sfly2008k-10_23exhibit.htm


    Exhibit
10.23

     

    


      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 7th  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 of this Temporary Sublease
which are the responsibility of Landlord as landlord under the Lease, but
Sublessor agrees to take all reasonable measures to cause Landlord to perform
said obligations.  The term “reasonable measures” shall not include
legal action against the Landlord for Landlord’s failure to so perform unless
Sublessee agrees to pay all costs and expenses in connection
therewith.

      


      2. Assignment and Assumption of
Lease.  Effective as of August 15, 2008 (the “Assignment
Effective Date”), Assignor hereby transfers, assigns and conveys to Assignee all
of the right, title and interest of Assignor in, to and under the Lease, and all
of Assignor’s obligations under the Lease.  Effective as of the
Assignment Effective Date, Assignee hereby accepts, assumes and agrees to
perform all of the obligations of “Tenant” arising under or out of the Lease
from and after the Assignment Effective Date, and shall fully comply with all
terms and conditions of the Lease to be performed by the Tenant under the Lease
as if Assignee were a signatory thereto.  Assignee accepts the
Premises, “AS-IS”, in its present condition, and without any representation or
warranty as to the condition of the Building or Premises, or as to the use or
occupancy which may be made thereof.

       

      3. Warranties and
Representations.  Assignor warrants and represents to Assignee
the following:

       

      (a) Assignor,
to the best of its knowledge, is in full and complete compliance with all of its
obligations under the Lease.

       

      (b) The
Lease, as described above, has not been otherwise amended or modified, either
orally or in writing, and represents the entire agreement between Landlord and
Assignor as to the Premises.

       

      (c) Assignor,
to the best of its knowledge, is not in default under the Lease, and no state of
facts exists which, but for the giving of notice and/or the passage of time,
would be a default by Assignor  under the Lease.

       

      (d) Assignor
has not received notice from the Landlord of any default under the
Lease.

       

      (e) Assignor
(i) has not received notice from the Landlord that Assignor shall be obligated
to remove any of its alterations, additions or improvements upon expiration of
the Lease, and (ii) requested such determination from Landlord at the time it
requested Landlord’s approval of such alterations, additions or
improvements.

       

      (f) Neither
the Lease nor any rights of the “Tenant” under the Lease have been previously
assigned by Assignor.  The Premises have not been sublet by Assignor,
except as listed in Exhibit
A attached hereto (“List of Subleases”).  No person or entity
other than Assignee is entitled to possess, use or occupy the Premises pursuant
to any license, concession or other agreement, whether oral or written, except
for the subtenants set forth in the List of Subleases.  Assignor has
terminated in writing all subleases and/or occupancy agreements for all
subtenants and other occupanats described in the List of Subleases (except for
the sublease with Aster Data Systems).  Neither the Tenant’s estate
under the Lease nor any of its rights under the Lease have been mortgaged or
pledged to any third party, whether as security for a loan or
otherwise.

       

      4. Indemnities.  Assignor
shall indemnify, hold harmless and defend Assignee from and against any and all
claims, demands, actions, losses, costs, damages or expenses (including
resonable attorneys’ fees) asserted against or suffered by Assignee and arising
out Assignor’s obligations accruing under the Lease prior to the Assignment
Effective Date, except for Assignee’s obligations accruing under the Temporary
Sublease pursuant to Section 1 above.  Assignee shall indemnify, hold
harmless and defend Assignor from and against any and all claims, demands,
actions, losses, costs, damages or expenses (including reasonable attorneys’
fees) asserted against or suffered by Assignor and arising out Assignee’s
obligations accruing (i) under the Lease on and after the Assignment Effective
Date, and (ii) under the Temporary Sublease pursuant to Section 1
above.

       

      5. Further Assignment or
Subletting.  This Assignment shall not be deemed or construed
as a consent by Landlord to, or as permitting, any other or further assignment
of the Lease or subletting of the Premises by Assignee or anyone claiming under
or through Assignee, and no other or further assignment or sublease shall be
made by Assignee or anyone claiming under or through Assignee, without
compliance in each instance with all of the requirements set forth in the
Lease.

       

      6. No Release.  This
Assignment shall not be deemed to release or discharge, in any manner, the
liability of Assignor, as “Tenant,” under the Lease, and Assignor’s liabilities
shall remain in full force and effect and to the same extent as existed prior to
this Assignment.

       

      7. Assumption of
Liability.   Assignor and Assignee shall, as of the
Assignment Effective Date, be jointly and severally liable for performance of
all of the obligations of the “Tenant” under the Lease.

       

      8. Security
Deposit.  The parties agree that (i) Assignor shall look
directly to the Landlord for the return to Assignor of the security deposit
currently held by Landlord under the Lease (the “Existing Security Deposit”),
and (ii) Assignee shall have no obligation with respect to the return of the
Existing Security Deposit to Assignor.

       

      9. Cubicles, Security System and Moving
Expenses.

       

      (a) Assignor,
as of the Sublease Effective Date as to the first floor cubicles and as of the
Assignement Effective Date as to the second floor cubicles, hereby transfers,
assigns and conveys to Assignee, all of its right, title and interest, in and to
all cubicles located in the Premises as of the Date of this Amendment (the
“Remaining Cubicles”) and agrees to leave the Remaining Cubicles in the Premises
for Assignee’s use.   Assignor hereby warrants and represents
that Assignor holds good title to the Remaining Cublices, free and clear of any
liens, security interests, charges, encumbrances or any other
interests.

       

      (b) Intentionally
deleted.

       

      (c) Assignee
shall reimburse Assignor for an amount not to exceed $40,000.00 for actual
moving expenses incurred by Assignor to relocate its business from the
Premises.  Assignee shall reimburse Assignor for such moving expenses
within thirty (30) days of receipt of written demand from Assignor, together
with evidence reasonably satisfactory to Assignee substantiating such expenses,
e.g., paid invoices.

       

      10. Notices.  Any notice
or demand given under this Assignment shall be given as follows: (a) to Assignor
at the address for notices to “Tenant” given in the Lease, and to Assignee at
the following address(es):  Shutterfly, 2800 Bridge Parkway, Redwood
City, CA 94065; and (b) to Landlord at the address for notices to Landlord given
in the Lease.

       

      11. Conditions
Precedent.  (a) A condition precedent to the effectiveness of
this Assignment is that the Landlord under the Lease shall have consented hereto
as set forth in the signature page below.  If such consent is not
obtained by May 15, 2008, this Assignment shall, at the option of Assignor or
Assignee upon written notice to the other, be null and void and of no force or
effect.

       

      (b)   A
condition precedent to the effectiveness of this Assignment is that (i) Assignor
shall have terminated in writing all subleases and/or occupancy agreements for
all subtenants and other occupants of the Premises (except for the sublease with
Aster Data Systems), and (ii) all such subtenants and occupants shall have
vacated the Premises (except for the sublease with Aster Data
Systems.   If  the condition in (i) is not satisfied by
May 15, 2008, this Assignment shall, at the option of Assignee upon written
notice to Assignor, be null and void and of no force or effect. If the condition
in (ii) for subtenants and occupants in the Temporary Sublease Premises is not
met by May 31, 2008, and/or for subtenants and occupants in suite 201 is not met
by August 14, 2008, this Assignment shall, at the option of Assignee upon
written notice to Assignor, be null and void and of no force or
effect.

       

      12.           Counterparts.  This
Assignment may be executed by the parties signing different counterparts of this
Assignment, which counterparts together shall constitute the agreement of the
parties.

       

      [NEXT
PAGE IS SIGNATURE PAGE]

       


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      


       

      IN
WITNESS WHEREOF, the parties hereto have executed this Assignment as of the Date
of this Assignment set forth above.

       

      
        
          
            	
                    ASSIGNOR:

                     

                    METRICSTREAM,
      INC.

                     

                    By: /s/Shellye
      Archambeau

                    Name:
      Shellye Archambeau

                    Title:
      CEO

                     

                     

                  
	
                    ASSIGNEE:

                     

                    SHUTTERFLY,
      INC.

                     

                    By: /s/Doug
      Appleton

                    Name:
      Doug Appleton

                    Title:
      VP, Legal

                     

                     

                  


          

        

      

      


       


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      Exhibit
A

       

      (List of
Subleases)

       

      
        	
                1.  

              	
                Aster
      Data Systems.

              


      

       

      
        	
                2.  

              	
                Moka5.

              


      

       

      
        	
                3.  

              	
                Regalix.

              


      

       

      
        	
                4.  

              	
                cFares,
      Inc.