8x8 2009 Annual Report Download - page 132

comparison lease or amendment, such as rent abatements, construction costs and other concessions and the manner, if any, in
which the landlord under any such lease is reimbursed for operating expenses and taxes.
41. ACCELERATION OPTION.
41.1 Tenant shall have the right to accelerate the Termination Date (“Acceleration Option”) of this Lease, with
respect to the entire Premises only, from the expiration of the thirty-sixth (36th) full calendar month of the Term to the
expiration of the twelfth (12th), eighteenth (18th), twenty-fourth (24th) or thirtieth (30th) full calendar month of the Term, at
Tenant’ s option (the “Accelerated Termination Date”), if:
41.1.1 There is no default by Tenant under this Lease beyond any applicable notice and cure period at the
date Tenant provides Landlord with an Acceleration Notice (hereinafter defined); and
41.1.2 No part of the Premises is sublet for a term extending past the Accelerated Termination Date; and
41.1.3 This Lease has not been assigned (except to a Permitted Transferee); and
41.1.4 Landlord receives notice of acceleration (“Acceleration Notice”) not less than six (6) full calendar
months prior to the applicable Accelerated Termination Date.
41.2 If Tenant exercises its Acceleration Option, within thirty (30) days after Tenant’ s delivery to Landlord of
Tenant’ s Acceleration Notice, Tenant shall pay to Landlord the sum of an amount equal to the unamortized portion of all of
the following: (a) any leasing commissions, (b) the Initial Alterations, (c) the HVAC Allowance, if any, and (d) the
Allowance (as defined in Exhibit B), (clauses (a), (b), (c) and (d) are collectively referred to herein as the “Acceleration Fee”)
as a fee in connection with the acceleration of the Termination Date and not as a penalty; provided that the Acceleration Fee
shall be increased by an amount equal to the unamortized portion of any leasing commissions, tenant improvements and
allowances or other concessions incurred by Landlord in connection with any additional space other than the initial Premises
leased by Tenant under this Lease and that is subject to acceleration hereunder. Landlord estimates that, as of the end of the
12th month of the Term, the Acceleration Fee shall be $7.10 per rentable square foot of the Premises (as the same is initially
set forth in this Lease). The foregoing estimate of the Acceleration Fee assumes a Wall Street Journal Prime lending rate of
3.25% and a full disbursement of the HVAC Allowance and the Allowance as of the Commencement Date of this Lease.
Tenant shall remain liable for all Monthly Installments of Rent, additional rent and all other sums due under this Lease up to
and including the Accelerated Termination Date even though billings for such may occur subsequent to the Accelerated
Termination Date. The “unamortized portion” of any of the foregoing shall be determined using an interest rate with interest
at one percent (1%) in excess of the Wall Street Journal prime lending rate announced from time to time
41.3 If Tenant, subsequent to providing Landlord with an Acceleration Notice, defaults in any of the provisions
of this Lease (including, without limitation, a failure to pay the Acceleration Fee due hereunder), and such default is not
cured within the applicable note and cure period set forth herein, Landlord, at its option, may (i) declare Tenant's exercise of
the Acceleration Option to be null and void, or (ii) continue to honor Tenant’ s exercise of its Acceleration Option, in which
case, Tenant shall remain liable for the payment of the Acceleration Fee and for all Monthly Installments of Rent and any
additional rent and other sums due under this Lease up to and including the Accelerated Termination Date even though
billings for such may occur subsequent to the Accelerated Termination Date. Further, in the event that Landlord shall declare
Tenant's exercise of the Acceleration Option to be null and void as provided in clause (i) above, Tenant shall protect,
indemnify and hold Landlord and the Landlord Entities harmless from and against any and all loss, claims, liability or costs
(including court costs and attorney’ s fees) incurred by reason of such nullification of Tenant’ s Acceleration Option,
including, without limitation, any claims by any potential replacement tenants for the Premises.
41.4 As of the date Tenant provides Landlord with an Acceleration Notice, any unexercised rights or options of
Tenant to renew the Term of this Lease or to expand the Premises (whether expansion options, rights of first or second
refusal, rights of first or second offer, or other similar rights), and any outstanding tenant improvement allowance not claimed
and properly utilized by Tenant in accordance with this Lease as of such date, shall immediately be deemed terminated and
no longer available or of any further force or effect.
42. CONSULTANT FEE. Provided Tenant is not in default under this Lease beyond any applicable notice and cure
periods and provided that this Lease is fully executed on or before May 1, 2009, Landlord shall provide Tenant with a
consultant fee in the amount not to exceed $5,000.00 (the “Consultant Fee”) for Tenant’ s transaction costs with respect to
this Lease. Landlord shall disburse the Consultant Fee, at Tenant’ s option, either directly to Tenant or to the consultant
performing the services. If such Consultant Fee is paid to Tenant and not directly to the consultant, Landlord shall pay such
Consultant Fee within thirty (30) days after receipt of an invoice or other supporting documentation evidencing the actual
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