this Lease is collected by or through an attorney, Tenant agrees to pay Landlord’s reasonable attorneys’ fees to the extent allowed by applicable law.
(c) In the case of Tenant's default as contemplated herein, Landlord shall have a duty to mitigate its damages.
21. SUBORDINATION
. This Lease is subject and subordinate to any and all mortgages or deeds of trust now or hereafter placed on the property of which the
Premises are a part, and this clause shall be self-
operative without any further instrument necessary to effect such subordination; however, if requested by Landlord, Tenant shall
promptly execute and deliver to Landlord any such certificate(s) as Landlord may reasonably request evidencing subordination of this Lease to or the assignment of this Lease as
additional security for such mortgages or deeds of trust. Provided, however, in each case the holder of the mortgage or deed of trust shall (which in the case of an existing holder of a
mortgage or deed of trust, prior to the Commencement Date) agree that this Lease shall not be divested by foreclosure or other default proceedings thereunder so long as Tenant shall
not be in default under the terms of this Lease beyond any applicable cure period set forth herein. Tenant shall continue its obligations under this Lease in full force and effect
notwithstanding any such default proceedings under a mortgage or deed of trust and shall attorn to the mortgagee, trustee or beneficiary of such mortgage or deed of trust, and their
successors or assigns, and to the transferee under any foreclosure or default proceedings. Tenant will, upon request by Landlord, execute and deliver to Landlord or to any other person