eTrade 2000 Annual Report Download - page 192

At the end of this Section, insert “Landlord represents to Tenant that the Building is separately metered for electricity, gas and water.”
Section 7.9:
At the end of Section 7.8, add the following Section:
7.9Tenant’ s Audit Rights. Tenant shall have ninety (90) days after Tenant receives the year end statement of the adjustment to the
Operating Expenses for the prior calendar year to notify Landlord in writing of Tenant’ s desire to conduct, at Tenant’ s sole cost and
expense, an audit of Landlord’ s books and records relating to the prior calendar year. Any such audit must be conducted by Tenant or
its agent during regular business hours at the offices
of Landlord or the offices of Landlord’ s designated agent and must be completed within one hundred fifty (150) days after Tenant
receives the applicable year end statement. The person or entity performing the audit or review of Landlord’ s books and records on
Tenant’ s behalf or at Tenant’ s request may not be compensated for the audit or review on a contingency fee basis. If Landlord objects
to the findings of Tenant’ s audit, Landlord and Tenant shall attempt to resolve their disagreement concerning the amount of Tenant’ s
proportionate share of Operating Expenses within the next thirty (30) days. If Landlord and Tenant are unable to agree upon the
amount of Tenant’ s proportionate share of Operating Expenses (after Tenant has completed its audit), the parties shall submit the
matter to binding arbitration before a single neutral arbitrator having experience in real estate valuation, property management or
accounting or, alternatively, the arbitrator may be a retired judge or justice of a California Superior Court or Court of Appeal. The
matter shall be decided by arbitration in accordance with the applicable arbitration statutes and the then existing Commercial
Arbitration Rules of the American Arbitration Association. Any party may initiate the arbitration procedure by delivering a written
notice of demand for arbitration to the other party. Within thirty (30) days after the other party’ s receipt of written notice of demand
for arbitration, the parties shall attempt to select a qualified arbitrator who is acceptable to all parties. If the parties are unable to agree
upon an arbitrator who is acceptable to all parties, either party may request the American Arbitration Association to appoint the
arbitrator in accordance with its Commercial Arbitration Rules. The provisions of California Code of Civil Procedure Section 1283.05
or its successor section(s) are incorporated in and made a part of this Lease with respect to any arbitration requested in accordance
with the provisions contained in this Section. Depositions may be taken and discovery may be obtained in any arbitration proceeding
requested pursuant to this Section in accordance with the provisions of California Code of Civil Procedure Section 1283.05 or its
successor section(s). Arbitration hearing(s) shall be conducted in Santa Clara County California. Any relevant evidence, including
hearsay, shall be admitted by the arbitrator if it is the sort of evidence upon which responsible persons are accustomed to rely in the
conduct of serious affairs, regardless of the admissibility of such evidence in a court of law; however, the arbitrator shall apply
California law relating to privileges and work product. In rendering his or her award, the arbitrator shall set forth the reasons for his or
her decision. The fees and expenses of the arbitrator shall be paid in the manner allocated by the arbitrator. This agreement to arbitrate
any dispute concerning the findings of Tenant’ s audit shall be specifically e nforceable under the prevailing arbitration law. Judgment
on the award rendered by the arbitration may be entered in any court having jurisdiction thereof. If, subsequent to Tenant’ s audit, the
parties determine that Landlord has overstated Tenant’ s percentage share of the Operating Expenses by more than five percent (5%)
during the applicable calendar year, Landlord shall reimburse Tenant for the reasonable cost of the audit.”
Section 8.1:
At the end of this Section, insert “Specifically, Landlord shall maintain the structural portions of the Building, including the structural
elements of the walls, floor slabs and roof; the heating, ventilating and air conditioning system in the Building (the “Building HVAC”);
the elevator; the plumbing and electrical systems in the Common Areas (with Tenant maintaining the plumbing and electrical systems
in the Premises); the Common Area parking lots in the Phase; the exterior of the Building, including the exterior glass; and the
foundation. If the existing Building HVAC breaks or malfunctions during the Term, then, to the extent it is commercially reasonable to
do so, Landlord shall repair the existing Building HVAC as opposed to replacing the existing Building HVAC. Landlord shall notify
Tenant in writing prior to replacing the existing Building HVAC. Landlord shall be responsible for ensuring that the Building HVAC
and the ele vators are in working order on January 1, 2000.”
Section 8.2:
On page 9, line 4, after the word “Landlord”, insert “and those items or components of the Building that Landlord is obligated to repair
pursuant to Section 8.1.”
On page 9, line 14, after the word “all”, insert “interior”.
At the end of this Section, insert “Tenant is responsible for the proper maintenance and servicing of fire extinguishers and fire
protection equipment in the Premises. Notwithstanding anything to the contrary contained in this Section, Tenant shall not be required
to remove any of the Tenant Improvements (defined in the Work Letter) constructed by Tenant as part of the Tenant Improvement
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