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Exhibit
10.46
FIRST AMENDMENT TO
LEASE
THIS FIRST AMENDMENT TO LEASE
(“ First Amendment ” is entered into as of
February 28, 2003 (the “ Effective Date ”)
between BRITANNIA POINTE GRAND LIMITED PARTNERSHIP, a Delaware
limited partnership (“ Landlord ”) and EXELIXIS,
INC., a Delaware corporation (“ Tenant ”), with
reference to the following facts:
A. Landlord and Tenant are
parties to a Lease dated as of May 24, 2001 (the “
Lease ”), covering the building commonly known as 240
East Grand Avenue, South San Francisco, California (the “
Premises ”) in the Britannia Pointe Grand Business
Park. Terms used in this First Amendment as defined terms but not
actually defined herein shall have the meanings assigned to such
terms in the Lease.
B. The Premises have
heretofore been leased by Rigel Pharmaceuticals, Inc. (formerly
known as Rigel, Inc.), a Delaware corporation (“ Rigel
”), pursuant to a Build-to-Suit Lease dated June 2, 1998
between Landlord and Rigel (the “ Rigel Lease
”). Landlord and Rigel are parties to a Lease Termination
Agreement dated as of May 16, 2001 (the “ Rigel Lease
Termination Agreement ”), providing for the termination
of the Rigel Lease and surrender of the Premises by Rigel at the
time and under the circumstances set forth in the Rigel Lease
Termination Agreement. The Lease provides for Tenant’s
occupancy of the Premises to commence upon surrender of the
Premises by Rigel and completion of certain Landlord’s Work
as set forth in Section 2.3(a) of the Lease. The
“Surrender Date” under the Rigel Lease Termination
Agreement has occurred on and as of February 28, 2003 with
respect to all of the Premises other than the Holdover Space as
defined below.
C. Landlord has advised
Tenant that Rigel will be unable to complete, by the Surrender Date
as determined under the Rigel Lease Termination Agreement, the
cleanup and decommissioning of certain portions of the Premises in
which Rigel used or stored radioactive materials during the term of
the Rigel Lease, and that Rigel will therefore be unable to
surrender (and Tenant will be unable to occupy) such portions as of
the Commencement Date under the Lease. The portions of the Premises
affected by this issue consist of Rooms 172,175 and 180 on the
first floor of the Premises as depicted on Exhibit A
attached hereto and incorporated herein by this reference
(collectively, the “ Holdover Space ”). Landlord
and Tenant have agreed that the aggregate square footage of the
Holdover Space is 1,014 square feet (264, 150 and 600 sq. feet for
Rooms 172,175 and 180, respectively). Landlord, Tenant and Rigel
(by separate agreement) have agreed that Rigel shall be permitted
to retain access to and control of the Holdover Space, in
accordance with the provisions of this First Amendment and of a
First Amendment to the Rigel Lease Termination Agreement executed
substantially concurrently herewith, in order to complete the
cleanup and decommissioning of the Holdover Space, but Landlord and
Tenant also intend that Tenant shall take possession of all of the
Premises other than the Holdover Space as of the Commencement Date
under the Lease (determined without reference to the temporary
unavailability of the Holdover Space), subject to the provisions of
this First Amendment.
NOW, THEREFORE, in
consideration of the mutual agreements set forth herein and for
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Landlord and Tenant agree that the
Lease is amended as follows, effective as of the Effective
Date:
1. Delayed Occupancy of
Holdover Space . Tenant shall occupy and become responsible for
all of the Premises other than the Holdover Space as of the
Commencement Date under the Lease (determined without reference to
the temporary unavailability of the Holdover Space), but shall not
take occupancy of or become responsible for the Holdover Space at
that time. Until the occurrence of the “Decommissioning
Completion Date” under the Rigel Lease Termination Agreement,
as amended, or until any earlier date as of which Landlord, Tenant
and Rigel mutually agree in writing to a transfer of the Holdover
Space to Exelixis prior to occurrence of the Decommissioning
Completion Date as contemplated under the Rigel Lease Termination
Agreement, Rigel shall retain possession of the Holdover Space and
the definition of the Premises under the Lease shall be deemed to
exclude the Holdover Space. Upon final surrender of the Holdover
Space by Rigel, Landlord shall promptly and diligently complete any
of Landlord’s Work applicable to the Holdover Space and shall
then tender possession of the Holdover Space to Tenant, at which
time the Holdover Space shall be deemed added to the Premises under
the Lease for all purposes. Landlord and Tenant agree that the
Commencement Date under the Lease shall occur as of March 1,
2003 and the Rent Commencement Date under the Lease shall occur as
of March 16, 2003 as to all of the Premises other than the
Holdover Space.
2. Rental and Other Terms
Related to Delayed Occupancy of Holdover Space .
Notwithstanding any provisions of the Lease to the
contrary:
(a) During the period from
the Rent Commencement Date under the Lease until the date the
Holdover Space is added to the Premises pursuant to Paragraph 1
above (the “ Holdover Period ”), Tenant’s
obligations with
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