Shutterfly 2008 Annual Report Download - page 93

designated by Landlord, any instrument or instruments required to give effect to the provisions of this paragraph.
22. ASSIGNING AND SUBLETTING . Tenant shall not assign, sublet, mortgage, pledge or encumber this Lease, the Premises, or any interest in the whole or in
any portion thereof, directly or indirectly, without the prior written consent of Landlord, which consent shall not be unreasonably withheld, delayed or conditioned. If Tenant makes
any such assignment, sublease, mortgage, pledge or encumbrance with Landlord’s written consent, Tenant will still remain primarily liable for the performance of all terms of this
Lease and one-half (1/2) of any rental or any net fees or charges received by Tenant (after deduction by Tenant of Tenant’s third-party brokerage fees, legal fees, architectural fees,
advertising costs and the reasonable costs of refitting or improving the Premises for the proposed assignee or subtenant, and free rent and improvement allowances granted, in
connection with such transaction) in excess of the Annual Rental payable to Landlord hereunder shall be also paid to Landlord as further rental under this Lease. Landlord’
s consent to
one assignment or sublease will not waive the requirement of its consent to any subsequent assignment or sublease as required herein. Notwithstanding the foregoing, Tenant shall
have the absolute right to assign this Lease and/or sublet any part or all of the Premises, without the Landlord's consent, to any of Tenant's subsidiary(s), joint venture partner(s),
partnership(s), or other affiliated or related entity(s), and/or to a successor(s) in interest to any part and/or all of Tenant's business including, without limitation, a sale of assets
("Permitted Transfer"). A Permitted Transfer shall include a merger or consolidation with another entity and/or an assignment or subletting to another entity which is controlled by
Tenant or is under common control of Tenant and other entity. Regardless of Landlord's consent, no assignment or sublease shall release Tenant of Tenant's obligations hereunder.
23. TRANSFER OF LANDLORD’S INTEREST
. If Landlord shall sell, assign or transfer all or any part of its interest in the Premises or in this Lease to a successor in
interest which expressly assumes the obligations of Landlord hereunder, then Landlord shall thereupon be released or discharged from all covenants and obligations hereunder which
accrue after such sale, assignment or transfer, and Tenant shall look solely to such successor in interest for performance of all of Landlord’
s obligations which accrue after such sale,
assignment or transfer. Tenant’s obligations under this Lease shall in no manner be affected by Landlord’
s sale, assignment, or transfer of all or any part of such interest(s) of Landlord,
and Tenant shall thereafter attorn and look solely to such successor in interest as the Landlord hereunder.
24. COVENANT OF QUIET ENJOYMENT
. Landlord represents that it has full right and authority to lease the Premises and Tenant shall peacefully and quietly hold
and enjoy the Premises for the full term hereof so long as Tenant does not default in the performance of any of the terms hereof beyond the expiration of any applicable cure period.
25. ESTOPPEL CERTIFICATES
. Within ten (10) business days after a request by Landlord, Tenant shall deliver a written estoppel certificate, in form supplied by or
acceptable to Landlord, certifying any facts that are then true with respect to this Lease, including without limitation that this Lease is in full force and effect, that no default exists on
the part of Landlord or Tenant (or listing such default in case any exists), that Tenant is in possession, that Tenant has commenced the payment of rent, and that Tenant claims no
defenses or offsets (or listing such defenses or offsets in case any exists) with respect to payment of rentals under this Lease. Likewise, within ten (10) business days after a request by
Tenant, Landlord shall deliver to Tenant a similar estoppel certificate covering such matters as are reasonably required by Tenant. Landlord and Tenant shall each agree not to make
such request more than 2 times per calendar year.
26. LIENS .
( a) Tenant shall do all things necessary to prevent the filing of any mechanics’, materialmen’
s or other types of liens whatsoever, against all or any part of the
Premises by reason of any claims made by, against, through or under Tenant. If any such lien is filed against the Premises, Tenant shall either cause the same to be discharged of record
within thirty (30) days after filing or, if Tenant in its discretion and in good faith determines that such lien should be contested, it shall furnish such security as may be necessary to
prevent any foreclosure proceedings against the Premises during the pendency of such contest. If Tenant shall fail to discharge such lien within said time period or fail to furnish such
security, then Landlord may at its election, in addition to any other right or remedy available to it, discharge the lien by paying the amount claimed to be due or by procuring the
discharge by giving security or in such other manner as may be allowed by law. If Landlord acts to discharge or secure the lien then Tenant shall immediately reimburse Landlord for
all sums paid and all costs and expenses (including reasonable attorneys’
fees) incurred by Landlord involving such lien together with interest on the total expenses and costs at the
maximum lawful rate. It is specifically agreed to by the parties that Tenant is not acting as an agent for Landlord and that Landlord shall not be liable for the contracts or liabilities of
Tenant.
(b) Landlord hereby waives any and all liens Landlord may otherwise be entitled to against any and all of Tenant’s personal property, equipment and other assets.
27. MEMORANDUM OF LEASE . If requested by Tenant, Landlord shall execute a recordable Memorandum or Short Form Lease, prepared at Tenant’
s expense,
specifying the exact term of this Lease and such other terms as the parties shall mutually determine.
28. FORCE MAJEURE
. In the event Landlord or Tenant shall be delayed, hindered or prevented from the performance of any act required hereunder, by reason of
governmental restrictions, scarcity of labor or materials, strikes, fire, or any other reasons beyond its reasonable control, the performance of such act shall be excused for the period of
delay, and the period for performance of any such act shall be extended as necessary to complete performance after the delay period, provided, however, that Landlord’s or Tenant’
s
performance of its obligations under this Lease shall not otherwise be affected or diminished . However, the provisions of this paragraph shall in no way be applicable to Tenant’
s
obligations to pay Annual Rental or Landlord’s or Tenant’s obligations to pay any other sums, monies, costs, charges or expenses required by this Lease.
29. REMEDIES CUMULATIVE -- NONWAIVER
. Unless otherwise specified in this Lease, no remedy of Landlord or Tenant shall be considered exclusive of any
other remedy, but each shall be distinct, separate and cumulative with other available remedies. Each remedy available under this Lease or at law or in equity may be exercised by
Landlord or Tenant from time to time as often as the need may arise. No course of dealing between Landlord and Tenant or any delay or omission of Landlord or Tenant in exercising
any right arising from the other party’s default shall impair such right or be construed to be a waiver of a default.
30. HOLDING OVER
. Tenant shall have the right to holdover in possession of the Premises for up to six (6) months under the same terms and conditions of this
Lease, with the exception that Tenant shall be allowed to vacate the Premises at any time during such six (6) month period after giving Landlord 30 days prior written notice. After
such six (6) month period, if Tenant continues to remain in possession of the Premises or any part thereof, whether with or without Landlord’
s acquiescence, (i) Tenant shall be deemed
only a tenant at will and there shall be no renewal of this Lease without a written agreement signed by both parties specifying such renewal, (ii) the “monthly”
rental payable by Tenant
during any such tenancy at will period shall be one hundred twenty-
five percent (125%) of the monthly installments of Annual Rental payable during the final year immediately
preceding such expiration, and (iii) Tenant shall also remain liable for any and all direct damages suffered by Landlord as a result of any holdover without Landlord’
s unequivocal
written acquiescence.
31. NOTICES
. Any notice allowed or required by this Lease shall be deemed to have been sufficiently served if the same shall be in writing and (i) placed in the
United States mail, via certified mail or registered mail, return receipt requested, with proper postage prepaid or (ii) delivered to any nationally recognized overnight courier, and
addressed as follows:
c/o American Asset Corporation
3700 Arco Corporate Drive, Suite 350
Charlotte, North Carolina 28273
Attention: President with a copy to General Counsel
AS TO TENANT: Shutterfly, Inc.
2800 Bridge Parkway
Redwood City, CA 94065
Attention: Chief Financial Officer with a copy to Vice President, Legal
The addresses of Landlord and Tenant and the party, if any, to whose attention a notice or copy of same shall be directed may be changed or added from time to time by either
party giving notice to the other in the prescribed manner.
32.
LEASING COMMISSION
. Landlord and Tenant represent and warrant each to the other that they have not dealt with any broker(s) or any other person claiming
AS TO LANDLORD:
Shopton Ridge Business Park Limited Partnership