Shutterfly 2008 Annual Report Download - page 113

SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE (this “Second Amendment”) is made and entered into this 31
st
day of October, 2007, by and between
3915 SHOPTON
ROAD, LLC , a North Carolina limited liability company (hereinafter referred to as "Landlord"), 4015 SHOPTON ROAD, LLC
, a North Carolina limited liability company
(“Temporary Landlord”) and SHUTTERFLY, INC. , a Delaware corporation (hereinafter referred to as "Tenant").
RECITALS:
A. Landlord and Tenant have previously entered into that certain Lease Agreement dated December 22, 2006; as amended by that certain First Amendment to Lease dated
February 26, 2006, (as amended, the “Lease”) for the occupancy of approximately 102,400 rentable square feet of space (the “Premises”) known as building Shopton 18-
B, in the
Shopton Ridge Business Park, Charlotte, North Carolina (the “Building”).
B. Temporary Landlord owns that certain building adjacent to the Premises known as Shopton 18-C (the “Temporary Building”).
Tenant desires to lease temporary storage
space from Temporary Landlord upon the same terms and conditions as the Lease, except as set forth herein.
C. Landlord and Tenant desire to amend the Lease as hereinafter set forth and Temporary Landlord executes this Second Amendment evidencing its consent and
acknowledgement of the terms and conditions of lease of the Temporary Premises.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant do hereby enter into this
Second Amendment and amend the Lease as set forth below. All terms used but not defined herein shall have the meanings set forth in the Lease. All Recitals are incorporated herein
as if fully set forth below.
1. Signage . Landlord hereby approves the signage proposal as defined in Exhibit “A” attached to this Second Amendment and made a part hereof. Tenant agrees to
remove said signage from the Building upon Lease expiration or earlier termination and return any portion of the Building façade affected by such signage removal to its original
condition, ordinary wear and tear excepted.
2. Temporary Premises . Landlord hereby leases to Tenant, and Tenant hereby accepts and rents from Landlord, for the period of November 1, 2007 (“
Temporary
Premises Commencement Date”) through and including January 31, 2008 (the “Temporary Premises Term”, that certain office/warehouse space (the “Temporary Premises”)
containing
approximately 19,200 rentable square feet as shown on the attached Exhibit B in the Temporary Building. Tenant acknowledges that Landlord shall be permitted to show the
Temporary Premises to prospective tenants upon reasonable notice to Tenant. Landlord shall use commercially reasonable efforts not to interfere with Tenant’
s use of the Temporary
Premises during such showings.
3. Temporary Premises Rent
. During the Temporary Premises Term, Tenant shall pay to Landlord, without notice, demand, reduction, setoff or any defense, and in
addition to all payments due under the Lease for the Premises: (i) a monthly rental of $3,200.00; and (ii) Tenant’
s prorate share of all taxes, insurance and common area maintenance
costs for the Temporary Space, in advance, on or before the first day of each month of the Temporary Premises Term.
4. Temporary Premises Improvements . Tenant agrees to accept the Premises in its “AS-IS”, “WHERE-IS”
condition. Notwithstanding anything in the Lease regarding
approval to the contrary, Tenant may, without any further approval or notice to Landlord, at Tenant’
s sole cost and expense, including all permits, if any, in a good and workmanlike
manner, perform the following improvements in the Temporary Premises: (i) erect an interior chain-
link fence dividing the Temporary Premises from the remaining premises in the
Building, provided, however, that Tenant shall be responsible for removing the fence upon expiration of the Temporary Premises Term; (ii) erect an exterior, temporary ramp to the rear
door of the Temporary Premises; and (iii) install floor lamps.
5. Lease
. With the exception of anything noted in this Second Amendment, the terms and conditions of Sections 5 through 35 the Lease shall govern the lease of the
Temporary Premises and both Temporary Landlord and Tenant hereby agree to be bound by all such terms and conditions, except, with respect to the Temporary Premises as follows:
“Except as provided in Article 10 (Tenant’s Covenant to Repair), Landlord, at Landlord's sole cost and expense, shall keep the entire Building in good repair
and maintenance (including replacements) at all times, for the proper operation of the Building in a manner generally consistent with the maintenance and
repair (including replacements) of comparable properties, including, without limitation, the Temporary Premises, the common areas, the Building's windows,
roof, foundation, structure and walls, and mechanical and electrical systems, which include, but are not limited to, the heating, electrical, air conditioning,
ventilation and plumbing systems.”
“Except as provided in Article 9 (Landlord's Covenant to Repair and Replace), 13 (Damage or Destruction of Premises), 19 (Eminent Domain), and
reasonable wear and tear, Tenant shall at all times repair all damage to the Temporary Premises caused by Tenants or it employees, contractors, agents and
invitees, and return any portion of the Premises affected by such damage to its original condition.”
6. This Second Amendment may be executed in counterparts, which when taken together, shall constitute the entire agreement. Temporary Landlord, Landlord and
Tenant agree that the delivery of an executed copy of this Second Amendment by facsimile or by email of a *.pdf file with an original to follow shall be legal and binding and shall
have the same force and effect as if an original executed copy of this Second Amendment had been delivered.
7. Ratification . Except as modified and amended by this Second Amendment, all terms and conditions of the Lease shall remain in full force and effect.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
a.
All references in the Lease to the
“
Premises
”
shall be deemed to mean the Temporary Premises;
b.
All references in the Lease to the
“
Building
”
shall be deemed to mean the Temporary Building;
c.
The last sentence of Section 14 (Governmental Orders) is hereby deleted in its entirety.
d.
Notwithstanding anything in the Lease to the contrary, Tenant shall only be obligated to insure its personal property stored within the Premises.
e.
The first sentence of Section 9(a) is hereby deleted in its entirety and the following substituted therefor:
f.
Section 10 (Tenant
’
s Covenant to Repair) is hereby deleted in its entirety and the following substituted therefor.