8x8 2009 Annual Report Download - page 121

13. SERVICES AND UTILITIES. Tenant shall pay for all water, gas, heat, light, power, telephone, sewer, sprinkler
system charges and other utilities and services used on or from the Premises, together with any taxes, penalties, and
surcharges or the like pertaining thereto and any maintenance charges for utilities. Tenant shall furnish all electric light
bulbs, tubes and ballasts, battery packs for emergency lighting and fire extinguishers. Landlord shall in no event be liable for
any interruption or failure of utility services on or to the Premises. Landlord hereby represents that standard fiber optic
infrastructure, including cable is, as of the date of this Lease, installed to the existing main point of entry located in the
existing telco/server room in the Premises (the “Fiber Optic Cable”). Except to the extent caused by the acts or omissions of
Tenant or any Tenant Entities or by any alterations or improvements performed by or on behalf of Tenant, if the Fiber Optic
Cable is not in good condition as of the date possession of the Premises is delivered to Tenant and Tenant provides Landlord
with notice of the same within thirty (30) days following the date Landlord delivers possession (including the date of early
access as provided in Article 2 above) of the Premises to Tenant, Landlord shall be responsible for bringing the same into
good condition.
14. HOLDING OVER. Tenant shall pay Landlord for each day Tenant retains possession of the Premises or part of
them after termination of this Lease by lapse of time or otherwise at the rate (“Holdover Rate”) which shall be One Hundred
and Fifty Percent (150%) of the amount of the Annual Rent (which is, as stated below, pro rated on a daily basis) for the last
period prior to the date of such termination plus Tenant’ s Proportionate Share of Expenses and Taxes under Article 4,
prorated on a daily basis, and also pay all damages sustained by Landlord by reason of such retention. If Landlord gives
notice to Tenant of Landlord’ s election to such effect, such holding over shall constitute renewal of this Lease for a period
from month to month at the Holdover Rate, but if the Landlord does not so elect, no such renewal shall result notwithstanding
acceptance by Landlord of any sums due hereunder after such termination; and instead, a tenancy at sufferance at the
Holdover Rate shall be deemed to have been created. In any event, no provision of this Article 14 shall be deemed to waive
Landlord’ s right of reentry or any other right under this Lease or at law.
15. SUBORDINATION. Without the necessity of any additional document being executed by Tenant for the purpose
of effecting a subordination, this Lease shall be subject and subordinate at all times to ground or underlying leases and to the
lien of any mortgages or deeds of trust now or hereafter placed on, against or affecting the Building, Landlord’ s interest or
estate in the Building, or any ground or underlying lease; provided, however, that if the lessor, mortgagee, trustee, or holder
of any such mortgage or deed of trust elects to have Tenant’ s interest in this Lease be superior to any such instrument, then,
by notice to Tenant, this Lease shall be deemed superior, whether this Lease was executed before or after said instrument.
Notwithstanding the foregoing, Tenant covenants and agrees to execute and deliver within ten (10) business days of
Landlord’ s request such further instruments evidencing such subordination or superiority of this Lease as may be required by
Landlord. Notwithstanding the foregoing, upon written request by Tenant, Landlord will use reasonable efforts to obtain a
non-disturbance, subordination and attornment agreement from Landlord's then current mortgagee on such mortgagee's then
current standard form of agreement. “Reasonable efforts” of Landlord shall not require Landlord to incur any cost, expense
or liability to obtain such agreement, it being agreed that Tenant shall be responsible for any fee or review costs charged by
the mortgagee. Upon request of Landlord, Tenant will execute the mortgagee’ s form of non-disturbance, subordination and
attornment agreement and return the same to Landlord for execution by the mortgagee. Landlord's failure to obtain a non-
disturbance, subordination and attornment agreement for Tenant shall have no effect on the rights, obligations and liabilities
of Landlord and Tenant or be considered to be a default by Landlord hereunder. Notwithstanding the foregoing in this
Section to the contrary, as a condition precedent to the future subordination of this Lease to a future mortgage, Landlord shall
be required to provide Tenant with a non-disturbance, subordination, and attornment agreement in favor of Tenant from any
such mortgagee who comes into existence after the Commencement Date. Such non-disturbance, subordination, and
attornment agreement in favor of Tenant shall provide that, so long as Tenant is paying the rent due under the Lease and is
not otherwise in default under the Lease beyond any applicable cure period, its right to possession and the other terms of the
Lease shall remain in full force and effect. Such non-disturbance, subordination, and attornment agreement may include
other commercially reasonable provisions in favor of the mortgagee, including, without limitation, additional time on behalf
of the mortgagee to cure defaults of the Landlord and provide that (a) neither mortgagee nor any successor-in-interest shall be
bound by (i) any payment of the Monthly Installment of Rent or any other sum due under this Lease for more than one (1)
month in advance or (ii) any amendment or modification of the Lease made without the express written consent of mortgagee
or any successor-in-interest; (b) neither mortgagee nor any successor-in-interest will be liable for (i) any act or omission or
warranties of any prior landlord (including Landlord), (ii) the breach of any warranties or obligations relating to construction
of improvements on the property or any tenant finish work performed or to have been performed by any prior landlord
(including Landlord), or (iii) the return of any security deposit, except to the extent such deposits have been received by
mortgagee; and (c) neither mortgagee nor any successor-in-interest shall be subject to any offsets or defenses which Tenant
might have against any prior landlord (including Landlord). Landlord shall use commercially reasonable efforts to obtain an
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