eTrade 2000 Annual Report Download - page 139

Section 7.8 (a) :
At the end of this Section, insert “Tenant shall arrange and provide for its own janitorial services in the Building.”
Section 7.8 (b) :
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:
7.9 Tenant’ 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 admiss ibility 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 enforceable 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. “
2002. EDGAR Online, Inc.