eTrade 2000 Annual Report Download - page 125

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 l imit 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.
9. FIXTURES, PERSONAL PROPERTY AND ALTERATIONS
9.1. Fixtures and Personal Property. Tenant, at Tenant’ s sole cost and expense, may install any necessary trade fixtures, equipment
and furniture in the Premises, provided that such items are installed and are removable without affecting the structural integrity,
character or utility of the Building. Landlord reserves the right to approve or disapprove of any curtains, draperies, shades, paint or
other interior improvements that are visible from outside the Premises on wholly aesthetic grounds. Such improvements or replacement
items must be submitted for Landlord’ s written approval prior to installation, or Landlord may remove or replace such items at
Tenant’ s sole cost and expense. The trade fixtures, equipment and furniture shall remain Tenant’ s property and shall be removed by
Tenant prior to the expiration of this Lease. If Tenant fails to remove Tenant’ s trade fixtures, equipment and furnitu re prior to the
termination of this Lease, Landlord may keep and use the foregoing items or remove and dispose any or all of those items at Tenant’ s
expense, and cause Tenant’ s trade fixtures, equipment and furniture to be stored or sold in accordance with applicable law. Prior to
expiration of the Term or earlier termination of this Lease, Tenant shall repair, at Tenant’ s sole cost and expense, all damage caused to
the Building or Premises as a result of the installation, operation, use or removal of Tenant’ s trade fixtures, equipment, furniture, or
unauthorized improvements and replacements, and restore the Building and the Premises to their condition at the commencement of
the Term.
9.2. Alterations. Tenant shall deliver to Landlord full and complete plans and specifications of all such alterations, additions or
improvements, and no such work shall be commenced by Tenant until Landlord has given its written approval thereof. Landlord does
not expressly or implicitly covenant or warrant that any plans or specifications submitted by Tenant are safe or that the same comply
with any applicable laws, ordinances, etc. Further, Tenant shall indemnify and hold harmless Landlord from any loss, cost or expense,
including attorneys’ fees and costs, incurred by Landlord as a result of any defects in design, materials or workmanship resulting from
2002. EDGAR Online, Inc.