eTrade 2000 Annual Report Download - page 146

of the original Term. The Base Rent due during the First Extension Term shall be increased annually by the Average Annual
Percentage (defined below), if any.
(b) Second Extension Term . If Tenant exercises its extension option for the Second Extension Term, the Term shall be extended for
an additional period of five (5) years on all of the terms and conditions of this Lease, except (i) Tenant shall have no further options to
extend the Term of this Lease, (ii) Landlord shall not be required to pay to Tenant any tenant improvement allowance or inducement
and (iii) the monthly Base Rent for the first year of the Second Extension Term shall be the greater of (A) the “Initial Fair Market
Rent” prevailing at the commencement of the Second Extension Term or (B) the monthly Base Rent in effect at the end of the First
Extension Term. The Base Rent due during the Second Extension Term shall be increased annually by the Average Annual
Percentage, if any.
(c) Real Estate Commission . Tenant shall be responsible for all brokerage costs and/or finder’ s fees associated with Tenant’ s exercise
of its option to extend the Term made by parties claiming through Tenant. Landlord shall be responsible for all brokerage costs and/or
finder’ s fees associated with Tenant’ s exercise of its option to extend the Term made by parties claiming through Landlord.
25.3 Determination of Fair Market Rent .
(a) Agreement on Rent . For the purposes of this Section, the “Initial Fair Market Rent” means the monthly base rent (i.e., rent other
than operating expenses, taxes and insurance premiums), expected to prevail as of the commencement of an Extension Term for the
first year of that Extension Term with respect to leases of office space within buildings located in the “Designated Area” (defined as
the Menlo Park and Palo Alto areas other than the Sand Hill Road area, Stanford Research Park and the Palo Alto central business
district) of a quality and with interior improvements, parking, site amenities, building systems, location, identity and access all
comparable to that of the Premises, for a term equal to the Extension Term. The term “Average Annual Percentage” shall mean the
avera ge annual percentage increase in the monthly base rent (i.e., rent other than operating expenses, taxes and insurance premiums)
expected to prevail as of the commencement of that particular Extension Term with respect to leases of office space within buildings
located in the Designated Area of a quality and with interior improvements, parking, site amenities, building systems, location, identity
and access all comparable to that of the Premises, for a term equal to the Extension Term). Within fifteen (15) days after Landlord’ s
receipt of Tenant’ s Extension Notice, by written notice to Tenant (“Landlord’ s Rent Notice”), Landlord shall advise Tenant as to
Landlord’ s determination of the Initial Fair Market Rent and Average Annual Percentage. If Tenant disagrees with Landlord’ s
determination, Tenant shall advise Landlord as to Tenant’ s determination of Initial Fair Market Rent and Average Annual Percentage
by written notice (“Tenant’ s Rent Notice”) within f ifteen (15) days after Tenant’ s receipt of Landlord’ s Rent Notice. If Tenant fails to
deliver Tenant’ s Rent Notice to Tenant within the time period provided above, Tenant shall be bound by Landlord’ s determination of
the Initial Fair Market Rent and Average Annual Percentage as set forth in Landlord’ s Rent Notice. If Tenant shall timely deliver to
Landlord Tenant’ s Rent Notice, Landlord and Tenant shall attempt in good faith to reach agreement as to the Initial Fair Market Rent
and Average Annual Percentage within fifteen (15) days after Landlord’ s receipt of Tenant’ s Rent Notice.
(b) Selection of Appraisers . If Landlord and Tenant are unable to agree as to the amount of the Initial Fair Market Rent and Average
Annual Percentage within the aforementioned fifteen (15) day period as evidenced by a written amendment to this Lease executed by
them, then, within ten (10)days after the expiration of the fifteen (15) day period, Landlord and Tenant shall each, at its sole cost and
by giving notice to the other party, appoint a competent and disinterested real estate appraiser with membership in the Appraisal
Institute and M.A.I. designation and with at least five (5) years’ full-time commercial appraisal experience in the Menlo Park and Palo
Alto areas to determine the Initial Fair Market Rent and Average Annual Percentage. If either Landlord or Tenant does not appoint an
appraiser within ten (10) days after the other party has given notice of the name of its appraiser, the single appraiser appointed shall be
the sole appraiser and shall determine the Initial Fair Market Rent and Average Annual Percentage. If Landlord and Tenant as stated in
this Section appoint two (2) appraisers, they shall attempt to select a third appraiser meeting the qualifications stated in this Section
within ten (10) days. If they are unable to agree on the third appraiser, either Landlord or Tenant, by giving ten (10) days’ notice to the
other party, can apply to the then president of the real estate board of the county in which the Building is located, or to the Presiding
Judge of the Superior Court of the county in which the Building is located, for the selection of a third appraiser who meets the
qualifications stated in this paragraph. Landlord and Tenant each shall bear one-half (1/2) of the cost of appointing the third appraiser
and of paying the third appraiser’ s fee. The third
appraiser, however selected, shall be a person who has not previously acted in any capacity for either Landlord or Tenant.
(c) Value Determined By Three (3) Appraisers . The appraisers shall determine the Initial Fair Market Rent and Average Annual
Percentage by using the “Market Comparison Approach” with the relevant market being office buildings located in the Designated
Area. Within thirty (30) days after the selection of the third appraiser, Landlord’ s appraiser shall arrange for the simultaneous delivery
to Landlord of written appraisals from each of the appraisers and the three (3) appraisals shall be added together and their total divided
by three (3); the resulting quotients shall be the Initial Fair Market Rent and Average Annual Percentage. If, however, the low
appraisal and/or the high appraisal of either the Initial Fair Market Rent or the Average Annual Percentage are/is more than ten percent
2002. EDGAR Online, Inc.