Common use of Second Termination Right Clause in Contracts

Second Termination Right. Subject to the provisions of this Section 41(b), if Tenant has exercised its Expansion Right under Section 39(a), Tenant shall have the right to terminate this Lease (“Second Termination Right”) upon the expiration of the 36th month following the ES Commencement Date (“STR Termination Date”); provided, however, that Tenant delivers to Landlord (i) written notice (“STR Termination Notice”) of its election to exercise its Second Termination Right on or before the expiration of the 27th month following the ES Commencement Date (“STR Notice Delivery Date”), along with (A) an STR Letter of Intent (as defined below) or (B) evidence reasonably satisfactory to Landlord of a Change In Control, and (ii) concurrent with Tenant’s delivery to Landlord of the STR Termination Notice, a termination payment in an amount equal to 6 months of Base Rent at the rate of Base Rent payable by Tenant at the time Tenant delivers the STR Termination Notice to Landlord (the “STR Early Termination Payment”). As used herein, “STR Letter of Intent” shall mean a fully executed letter of intent reflecting the contemplated lease by Tenant of no less than 46,640 rentable square feet of substantially similar type space as is provided for under this Lease at another building in the San Diego area (“STR Alternative Space”) for a term of no less than 18 months (“STR Minimum Term”). Notwithstanding anything to the contrary contained herein, Tenant shall only have the right to exercise the Second Termination Right pursuant to Section 41(b)(i)(A) if (1) the Premises contains fewer that 46,640 rentable square feet, and (2) Tenant delivered a written notice (“STR Additional Space Notice”) to Landlord no later than the expiration of the 23rd month following the ES Commencement Date reflecting Tenant’s desire to expand the Premises by no less than 10,000 rentable square feet of space in the Building (“STR Additional Space”). If Tenant delivers an STR Additional Space Notice as provided for in the immediately preceding sentence, Landlord shall, on or before the date that is 30 days after Landlord’s receipt of the STR Additional Space Notice (“STR AS Notice Expiration Date”), notify Tenant in writing whether STR Additional Space will be available for lease by Tenant on or before the STR Termination Date (“STR Availability Notice”). In no event shall Tenant have the right to exercise its Second Termination Right pursuant to Section 41 (b)(i)(A) if, on or before the STR AS Notice Expiration Date, Landlord responds to Tenant’s STR Additional Space Notice with an STR Availability Notice that STR Additional Space is or will be available for lease by Tenant on or before the STR Termination Date. If Tenant exercises its Second Termination Right pursuant to Section 41 (b)(i)(A), Tenant shall be required to deliver to Landlord, on or before the 30th month following the ES Commencement Date, a fully executed lease for the STR Alternative Space (reflecting a term no less than the STR Minimum Term but which STR Alternative Space need not be the same space identified in the STR Letter of Intent so long as the same satisfies the size, term and location requirements set forth above for the STR Alternative Space) (“STR Alternative Lease”). If Tenant shall fail to deliver the STR Alternative Lease to Landlord on or before the 30th month following the ES Commencement Date, the Second Termination Right shall be null and void, Tenant shall have no further right to terminate this Lease pursuant to this Section 41(b), and Landlord shall immediately return the STR Early Termination Payment to Tenant. If Tenant exercises the Second Termination Right, and timely delivers the STR Alternative Lease, Landlord shall be free to lease the Premises to any third party for a term commencing any time after the STR Termination Date. If (x) the Premises contains 46,640 rentable square feet or more, or (y) Tenant fails to deliver the STR Termination Notice and/or the STR Early Termination Payment as required hereunder, the Second Termination Right shall be automatically null and void and of no further force or effect and Tenant shall have no further right to terminate this Lease pursuant to this Section 41(b). If Landlord delivers an STR Availability Notice to Tenant, the leasing of the STR Additional Space by Tenant shall be governed by the same terms applicable to the Additional Space as set forth in the final paragraph of Section 41(a). Notwithstanding anything to the contrary contained herein, if Landlord delivers an STR Availability Notice to Tenant and Landlord is willing to enter into a lease amendment for the STR Additional Space as provided for herein, then, regardless of whether Tenant elects to lease such STR Additional Space, Tenant shall have no right to elect to exercise the Second Termination Right and such right shall be forfeited.

Second Termination Right. Subject to the provisions of this Section 41(b), if Tenant has exercised its Expansion Right under Section 39(a), Tenant shall have the one (1) time right to terminate this Lease (the “Second Termination Right”) upon the expiration to terminate and cancel this Lease with respect to that portion of the 36th month following Premises not terminated pursuant to Section 2.2.1 above (the ES Commencement Date “Second Terminated Space”), effective as of the date (the “STR Second Termination Date”); provided, however, that Tenant delivers to Landlord (i) written notice (“STR Termination Notice”) of its election to exercise its Second Termination Right on or before which is the expiration last day of the 27th sixty- eighth (68th) month following anniversary of the ES Lease Commencement Date (“STR Notice Delivery Date”), along with (A) an STR Letter of Intent (as defined below) or (B) evidence reasonably satisfactory to Landlord of a Change In Control, and (ii) concurrent with . Tenant’s delivery to Landlord exercise of the STR Termination Notice, a termination payment in an amount equal to 6 months of Base Rent at the rate of Base Rent payable by Tenant at the time Tenant delivers the STR Termination Notice to Landlord (the “STR Early Termination Payment”). As used herein, “STR Letter of Intent” shall mean a fully executed letter of intent reflecting the contemplated lease by Tenant of no less than 46,640 rentable square feet of substantially similar type space as is provided for under this Lease at another building in the San Diego area (“STR Alternative Space”) for a term of no less than 18 months (“STR Minimum Term”). Notwithstanding anything to the contrary contained herein, Tenant shall only have the right to exercise the Second Termination Right pursuant to Section 41(b)(i)(Ais contingent upon (i) if (1) the Premises contains fewer that 46,640 rentable square feet, and (2) Tenant delivered a written notice (“STR Additional Space Notice”) to Landlord no later than the expiration of the 23rd month following the ES Commencement Date reflecting Tenant’s desire to expand the Premises by no less than 10,000 rentable square feet of space in the Building (“STR Additional Space”). If Tenant delivers an STR Additional Space Notice as provided for in the immediately preceding sentence, Landlord shall, on or before the date that is 30 days after Landlord’s receipt of the STR Additional Space Notice (“STR AS Notice Expiration Date”), notify Tenant in writing whether STR Additional Space will be available for lease by Tenant on or before the STR Termination Date (“STR Availability Notice”). In no event shall Tenant have the right to exercise its Second Termination Right pursuant to Section 41 (b)(i)(A) if, on or before the STR AS Notice Expiration Date, Landlord responds to Tenant’s STR Additional Space Notice with an STR Availability Notice that STR Additional Space is or will be available for lease by Tenant on or before the STR Termination Date. If Tenant exercises its Second Termination Right pursuant to Section 41 (b)(i)(A), Tenant shall be required to deliver to Landlord, on or before the 30th month following the ES Commencement Date, a fully executed lease for the STR Alternative Space (reflecting a term no less than the STR Minimum Term but which STR Alternative Space need not be the same space identified in the STR Letter of Intent so long as the same satisfies the size, term and location requirements set forth above for the STR Alternative Space) (“STR Alternative Lease”). If Tenant shall fail to deliver the STR Alternative Lease delivery to Landlord on or before the 30th month following date which is nine (9) months prior to the ES Commencement Second Termination Date, written notice of Tenant’s exercise of such right (the “Second Termination Notice”), (ii) Tenant’s payment to Landlord of the Second Termination Consideration (as defined below), and (iii) Tenant’s payment of the monthly installments of Base Rent due and payable hereunder for the first sixty-eight (68) months of the Lease Term. As used herein, the “Second Termination Consideration” shall mean an amount equal to the sum of: (A) the unamortized portion of the brokerage commissions (including, but not limited to, leasing bonuses paid to brokers), the Abated Base Rent (as defined in Section 3.2 below) and the Parking Discount (as defined in Article 23 below) in connection with this Lease (as well as any brokerage commissions, free rent, parking and other concessions in connection with any ROFO Space leased by Tenant pursuant to Section 1.4 above); plus (B) the unamortized portion of the costs of Landlord’s work (if any) in the Premises and the Tenant Improvement Allowance paid or incurred by Landlord pursuant to the Work Letter; and (C) the unamortized portion of the costs of the tenant improvements and tenant improvement allowance, if any paid or incurred by Landlord for any ROFO Space leased by Tenant pursuant to Section 1.4 above. The brokerage commissions, costs of Landlord’s work (if any), and Tenant Improvement Allowance, Abated Base Rent and the Parking Discount with respect to the Premises leased by Tenant shall all be amortized on a straight-line basis over the scheduled initial ten (10) year Lease Term, together with interest at the rate of eight percent (8%) per annum, and the unamortized portion thereof shall be determined based upon the unexpired portion of such initial ten (10) year Lease Term as of the Second Termination Date. The unamortized portion of the costs of any brokerage commissions and tenant improvement costs/allowance, if any, paid for or provided by Landlord to Tenant for any ROFO Space leased by Tenant pursuant to Section 1.4 shall be amortized on a straight-line basis over the scheduled initial term of the lease of the ROFO Space, together with interest at the rate of eight percent (8%) per annum, and the unamortized portion thereof shall be determined based upon the unexpired portion of such initial lease term for such ROFO Space as of the Second Termination Date. If Tenant properly exercises the Second Termination Right shall be null and voidset forth in this Section 2.2.2 in strict accordance with the terms hereof, Tenant shall have no further right to terminate this Lease pursuant to this Section 41(b), and Landlord shall immediately return the STR Early Termination Payment to Tenant. If Tenant exercises expire at midnight on the Second Termination RightDate, and timely delivers the STR Alternative Lease, Landlord Tenant shall be free required to lease surrender the Premises to any third party for a term commencing any time after the STR Termination Date. If (x) the Premises contains 46,640 rentable square feet Landlord on or more, or (y) Tenant fails prior to deliver the STR Termination Notice and/or the STR Early Termination Payment as required hereunder, the Second Termination Date in accordance with the applicable provisions of this Lease. The Second Termination Right shall be automatically null and void and of no further force or effect and Tenant shall have no further right to terminate this Lease pursuant to this Section 41(b). If Landlord delivers an STR Availability Notice to Tenant, the leasing of the STR Additional Space by Tenant shall be governed by the same terms applicable to the Additional Space as set forth in the final paragraph of this Section 41(a). Notwithstanding anything 2.2.2 is personal to the contrary contained hereinOriginal Tenant or any Affiliate Assignee, and may only be executed by the Original Tenant or such Affiliate Assignee if Landlord the Tenant is not in monetary and/or material default under this Lease beyond the expiration of all applicable notice and cure periods as of the date Tenant delivers an STR Availability Notice to Tenant and Landlord is willing to enter into a lease amendment for the STR Additional Space as provided for herein, then, regardless of whether Tenant elects to lease such STR Additional Space, Tenant shall have no right to elect to exercise the Second Termination Right and such right shall be forfeitedNotice or as of the Second Termination Date.