EXHIBIT 10.1
AMENDMENT NO. FOUR
TO BUILD-TO-SUIT LEASE
THIS AMENDMENT NO.
FOUR (“
Amendment ”) is made and entered into as of
March 31, 2009, effective as of February 1, 2009 (the
“ Effective Date ”), by and between HCP BTC,
LLC (formerly known as Slough BTC, LLC), a Delaware limited
liability company (“ Landlord ”) and RIGEL
PHARMACEUTICALS, INC. , a Delaware corporation (“
Tenant ”).
RECITALS
A.
Landlord and Tenant are parties to that certain Build-To-Suit Lease
dated as of May 16, 2001 (the “ Original Lease
”), as amended by Amendment No. One to Build-to-Suit
Lease dated as of October 18, 2002 (the “ First
Amendment ”), by Amendment No. Two to Build-to-Suit
Lease dated as of January 31, 2005 (the “ Second
Amendment ”), and by Amendment No. Three to
Build-to-Suit Lease dated as of July 24, 2006 (the “
Third Amendment ”) (the Original Lease and the First
Amendment, Second Amendment and Third Amendment being referred to
herein collectively as the “ Lease ”), pursuant
to which Landlord leases to Tenant, and Tenant leases from
Landlord, the two connected buildings commonly known as 1170
Veterans Boulevard and 1180 Veterans Boulevard, containing
approximately 146,923 square feet in the aggregate, in the
Britannia Oyster Point business park, South San Francisco,
California.
B.
The Third Amendment provided for the deferral of a portion of
Tenant’s monthly rental obligation for the months from and
including May 2006 through December 2007; for the
conversion of such deferred rent, together with interest accrued
thereon, to an “Amortizable Balance” (as defined in the
Third Amendment) as of December 31, 2008; and for the
repayment of such Amortizable Balance by Tenant over a period of
four (4) years beginning in January 2009 pursuant to
a repayment schedule prescribed in the Third Amendment.
C.
The Amortizable Balance as of December 31, 2008 was
$7,024,284. Tenant made one amortization payment with respect
to such Amortizable Balance in January 2009.
D.
The parties wish to amend the Lease, effective as of the Effective
Date, to provide for, inter alia , (i) a deferral of
repayment of the remaining portion of the Amortizable Balance
(redefined below for purposes of this Amendment as the
“Deferral Amount”), (ii) a revised set of terms
governing payment of the unpaid balance of such Deferral Amount,
and (iii) the cancellation of an existing warrant and issuance
of a new warrant to Landlord or its nominee, all subject to the
terms and conditions set forth herein.
E.
Unless otherwise defined herein, all capitalized terms have the
meanings assigned to them in the Lease.
THEREFORE , for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1.
Calculation and Payment of Deferral Amount .
(a)
The parties agree that the remaining
Amortizable Balance as of the Effective Date was $6,850,786 (the
“ Deferral Amount ”). The unpaid balance
of the Deferral Amount shall be deemed to increase at the rate of
twelve percent (12%) per annum, compounded monthly, during the
Delay Period as defined below (the Deferral Amount, as so increased
from time to time, being sometimes referred to herein as the
“ Adjusted Deferral Amount ” and the amount by
which the Adjusted Deferral Amount from time to time exceeds the
initial Deferral Amount as specified above being sometimes referred
to herein as the “ Delay Period Adjustment Amount
”). For purposes of this Amendment, the term “
Delay Period ” means the period from and including the
Effective Date until and including the earlier of
(i) June 30, 2010 or (ii) the date the Adjusted
Deferral Amount has been paid in full by Tenant.
(b)
Tenant shall pay the Adjusted
Deferral Amount, together with accrued interest (if any) pursuant
to this subparagraph (b), in accordance with the provisions of
this subparagraph (b). Payments made by Tenant under the
Lease shall be applied first to Tenant’s monetary obligations
due or past due under the Lease other than pursuant
to this subparagraph (b) (including, but not limited to,
Tenant’s obligations for payment of monthly minimum rent,
Operating Expenses, and additional rent payable under any
applicable provisions of the Lease as it existed prior to Amendment
No. Three), and shall be applied to Tenant’s obligations
under this subparagraph (b) only after all such other
monetary obligations are current. All amounts paid or payable
by Tenant pursuant to this subparagraph (b) shall
constitute additional rent under the Lease and, when paid and
properly applicable to Tenant’s obligations under this
subparagraph (b), shall be applied first to accrued interest
(if any) pursuant to the provisions of this subparagraph (b),
then to the Delay Period Adjustment Amount, and then to the
remaining balance of the Adjusted Deferral Amount.
(i)
Except as expressly provided in
subparagraph (b)(ii), (iii), (iv) or (v) below (if
applicable), Tenant shall not be required to make any repayment
with respect to the Adjusted Deferral Amount prior to July 1,
2010. If as of June 30, 2010 the Adjusted Deferral
Amount has not been paid in full and none of the events described
in subparagraph (b)(ii), (iii) or (iv) below has
occurred, then (A) on July 1, 2010, Tenant shall make a
lump-sum payment to Landlord in an amount equal to the then
applicable Delay Period Adjustment Amount (which amount the parties
agree will be $1,262,630 as of June 30, 2010 if there are no
prepayments of any portion of the Adjusted Deferral Amount prior to
that date), and (B) Tenant shall pay the entire remaining
balance of the Adjusted Deferral Amount (which should, in the
absence of any prepayments, be equal to the initial Deferral Amount
as specified above) in equal monthly installments of $173,498 per
month for forty-seven (47) months (the same payment terms
previously in effect under the Third Amendment), including interest
accruing at nine percent (9%) per annum from July 1, 2010 on
the unpaid portion of the Adjusted Deferral Amount remaining
outstanding from time to time. Such monthly payments shall be
due, together with all minimum monthly rent and all other
additional rent otherwise payable under the Lease, on the first day
of each calendar month beginning on July 1, 2010 and
continuing through and including May 1, 2014. The rent
schedule set forth in Exhibit A attached hereto
and incorporated herein by this reference sets forth, for purposes
of illustration, the modified rent schedule that would be
applicable under this Amendment if this
subparagraph (b)(i) applies and no prepayments of the
Adjusted Deferral Amount are made by Tenant prior to July 1,
2010. In the event of any prepayment after
2
June 30, 2010 of less than the entire then
remaining balance of the Adjusted Deferral Amount and interest
thereon, the unpaid Adjusted Deferral Amount and accrued interest
shall be recalculated (after giving effect to such prepayment) and
the required monthly amortization payment under this
subparagraph (b)(i) shall be recalculated to provide for
a level amortization of such recalculated Adjusted Deferral Amount,
with interest at nine percent (9%) per annum, compounded monthly,
over the number of full calendar months remaining from the date of
such prepayment (beginning with the first full calendar month
following the actual prepayment date) through and including
May 2014.
(ii)
If a Capital Event (as defined
below) occurs prior to July 1, 2010 and the Transaction
Consideration (as defined below) received pursuant to or in
connection with such Capital Event is $200 million or more, then
within forty-five (45) business days after the closing of such
Capital Event, Tenant shall pay Landlord a lump-sum payment equal
to the entire then outstanding Adjusted Deferral Amount, in full
and final satisfaction of Tenant’s payment obligations under
this subparagraph (b).
(iii)
If a Capital Event occurs prior to
July 1, 2010 and the Transaction Consideration received
pursuant to or in connection with such Capital Event is less than
$200 million but greater than or equal to $100 million, then
(A) within forty-five (45) business days after the closing of
such Capital Event, Tenant shall pay Landlord a lump-sum payment
equal to fifty percent (50%) of the then outstanding Adjusted
Deferral Amount, and (B) on or before July 1, 2011,
Tenant shall pay Landlord a further lump-sum payment equal to the
entire remaining balance of the Adjusted Deferral Amount, which for
this purpose shall be dee
