8x8 2009 Annual Report Download - page 115

4.1.3 Taxes: Real estate taxes and any other taxes, charges and assessments which are levied with
respect to the Building or the land appurtenant to the Building, or with respect to any improvements, fixtures and equipment
or other property of Landlord, real or personal, located in the Building and used in connection with the operation of the
Building and said land, any payments to any ground lessor in reimbursement of tax payments made by such lessor; and all
fees, expenses and costs incurred by Landlord in investigating, protesting, contesting or in any way seeking to reduce or
avoid increase in any assessments, levies or the tax rate pertaining to any Taxes to be paid by Landlord in any Lease Year.
Taxes shall not include any corporate franchise, capital stock, profits, gift, or estate, inheritance or net income tax, or tax
imposed upon any transfer by Landlord of its interest in this Lease or the Building or any taxes to be paid by Tenant pursuant
to Article 28.
4.2 Tenant shall pay as additional rent for each Lease Year Tenant’ s Proportionate Share of Expenses and
Taxes incurred for such Lease Year.
4.3 The annual determination of Expenses shall be made by Landlord and shall be binding upon Landlord and
Tenant, subject to the provisions of this Section 4.3. Landlord may deliver such annual determination to Tenant via regular
U.S. mail. During the Term, Tenant may review, at Tenant’ s sole cost and expense, the books and records supporting such
determination in an office of Landlord, or Landlord’ s agent, during normal business hours, upon giving Landlord five (5)
days advance written notice within sixty (60) days after receipt of such determination, but in no event more often than once in
any one (1) year period, subject to execution of a confidentiality agreement acceptable to Landlord, and provided that if
Tenant utilizes an independent accountant to perform such review it shall be one of national standing which is reasonably
acceptable to Landlord, is not compensated on a contingency basis and is also subject to such confidentiality agreement. If
Tenant fails to object to Landlord’ s determination of Expenses within ninety (90) days after receipt, or if any such objection
fails to state with specificity the reason for the objection, Tenant shall be deemed to have approved such determination and
shall have no further right to object to or contest such determination. In the event that during all or any portion of any Lease
Year, the Building is not fully rented and occupied Landlord shall make an appropriate adjustment in occupancy-related
Expenses for such year for the purpose of avoiding distortion of the amount of such Expenses to be attributed to Tenant by
reason of variation in total occupancy of the Building, by employing consistent and sound accounting and management
principles to determine Expenses that would have been paid or incurred by Landlord had the Building been at least ninety-
five percent (95%) rented and occupied, and the amount so determined shall be deemed to have been Expenses for such
Lease Year.
4.4 Prior to the actual determination thereof for a Lease Year, Landlord may from time to time estimate
Tenant’ s liability for Expenses and/or Taxes under Section 4.2, Article 6 and Article 28 for the Lease Year or portion thereof.
Landlord will give Tenant written notification of the amount of such estimate and Tenant agrees that it will pay, by increase
of its Monthly Installments of Rent due in such Lease Year, additional rent in the amount of such estimate. Any such
increased rate of Monthly Installments of Rent pursuant to this Section 4.4 shall remain in effect until further written
notification to Tenant pursuant hereto.
4.5 When the above mentioned actual determination of Tenant’ s liability for Expenses and/or Taxes is made
for any Lease Year and when Tenant is so notified in writing, then:
4.5.1 If the total additional rent Tenant actually paid pursuant to Section 4.3 on account of Expenses
and/or Taxes for the Lease Year is less than Tenant’ s liability for Expenses and/or Taxes, then Tenant shall pay such
deficiency to Landlord as additional rent in one lump sum within thirty (30) days of receipt of Landlord’ s bill therefor; and
4.5.2 If the total additional rent Tenant actually paid pursuant to Section 4.3 on account of Expenses
and/or Taxes for the Lease Year is more than Tenant’ s liability for Expenses and/or Taxes, then Landlord shall credit the
difference against the then next due payments to be made by Tenant under this Article 4, or, if this Lease has terminated,
refund the difference in cash.
4.6 If the Commencement Date is other than January 1 or if the Termination Date is other than December 31,
Tenant’ s liability for Expenses and Taxes for the Lease Year in which said Date occurs shall be prorated based upon a three
hundred sixty-five (365) day year. Notwithstanding anything to the contrary contained in this Lease, Tenant shall not be
required to pay Tenant's Proportionate Share of Expenses and Taxes and this Article 4 shall have no force and effect during
the initial Term of this Lease only.
5. SECURITY DEPOSIT. [INTENTIONALLY OMITTED]
6. ALTERATIONS.
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