eTrade 2000 Annual Report Download - page 185

15.6. Bonus Rental. If, in connection with any assignment or sublease, Tenant receives rent or other consideration, either initially or
over the term of the assignment or sublease, in excess of the Rent called for hereunder, or in case of the sublease of a portion of the
Premises, in excess of such Rent fairly allocable to such portion, Tenant shall pay to Landlord, as Additional Rent hereunder, fifty
percent (50%) of the excess of each such payment of Rent or other consideration received by Tenant promptly after Tenant’ s receipt of
such Rent or other costs or expenses normally paid by a landlord in connection with a lease of commercial office property located in
Menlo Park or Palo Alto, or a sublandlord in connection with a sublease of office space in Menlo Park or Palo Alto, or the subtenant
purchases goods or services from sublandlord or an affiliate of sublandlord for an amount in excess of the fair market value for such
goods or services, such costs incurred or amounts expended shall be deemed to be “other consideration” for purposes of calculating
excess Rent due to Landlord hereunder.
15.7. Scope. The prohibition against assigning or subletting contained in this Section 15 shall be construed to include a prohibition
against any assignment or subletting by operation of law. If this Lease is assigned, or if the underlying beneficial interest of Tenant is
transferred, or if the Premises or any part thereof is sublet or occupied by anybody other than Tenant, Landlord may collect rent from
the assignee, subtenant or occupant and apply the net amount collected to the Rent due herein and apportion any excess rent so
collected in accordance with the terms of Section 15.6, but no such assignment, subletting, occupancy or collection shall be deemed a
waiver of the provisions regarding assignment and subletting, or the acceptance of the assignee, subtenant or occupant as tenant, or a
release of Tenant from the further performance, by Tenant of covenants on the part of Tenant herein contained. No assignment or su
bletting shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the
assignee), and Tenant shall not be released from performing any of the terms, covenants and conditions of this Lease.
15.8. Executed Counterparts. No sublease or assignment shall be valid, nor shall any subtenant or assignee take possession of the
Premises, until a fully executed counterpart of the sublease or assignment has been delivered to Landlord and Landlord, Tenant and the
applicable assignee or subtenant have entered into a consent to assignment or sublease in a form acceptable to Landlord.
15.9. Transfer of a Majority Interest. If Tenant is a non-publicly traded corporation, the transfer (as a consequence of a single
transaction or any number of separate transactions) of fifty percent (50%) or more or of a controlling interest or the beneficial
ownership interest of the voting stock of Tenant issued and outstanding as of the Effective Date shall constitute an assignment
hereunder for which Landlord’ s prior written consent is required. If Tenant is a partnership, limited liability company, trust or an
unincorporated association, the transfer of a controlling or majority interest therein shall constitute an assignment hereunder for which
Landlord’ s prior written consent is required.
15.10. Indemnity. If Landlord reasonably withholds its consent to any proposed assignment or sublease, Tenant shall indemnify,
protect, defend and hold harmless Landlord against and from any and all loss, liability, damages, costs and expenses (including
attorneys’ fees and disbursements) resulting from any claims that may be made. against Landlord by the proposed assignee or
sublessee or by any brokers or any persons claiming a commission or similar compensation in connection with the proposed
assignment or sublease. Notwithstanding any contrary provision of law, including, without limitation, California Civil Code Section
1995.310, the provisions of which Tenant hereby waives, Tenant shall have no right to terminate this Lease, in the event Landlord is
determined to have unreasonably withheld or delayed its consent to a proposed sublease or assignment,
15.11. Waiver. Notwithstanding any assignment or sublease, or any indulgences, waivers or extensions of time granted by Landlord
to any assignee or sublessee, or failure by Landlord to take action against any assignee or sublessee, Tenant waives notice of any
default of any assignee or sublessee and agrees that Landlord may, at its option, proceed against Tenant without having taken action
against or joined such assignee or subleases, except that Tenant shall have the benefit of any indulgences, waivers and extensions of
time granted to any such assignee or sublessee.
15.12. Release. Whenever Landlord conveys its interest in the Phase and/or Building, Landlord shall be automatically released from
the further performance of covenants on the part of Landlord herein contained, and from any and all further liability, obligations, costs
and expenses, demands, causes of action, claims or judgments arising from or growing out of, or connected with this Lease after the
effective date of said release . The effective date of Tenant’ s release shall be the date the assignee executes an assumption agreement
pursuant to which the assignee expressly agrees to assume all of Landlord’ s obligations, duties, responsibilities and liabilities with
respect to this Lease. If requested, Tenant shall execute a form of release and such other documentation as may be required to further
effect the provisions of this Section 15.
16. ESTOPPEL, ATTORNMENT AND SUBORDINATION
16.1. Estoppel. Within ten (10) days after Landlord’ s written request, Tenant shall execute and deliver to Landlord, in recordable
form, a certificate to Landlord and any existing or proposed mortgagee or purchaser certifying, among other things, (i) that this Lease
is unmodified and in full force and effect or, if modified, stating the nature of the modification and certifying that this Lease, as so
modified, is in full force and effect, (ii) the date to which the Rent and other charges have been paid in advance, if any; (iii) that to
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