8x8 2009 Annual Report Download - page 125

20.1.1 Tenant, Tenant as debtor-in-possession, and any trustee or receiver of Tenant’ s assets (each a
“Tenant’ s Representative”) shall have no greater right to assume or assign this Lease or any interest in this Lease, or to
sublease any of the Premises than accorded to Tenant in Article 9, except to the extent Landlord shall be required to permit
such assumption, assignment or sublease by the provisions of such Debtor’ s Law. Without limitation of the generality of the
foregoing, any right of any Tenant’ s Representative to assume or assign this Lease or to sublease any of the Premises shall be
subject to the conditions that:
20.1.1.1 Such Debtor’ s Law shall provide to Tenant’ s Representative a right of assumption of
this Lease which Tenant’ s Representative shall have timely exercised and Tenant’ s Representative shall have fully cured any
default of Tenant under this Lease.
20.1.1.2 Tenant’ s Representative or the proposed assignee, as the case shall be, shall have
deposited with Landlord as security for the timely payment of rent an amount equal to the larger of: (a) three (3) months’ rent
and other monetary charges accruing under this Lease; and (b) any sum specified in Article 5; and shall have provided
Landlord with adequate other assurance of the future performance of the obligations of the Tenant under this Lease. Without
limitation, such assurances shall include, at least, in the case of assumption of this Lease, demonstration to the satisfaction of
the Landlord that Tenant’ s Representative has and will continue to have sufficient unencumbered assets after the payment of
all secured obligations and administrative expenses to assure Landlord that Tenant’ s Representative will have sufficient funds
to fulfill the obligations of Tenant under this Lease; and, in the case of assignment, submission of current financial statements
of the proposed assignee, audited by an independent certified public accountant reasonably acceptable to Landlord and
showing a net worth and working capital in amounts determined by Landlord to be sufficient to assure the future performance
by such assignee of all of the Tenant’ s obligations under this Lease.
20.1.1.3 The assumption or any contemplated assignment of this Lease or subleasing any part
of the Premises, as shall be the case, will not breach any provision in any other lease, mortgage, financing agreement or other
agreement by which Landlord is bound.
20.1.1.4 Landlord shall have, or would have had absent the Debtor’ s Law, no right under
Article 9 to refuse consent to the proposed assignment or sublease by reason of the identity or nature of the proposed assignee
or sublessee or the proposed use of the Premises concerned.
21. QUIET ENJOYMENT. Landlord represents and warrants that it has full right and authority to enter into this Lease
and that Tenant, while paying the rental and performing its other covenants and agreements contained in this Lease, shall
peaceably and quietly have, hold and enjoy the Premises for the Term without hindrance or molestation from Landlord
subject to the terms and provisions of this Lease. Landlord shall not be liable for any interference or disturbance by other
tenants or third persons, nor shall Tenant be released from any of the obligations of this Lease because of such interference or
disturbance.
22. CASUALTY.
22.1 In the event the Premises or the Building are damaged by fire or other cause and in Landlord’ s reasonable
estimation such damage can be materially restored within two hundred thirty (230) days following the date of the casualty,
Landlord shall forthwith repair the same and this Lease shall remain in full force and effect, except that Tenant shall be
entitled to a proportionate abatement in rent from the date of such damage. Such abatement of rent shall be made pro rata in
accordance with the extent to which the damage and the making of such repairs shall interfere with the use and occupancy by
Tenant of the Premises (including if the same prevents access to the Premises) from time to time. Within forty-five (45) days
from the date of such damage, Landlord shall notify Tenant, in writing, of Landlord’ s reasonable estimation of the length of
time within which material restoration can be made, and Landlord’ s determination shall be binding on Tenant. For purposes
of this Lease, the Building or Premises shall be deemed “materially restored” if they are in such condition as would not
prevent or materially interfere with Tenant’ s use of the Premises for the purpose for which it was being used immediately
before such damage.
22.2 If such repairs cannot, in Landlord’ s reasonable estimation, be made within two hundred thirty (230) days
following the date of the casualty, Landlord and Tenant shall each have the option of giving the other, at any time within
thirty (30) days after Landlord’ s notice of estimated restoration time, notice terminating this Lease as of the date of such
damage. In the event of the giving of such notice, this Lease shall expire and all interest of the Tenant in the Premises shall
terminate as of the date of such damage as if such date had been originally fixed in this Lease for the expiration of the Term.
In the event that neither Landlord nor Tenant exercises its option to terminate this Lease, then Landlord shall repair or restore
such damage, this Lease continuing in full force and effect, and the rent hereunder shall be proportionately abated as provided
in Section 22.1.
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