TEMPORARY SUBLEASE, ASSIGNMENT
AND ASSUMPTION OF LEASE
AND CONSENT TO
ASSIGNMENT
THIS TEMPORARY SUBLEASE, ASSIGNMENT AND
ASSUMPTION OF LEASE AND CONSENT TO ASSIGNMENT
(the “Assignment”) is
entered into as of the 7 th day of May, 2008 (the “Date of
this Assignment”), by, between and among WESTPORT OFFICE
PARK, LLC , a California limited liability company (successor
to WESTPORT JOINT VENTURE) (“Landlord”);
METRICSTREAM, INC. , a Delaware corporation (formerly known
as “ZAPLET, INC.” and “Firedrop.com”)
(“Assignor”); and SHUTTERFLY, INC. , a Delaware
corporation (the “Assignee”).
RECITALS
A. By
that certain Lease Agreement dated as of August 12, 1999, between
Landlord, as “Landlord,” and Assignor, as
“Tenant”, as amended by that certain Amendment No. 1 to
Lease dated as of February 28, 2000 (“Amendment No. 1”)
and further amended by that certain Amendment No. 2 to Lease dated
as of October 18, 2002 (collectively, the “Lease”),
Landlord leased to Assignor certain premises consisting of
approximately 37,537 square feet of space (the
“Premises”) (11,847 square feet in Suite 101 on the
first floor and 25,690 square feet in Suite 201 on the second
floor), in the building located 3000 Bridge Parkway, Suite 201,
Redwood City, California (the “Building”).
B. Assignor
desires to (i) sublet a portion of the Premises to Assignee from
June 1, 2008 through and including August 14, 2008, and (ii) assign
its rights and obligations under the Lease unto Assignee effective
as of August 15, 2008, and Assignee desires to assume the rights
and obligations of Assignor under the Lease.
C. Subject
to the terms hereof, Landlord has consented to and does hereby
consent to such sublet and assignment.
NOW, THEREFORE , in consideration of the above-stated premises,
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed
by, between and among Landlord, Assignor and Assignee as
follows:
1. Temporary
Sublease of First Floor to Assignor .
(a) Subject to all
terms, covenants or conditions of this Section 2, Assignor does
hereby sublease to Assignee and Assignee hereby agrees to sublease
from Assignor those certain premises consisting of approximately
11,847 square feet of space (“Temporary Sublease
Premises”) in the first floor of the Building as described in
Amendment No. 1 (the “Temporary
Sublease”). Assignee will also have the
right to 39 unreserved parking spaces available to Assignee under
the Lease. The term of this Temporary Sublease shall
commence as of June 1, 2008 (the “Sublease Effective
Date”) and shall expire on August 14, 2008, unless sooner
terminated pursuant to any provision hereof.
(b) Assignee shall pay
to Assignor, in lawful money of the United States, for each
calendar month of such term, monthly base rent (“Monthly
Rent”) of $29,617.50. In addition, Assignee shall tender to
Assignor, all other amounts which Assignor is required to pay to
Landlord for the Temporary Sublease Premises pursuant to the terms,
covenants and conditions of the Lease (“Additional
Rent”), which amount is currrently $9,347.00 per
month. Monthly Rent and Additional Rent for any
period during the term hereof which is for less than one month
shall be prorated. Amounts paid by Assignee to Assignor
for Monthly Rent and Additional Rent for the period June 1, 2008
through and including August 15, 2008, shall subject to prompt
readjustment upon receipt from Landlord of actual amounts of
Additional Rent due for such period. Monthly Rent and
Additional Rent shall be payable in advance on or before the first
day of each calendar month of the term of this Temporary Sublease,
without deduction, offset, prior notice or demand, in lawful money
of the United States. Monthly Rent shall be paid to
Sublessor at 3000 Bridge Parkway, Redwood Shores, CA 94065,
Attn: Corporate Controller, or at such place as
Sublessor may from time to time designate in writing.
(c) The provisions of the Lease are (except as
otherwise herein specifically provided) hereby incorporated in this
Temporary Sublease with the same effect as if entirely rewritten
herein, and shall fix the rights and obligations of the parties
hereto with respect to the Temporary Sublease Premises with the
same effect as if Assignor and Assignee were, respectively, the
landlord and tenant named in the Lease. Assignee hereby
covenants to perform the covenants and undertakings of tenant under
the Lease during such term of this Temporary Sublease, and agrees
not to do or permit to be done any act which shall result in a
violation of any of the terms, covenants and conditions of the
Lease. Except as otherwise specifically provided herein,
Assignee is to have the benefit of the covenants and undertakings
of the Landlord as landlord in the Lease to the extent the same are
applicable to the Temporary Sublease Premises during the term of
this Temporary Sublease. It is expressly understood and
agreed, however, that Assignor is not in the position to render any
of the services or to perform any of the obligations required of
Assignor by the terms of this Temporary Sublease, and that
performance by Assignor of its obligations hereunder are
conditioned upon due performance by the Landlord of its
corresponding obligations under the Lease. It is further
understood and agreed, therefore, that notwithstanding anything to
the contrary contained in this Temporary Sublease, Assignor shall
not be in default under this Temporary Sublease for failure to
render such services or perform such obligations required of
Assignor by the terms
