Shutterfly 2008 Annual Report Download - page 124

9. Landlord hereby represents and warrants to Tenant that it has dealt with no broker, finder or similar person in connection with this Agreement, and Tenant hereby
represents and warrants to Landlord that it has dealt with no broker, finder or similar person in connection with this Agreement, other than NAI BT Commercial (“Landlord’s Broker”)
and Studley, Inc. (“Tenant’s Broker”). Landlord and Tenant shall each defend and indemnify and hold the other harmless with respect to all claims, causes of action, liabilities, losses,
costs and expenses (including without limitation attorneys’ fees) arising from a breach of the foregoing representation and warranty. The commission with respect to this Agreement
shall be paid to Landlord’s Broker by Landlord pursuant to a separate agreement. Landlord’s Broker will pay Tenant’
s Broker a commission pursuant to a separate agreement. Nothing
in this Agreement shall impose any obligation on Landlord to pay a commission or fee to any party other than Landlord’s Broker.
10. Time is of the essence of this Agreement and the provisions contained herein.
11. As additional consideration for this Agreement, Tenant hereby certifies that:
12. Except as specifically provided herein, the terms and conditions of the Original Lease as amended hereby are confirmed and continue in full force and effect. This
Agreement shall be binding on the heirs, administrators, successors and assigns (as the case may be) of the parties hereto. This Agreement and the attached exhibits, which are hereby
incorporated into and made a part of this Agreement, set forth the entire agreement between the parties with respect to the matters set forth herein. There have been no additional oral
or written representations or agreements. Under no circumstances shall Tenant be entitled to any Rent abatement, improvement allowance, leasehold improvements, or other work to
the Premises, or any similar economic incentives that may have been provided to Tenant in connection with entering into the Original Lease, unless specifically set forth in this
Agreement. Tenant agrees that neither Tenant nor its agents or any other parties acting on behalf of Tenant shall disclose any matters set forth in this Agreement or disseminate or
distribute any information concerning the terms, details or conditions hereof to any person, firm or entity without obtaining the express written consent of Landlord. In the case of any
inconsistency between the provisions of the Original Lease and this Agreement, the provisions of this Agreement shall govern and control. Submission of this Agreement by Landlord
is not an offer to enter into this Agreement but rather is a solicitation for such an offer by Tenant. Landlord shall not be bound by this Agreement until Landlord has executed and
delivered the same to Tenant.
13. Effective as of the date hereof, all references to the “Lease” shall refer to the Original Lease, as amended by this Agreement.
14. To satisfy compliance with the Employee Retirement Income Security Act of 1974, as amended, Tenant represents and warrants to Landlord and The Prudential
Insurance Company of America, a New Jersey corporation (“Prudential”), that:
(a) Tenant is not an “employee benefit plan” (as that term is defined in Section 3(3) of ERISA); and
(b) Tenant is not acquiring the Property as a plan asset subject to ERISA but for Tenant’s own investment account; and
(c) Tenant is not an “affiliate” of Prudential as defined in Section IV(b) or PTE 90-1;
(d) Tenant is not a “part in interest” (as that term is defined in Section 3(14) of ERISA) to the Virginia Retirement System; and
(e)
Tenant agrees to keep the identity of the Virginia Retirement System confidential, except to the extent that Tenant may be required to disclose such
information as a result of (i) legal process, or (ii) compliance with ERISA or other Laws governing Tenant’s operations.
IN WITNESS WHEREOF, this Agreement was executed as of the date first above written.
Landlord:
WESTPORT OFFICE PARK LLC
a California limited liability company
By: THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, a
New Jersey corporation, its member
By: /s/ JoLynn Chow Miller
Director & Second Vice President
Tenant:
SHUTTERFLY, INC.,
a Delaware corporation
By: /s/ Stephen E. Recht
Its: Secretary & CFO
(a)
The Original Lease (as amended hereby) is in full force and effect.
(b)
Tenant is in possession of the Premises.
(c)
Rent has been paid through April 30, 3007.
(d)
To Tenant’s knowledge, there are no uncured defaults on the part of Landlord or Tenant under the Original Lease.
(e)
All of Landlord’
s obligations with respect to construction of tenant improvements in the Premises and payment of Tenant improvement allowance have been
satisfied, except those provided for in Paragraph 6 of this Agreement.
(f)
There are no existing offsets or defenses which Tenant has against the enforcement of the Original Lease (as amended hereby) by Landlord.
(g)
All of the representations and warranties of Tenant in the Original Lease are hereby remade.