Shutterfly 2008 Annual Report Download - page 123

within sixty (60) days after the delivery of possession to Tenant, Landlord shall have no obligation with respect to that warranty other than obligations regarding the Covered
Items set forth elsewhere in the Lease.
6. Landlord and Tenant acknowledge that Tenant may desire to make certain Alterations to the Expansion Space in accordance with Article 9 of the Lease (“Tenant’s
Work”). So long as no default shall be declared and existing under the Original Lease (as amended by this Agreement) as of the date Tenant requests reimbursement of the Allowance
(as defined below), Landlord agrees to reimburse Tenant up to, and not to exceed the sum of One Hundred Eight Thousand Five Hundred Forty Dollars ($180,540.00) (the
“Allowance”) (based on a $15.00 prsf of the Premises). Landlord shall pay the Allowance to Tenant upon delivery to Landlord of “Tenant’s Completion Notice” (as defined below)
according to the terms and conditions of this Section 6. The Allowance shall be used to reimburse Tenant for hard and/or soft costs incurred in connection with Tenant’s Work
(“Tenant’s Work Costs”); provided, however, in no event shall the Allowance be used to pay for any of Tenant’s trade fixtures, equipment or inventory. Upon the completion of
Tenant’s Work, Tenant shall submit to Landlord a written notice indicating that Tenant has completed the construction and performance of Tenant’s work in accordance with the
provisions of Article 9 of the Original Lease, as amended by this Agreement, which notice shall be accompanied by all of the following (collectively, “Tenant’s Completion Notice”):
(i) copies of paid invoices and final, unconditional lien waivers from Tenant’s general contractor and all subcontractors and material suppliers, showing that full payment has been
received for the construction of Tenant’s Work; (ii) certification from Tenant’s architect that all of Tenant’s Work has been completed substantially in accordance with the plans and
specifications therefor (approved by Landlord, to the extent Landlord’
s approval of such plans and specifications was required under Article 9 of the Original Lease, as amended by this
Agreement) and all local governmental and quasi-governmental authorities with jurisdiction; and (iii) a copy of the building permit for Tenant’s Work has been finally approved. The
Allowance shall be available for a single reimbursement to Tenant during the period from June 1, 2007 through December 31, 2007 (the “Window”).
Any portion of the Allowance not
requested by Tenant within the Window shall be deemed forfeited by Tenant and shall no longer be available for disbursement to or for the account of Tenant. The parties understand
and agree that under no circumstances shall Landlord, either by this Agreement or otherwise, have any responsibility for the space planning design. In approving of any space planning
or construction plans and specifications, Landlord is doing so only for its own benefit and does not thereby accept any responsibility that such design and construction has been
completed in conformance with all applicable laws, is free from any errors or omissions by the professionals completing such work, is suitable for the purpose for which it is designed
or constructed or is otherwise in conformance with recognized industry standards and requirements for such work.
7. The following new Paragraph 54 is added to the Lease:
54. TENANT’S RIGHT OF FIRST OFFER
54.1 As used herein, “Offer Space” means any space in the 3000 Bridge Building. Landlord shall give Tenant a written notice (the “Availability Notice”
)
identifying the particular Offer Space (the “Specific Offer Space”)
that is Available (as defined below). Landlord shall not be obligated to given an Availability Notice until
Landlord determines that Landlord shall commence the marketing of any of the Offer Space because such space shall become Available for lease to third parties. As used
herein, “Available”
means that the space (i) is not part of the Premises, (ii) is not then subject to a lease, (iii) is not then subject to any rights of tenant to renew their lease or
expand their premises as set forth in their lease, and (iv) is not then subject to any negotiations between Landlord and an existing tenant. Without limiting the foregoing, Offer
Space shall not be Available if it is subject to a renewal or extension right of a tenant, whether or not such right or extension is pursuant to an express written provision in its
lease, regardless of whether any such renewal or extension is consummated pursuant to a lease amendment or a new lease.
54.2 The location and configuration of the Specific Offer Space shall be determined by Landlord in its reasonable discretion; provided that Landlord shall have
no obligations to designate Specific Offer Space that would result in any space not included in the Specific Offer Space being not Configured for Leasing (as defined
below). For purposes of this Lease, “Configured for Leasing”
means the applicable space must have convenient access to the central corridor on the applicable floor and must
have a size and configuration that complies with all applicable building codes and other laws and is such that Landlord
judges, in its reasonable discretion, that Landlord will
be able to lease such space to a third party. The Availability Notice shall:
54.3 If Tenant wishes to exercise Tenant’
s rights set forth in this Article 54 with respect to the Specific Offer Space, then within five (5) business days of
delivery of the Availability Notice to Tenant, Tenant shall deliver irrevocable notice to Landlord (the “First Offer Exercise Notice”)
offering to lease the Specific Offer Space
on the terms and conditions as may be specified by Landlord in the Availability Notice.
54.4 In the event Tenant fails to give a First Offer Exercise Notice in response to any Availability Notice, Tenant shall have no further rights to receive an
Availability Notice and Tenant’
s rights under this Article 54 shall terminate and Landlord shall be free to lease the Offer Space to anyone on any terms at any time during the
Term, without any obligation to provide Tenant with any further right to lease that space.
54.5 If Tenant timely and validly gives the First Offer Exercise Notice in response to any Availability Notice, Tenant shall have no further rights to receive an
Availability Notice and Tenant’
s rights under this Article 54 shall terminate and Landlord shall be free to lease the Offer Space to anyone on any terms at any time during the
Term, without any obligation to provide Tenant with any further right to lease that space.
54.7 Tenant’s rights and Landlord’
s obligations under this Article 54 are expressly subject to and conditioned upon there not existing a default by Tenant under
this Lease, either at the time of delivery of the First Offer Exercise Notice or at the time the Specific Offer Space is to be added to the Premises.
54.8 It is understood and agreed that Tenant’
s rights under this Article 54 are personal to Tenant and not transferable. In the event of any assignment or
subletting of the Premises or any part thereof, this expansion right shall automatically terminate and shall thereafter be null and void.
8. Except as otherwise provided herein, all of the terms and conditions of the Original Lease shall continue to apply during the Extension Term; provided, however, that
there shall be no rent credit, and that there shall be no improvement allowance, Landlord construction obligations or other initial concessions with respect to the Extension Term, except
as provided in Paragraph 6 of this Agreement, and Tenant shall have no further option to extend the term.
(a) Describe the particular Specific Offer Space (including rentable area, useable area and location);
(b) Include an attached floor plan identifying such space;
(c) State the date (the “Specific Offer Space Delivery Date”) the space will be available for delivery to Tenant; and
(d)
Specify the Base Rent for the Specific Offer Space.
(a) The Specific Offer Space shall be part of the Premises under this Lease (so that the term “Premises”
in this Lease shall refer to the space in the Premises
immediately before the Specific Offer Space Delivery Date plus the Specific Offer Space);
(b) Base Rent for the Specific Offer Space shall be specified in the Availability Notice.
(c) Tenant’
s lease of the Specific Offer Space shall be on the same terms and conditions as affect the original Premises from time to time, except as otherwise
provided in this section. Tenant’
s obligation to pay Rent with respect to the Specific Offer Space shall begin on the Offer Space Delivery Date. The Offer
Space shall be leased to Tenant in its “as-is”
condition and Landlord shall not be required to construct improvements in, or contribute any tenant improvement
allowance for, the Offer Space. Tenant’
s construction of any improvements in the Specific Offer Space shall comply with the terms of this Lease concerning
alterations.
(d)
If requested by Landlord, Landlord and Tenant shall confirm in writing the addition of the Specific Offer Space to the Premises on the terms and conditions
set forth in this section, but Tenant’
s failure to execute or delivery such written confirmation shall not affect the enforceability of the First Offer Exercise
Notice.