eTrade 2000 Annual Report Download - page 178

practices and procedures, routine cleaning and servicing, waxing, polishing, adjusting, repair, refurbishment and replacement at a
standard of appearance and utility and as often as appropriate for Class A corporate and professional office occupancies in the Palo
Alto/Menlo Park office market. The term “reasonable wear and tear”
would thus encompass the natural fading of painted surfaces, fabric and materials over time, and carpet wear caused by normal foot
traffic. The term “reasonable wear and tear” shall not include any damage or deterioration that could have been prevented by Tenant’ s
employment of ordinary prudence, care and diligence in the occupancy and use of the Premises and the performance of all of its
obligations under this Lease. Items not considered reasonable wear and tear hereunder include the following for which Tenant shall
bear the obligation for repair and restoration (except to the extent caused by the gross negligence or willful misconduct of Landlord or
its employees or agents), (i) excessively soiled, stained, worn or marked surfaces or finishes; (ii) damage, including holes in building
surfaces (e.g., cabinets, doors, walls, ceilings and floors) caused by the installation or removal of Tenant’ s trade fixtures, furnishings,
decorations, equipment, alterations, utility inst a llations, security systems, communications systems (including cabling, wiring and
conduits), displays and signs; (iii) damage to any component, fixture, hardware, system or component part thereof within the Premises,
and any such damage to the Building, Phase or Project, caused by Tenant or its agents, contractors or employees, and not fully
recovered by Landlord from insurance proceeds. Tenant shall not commit or allow any waste or damage to be committed on any
portion of the Premises, Building, Phase or Project.
8.3. Failure to Maintain, Repair or Restore. The timely performance by Tenant of Tenant’ s duties to maintain, repair and restore
the Premises is essential to the preservation of Landlord’ s property value and the security interests of Landlord’ s mortgagee. If, upon
expiration of the Term, Tenant has failed to fully perform its obligations under this Section 8 or Sections 9 or 11.2, Landlord shall
have the right, but not the obligation, to perform any obligation of Tenant (notice to Tenant) as provided in Section 19.16 hereof, and
Tenant shall reimburse Landlord for all costs incurred by Landlord related thereto (including overtime or premium time labor charges
as determined by Landlord in its sole discretion). Tenant shall pay to Landlord all costs, fees and penalties owing, due, paid or payable
by Landlord to any lender or mortgagee as a result of Tenant’ s failure to perform its obligations under this Section 8 or Sections 9 or
11.2, and any fees, penalties, loss, costs, expenses or liabilities whether paid or accrued by Landlord as a result of Landlord’ s failure to
timely deliver all or a portion of the Premises for occupancy by one or more successor or replacement tenants to the extent such failure
is due to Tenant’ s failure to perform hereunder. In addition, if Tenant fails to fully perform its obligations pursuant to this Section 13
or Sections 9 or 11.2 by the end of the Term , then for each day required by Landlord to perform such obligations (or each day that
would reasonably be required by Landlord to perform such obligations if Landlord elected to do so), Tenant shall pay to Landlord as
liquidated damages an amount equal to one thirtieth (1/30th) of the product of (i) the Default Percentage (as stated in the Basic Lease
Information) and (ii) the monthly Rent due under this Lease during the last month of the Term (hereinafter referred to as the “
Liquidated Damages Amount”). The Liquidated Damages Amount is intended to compensated Landlord for any loss of rent incurred
by Landlord during the period of time required by Landlord to perform Tenant’ s unperformed obligations under this Section 8 and
Sections 9 and 11.2 (or that would reasonably be required by Landlord to perform such obligations had Landlord elected to do so).
Landlord and Tenant agree that Landlord’ s actual damages for loss of rents or opportunity as a result of Tenant’ s failure to complete
its obligations pursuant to this Section 8 and Sections 9 and 11.2 would be difficult or impossible to determine because, inter alia ,
where a tenant has failed to perform such obligations, it is difficult for a landlord effectively to market that tenant’ s premises to
prospective tenants, and the Liquidated Damages Amount is the best estimate of the amount of damages Landlord would suffer in the
nature of loss of rent or opportunity for any such failure by Tenant. Nothing contained in this paragraph shall limit Landlord’ s other
remedies pursuant to this Lease or by law with respect to losses other than loss of rent or opportunity, or waive or affect any of
Tenant’ s indemnity obligations under this Lease and Landlord’ s rights to enforce those indemnity obligations. The payment of the
Liquidated Damages Amount as liquidated damages is not intended as a forfeiture or penalty within the meaning of California Civil
Code Section 3275 or 3369, but is intended to constitute liquidated damages to Landlord pursuant to California Civil Code Section
1671.
8.4. Inspection of Premises. Landlord and Landlord’ s agents, at all reasonable times , may enter the Premises to perform any
construction related to the Premises, Building or Phase, to inspect, clean or repair the same, to inspect the performance by Tenant of
the terms and conditions contained in this Lease, to affix reasonable signs and displays, to show the Premises to prospective
purchasers, tenants and lenders, to post notices of non-responsibility and similar notices, and for all other purposes as Landlord shall
reasonably deem necessary.
8.5. Liens. Tenant shall promptly pay and discharge all claims for work or labor done, supplies furnished or services rendered on
behalf of Tenant and shall keep the Premises, Building, Phase and Project free and clear of all mechanic’ s and materialmen’ s liens in
connection therewith. Landlord shall have the right to post or keep posted on the Premises, or in the immediate vicinity thereof, any
notices of nonresponsibility for any construction, alteration or repair of the Premises by Tenant. If any such lien is filed, Landlord may,
but shall not be required to,
take such action or pay such amount as may be necessary to remove such lien ; and, Tenant shall pay to Landlord as Additional Rent
any such amounts expended by Landlord within five (5) days after Tenant receives Landlord’ s written request for payment.
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