Shutterfly 2008 Annual Report Download - page 122

Exhibit 10.23
FIRST AMENDMENT TO LEASE
(EXPANSION)
This First Amendment to Lease (the “Agreement”) is entered into as of April 30, 2007, by and between WESTPORT OFFICE PARK, LLC
, a California limited liability
company (“Landlord”), and SHUTTERFLY, INC. , a Delaware corporation ("Tenant"), with respect to the following facts and circumstances:
A. Landlord and Tenant are parties to that certain Lease Agreement dated July 5, 1999 (the “
Initial Lease Agreement), as amended by the Commencement Letter dated
September 8, 1999, a letter agreement dated December 28, 1999, Amendment No. 1 dated January 11, 2000, Amendment No. 2 dated May 21, 2001, Amendment No. 3 dated July 6,
2004, and Amendment No. 4 (“Amendment No. 4”) dated April 28, 2005 (collectively, the “Original Lease”), of certain premises (the “Existing Premises”)
within the building
commonly known as 2800 Bridge Parkway, Redwood City, California, and more particularly described in the Original Lease. Capitalized terms used and not otherwise defined herein
shall have the meanings given those terms in the Original Lease.
B. Landlord and Tenant desire to amend the Original Lease to add additional space on the terms and conditions provided herein.
IT IS THEREFORE, agreed as follows:
“3000 Bridge Building” means the commercial office building located at 3000 Bridge Parkway, Redwood City, California.
“Expansion Space”
means a portion of the 3000 Bridge Building, containing approximately 12,036 square feet of rentable area, commonly known as Suites 102 and
103 and more particularly shows on Exhibit “A-1” attached hereto. For purposes of this Agreement, “rentable area”
shall be calculated pursuant to the Standard Method for Measuring
Floor Area in Office Buildings (ANSI/BOMA Z65.1, 1996). Notwithstanding anything to the contrary in this Agreement, the recital of the rentable area herein above set forth is for
descriptive purposes only. Tenant shall have no right to terminate the Lease or receive any adjustment or rebate of any Basic Rent or Additional Rent payable hereunder if said recital
is incorrect. The Tenant has inspected the Expansion and is fully familiar with the scope and size thereof and agrees to pay the full Basic Rent and Additional Rent set forth herein in
consideration for the use and occupancy of said space, regardless of the actual number of squire feet contained therein.
“Expansion Space Commencement Date” shall mean June 1, 2007.
2.
Effective on the Expansion Space Commencement Date, the Premises shall be expanded to include the Expansion Space. Accordingly, effective on the Expansion Space
Commencement Date, the following terms of the Original Lease are amended as follows:
2.1 The Expansion Space is added to the Premises such that the Premises shall be comprised of the Existing Premises and the Expansion Space, and Exhibit “A-
1” attached hereto is hereby added to Exhibit “A” to the Original Lease.
2.2 Landlord and Tenant acknowledge that the provisions of Amendment No. 4 with respect to management fee, tenant maintenance, expenses of operation,
management and maintenance of Common Areas in Buildings, utilities, and taxes that currently apply in the Original Lease to the Existing Premises are based on Tenant occupying the
entire building in which the Existing Premises is located. Accordingly, with respect to the Expansion Space the following provisions of the Initial Lease Agreement shall apply to the
Expansion Space and the amendments of those sections made after the Initial Lease Agreement shall not be taken into account in determining Tenant’
s obligations with respect to the
Expansion Space: Paragraphs 4D, 4E, 7, 10, 11, and 12. To the extent any costs are not generally applicable to the Building and the 3000 Bridge Building or to Common Areas, the
amounts of those costs payable by Tenant shall be determined independently for the Existing Premises and the Expansion Space.
2.3 Tenant agrees to pay Landlord a Basic Rent for the Expansion Space in accordance with the following schedule:
The Monthly Basic Rent for the second month and estimated Additional Rent for the first month after the Expansion Space Commencement Date shall be payable upon the execution of
this Agreement. The Monthly Basic Rent for the Expansion Space shall be payable in the manner provided for in the Original Lease.
2.4 Paragraph 6 is amended to increase Tenant’s non-exclusive parking spaces by thirty-nine (39) spaces, or from one hundred sixty-
one (161) spaces to two
hundred (200) spaces.
2.5 The Term with respect to the Expansion Space shall be coterminous with the Existing Premises. In the event that Tenant exercises its extension option or a
termination right under the Original Lease, such extension or termination shall apply to the entire Premises then subject to the Original Lease (including the Expansion Space).
3. Tenant may take possession of the Expansion Space upon the full execution and delivery of this Agreement. Tenant’s possession of the Expansion Space prior to the
Expansion Space Commencement Date shall be on all the terms and conditions of the Original Lease, as amended hereby, except that Tenant shall not be obligated to pay Basic Rent or
Additional Rent. After the Expansion Space Commencement Date, Tenant’s obligation with respect to Basic Rent and Additional Rent shall be provided in the Original Lease, as
amended by this Agreement.
4. Except as provided in Section 5, below, Tenant shall accept the Expansion Space in its “AS IS” condition. Tenant agrees that Landlord has no obligation and has made
no promise to alter, remodel, improve, or repair the Expansion Space, or any part thereof, or to repair, bring into compliance with applicable laws, or improve any condition existing in
the Expansion Space as of the Expansion Space Commencement Date. The taking of possession of the Expansion Space by Tenant shall be conclusive evidence that the Expansion
Space and the Building were in good and satisfactory condition at the time possession was taken by Tenant. Neither Landlord nor Landlord’s agents have made any representations or
promises with respect to the condition of the 3000 Bridge Building, the Expansion Space, the land upon which the 3000 Bridge Building is constructed, the present or future suitability
or fitness of the Expansion Space or the 3000 Bridge Building for the conduct of Tenant’s particular business, or any other matter or thing affecting or related to the 3000 Bridge
Building or the Expansion Space, and no rights, easements or licenses are acquired by Tenant by implication or otherwise except as expressly set forth in this Original Lease. Any
improvements or personal property located in the Expansion Space are delivered without any representation or warranty from Landlord, either express or implied, of any kind,
including without limitation, title, merchantability, or suitability for a particular purpose. Tenant shall deliver to Landlord any modifications to Tenant’s insurance required under the
Original Lease to reflect the addition of the Expansion Space and Tenant’s entry into the Expansion Space prior to the delivery of possession to Tenant.
5. Notwithstanding Section 4, above, Landlord warrants that the roof, structural components of the Building, HVAC system, electrical and plumbing systems, doors,
elevator, parking lot or site lighting (the “Covered Items”), other than those constructed by Tenant, shall be in good operating condition on the date possession of the Premises is
delivered to Tenant. If a non-compliance with such warranty exists as of the delivery of possession, or if one of such Covered Items should malfunction or fail within sixty (60) days
after the delivery of possession to Tenant, Landlord shall, as Landlord’s sole obligation with respect to such matter, promptly after receipt of written notice from Tenant setting forth in
reasonable detail the nature and extent of such non
-
compliance, malfunction or failure, rectify the same at Landlord
’
s expense. If Tenant does not give Landlord the required notice
1.
As used in this Agreement, the following terms have the following meanings:
Period
Annual Basic Rent
Monthly Basic Rent
June 1, 2007
–
June 30, 2007
N/A
Abated
July 1, 2007
–
June 30, 2008
$281,642.40
$23,470.20
July 1, 2008
–
June 30, 2009
$303,357.20
$25,275.60
July 1, 2009
–
May 31, 2010
N/A
$27,081.00