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Exhibit
10.44
SECOND AMENDMENT TO
BUILD-TO-SUIT LEASE
This Second Amendment to
Build-to-Suit Lease (“ Second Amendment
”) is made and entered into as of January 31, 2001, by and
between BRITANNIA POINTE GRAND LIMITED PARTNERSHIP, a Delaware
limited partnership (“ Landlord ”), and
EXELIXIS, INC. (formerly known as Exelixis Pharmaceuticals, Inc.),
a Delaware corporation (“ Tenant ” ),
with reference to the following facts:
A. Landlord and Tenant are
parties to a Build-to-Suit Lease dated as of May 12, 1999 (the
“ Original Lease ”), and to a First
Amendment to Build-to-Suit Lease dated as of March 29, 2000
(the “ First Amendment ” ), collectively
covering, among other things, a building presently occupied by
Tenant under the Lease at 170 Harbor Way, South San Francisco,
California (“ Building 1 ”), a building
presently under construction by Landlord for occupancy by Tenant
under the Lease at 169 Harbor Way, South San Francisco, California
(“ Building 2 ”), and an elevated
connector bridge between Building 1 and Building 2 across Harbor
Way (the “ Connector Bridge ”). The
Original Lease, as amended by the First Amendment, is sometimes
hereinafter collectively referred to as the “ Lease
. ” Terms used in this Second Amendment as defined terms
but not defined herein shall have the meanings assigned to such
terms in the Lease.
B. Landlord and Tenant have
now received firm estimates for the costs of construction of the
Connector Bridge, and wish in this Second Amendment to set forth
their mutual agreement as to the manner in which such costs of
construction will be reflected in rental adjustments under the
Lease, superseding for this purpose any inconsistent provisions of
the Lease as it existed prior to this Second Amendment. At the same
time, Landlord and Tenant wish to set forth a revised provision for
the manner in which certain Excess Acquisition Costs (as defined in
the First Amendment), if any, are to be reflected in rental
adjustments under the Lease, correcting an inadvertent misstatement
of their intended treatment of such Excess Acquisition Costs in the
First Amendment.
NOW, THEREFORE, in reliance
upon the foregoing recitals and upon the mutual agreements set
forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Landlord
and Tenant agree as follows:
1. Excess Connector Bridge
Cost . The Monthly Minimum Rental Amounts specified in
Paragraph 4(a) of the First Amendment assumed a total Cost of
Improvements (defined in accordance with Paragraph 2(c) of the
Workletter attached as Exhibit C to the Lease) of
$800,000.00 for the Connector Bridge. The most recent estimate now
available to Landlord and Tenant for the total Cost of Improvements
for design and construction of the Connector Bridge is $1,555,878,
broken down as follows: (a) for the “shell” of the
Connector Bridge, design costs of $90,000 and construction costs of
$1,178,253, for a total estimated “shell” cost of
$1,268,253; and (b) for the “tenant improvements”
in the Connector Bridge, design costs of $16,000 and construction
costs of $271,625, for a total estimated “tenant
improvement” cost of $287,625. (The elements comprising the
“shell” of the Connector Bridge are reflected in the
construction cost summary attached hereto as Schedule
1 and incorporated herein by this reference, and the
elements comprising the “tenant improvements” in the
Connector Bridge are reflected in the construction cost summary
attached hereto as Schedule 2 and incorporated herein
by this reference.) Based on these estimates, the parties estimate
that the amount by which the actual total Cost of Improvements for
the Connector Bridge exceeds $800,000 will be $755,878. The amount
by which the actual total Cost of Improvements for the Connector
Bridge exceeds $800,000 is hereinafter referred to as the “
Excess Connector Bridge Cost ”:
provided, however, that in no event shall the Excess
Connector Bridge Cost exceed $755,878 for purposes of this
Paragraph 1. The parties agree that (i) Landlord shall be
solely responsible for direct payment of all costs of design and
construction of the “shell” of the Connector Bridge to
the extent such costs exceed $1,268,253; (ii) Tenant shall be
solely responsible for direct payment of all costs of design and
construction of the “tenant improvements” in the
Connector Bridge to the extent such costs exceed $287,625;
(iii) Landlord shall be solely responsible for direct payment
of fifty percent (50%) of the Excess Connector Bridge Cost, up
to a maximum Landlord obligation of $377,939 (being 50% of the
maximum Excess Connector Bridge Cost of $755,878); and
(iv) the remaining fifty percent (50%) of the Excess
Connector Bridge Cost, up to a maximum of $377,939 (being 50% of
the maximum Excess Connector Bridge Cost of $755,878), shall
be
reflected in a rental adjustment in the
form of additional monthly rental payable by Tenant to Landlord for
Building 2, during each month beginning on the Phase 2 Rent
Commencement Date and continuing throughout the initial term of the
Lease, in an amount determined as follows:
(A) During the period from
the Phase 2 Rent Commencement Date until the first anniversary of
the Phase 2 Rent Commencement Date, such additional monthly rental
shall be equal to one percent (1%) per month times the amount
of the Excess Connector Bridge Cost which is being
“rentalized” pursuant to clause (iv) above (so
that, for example, if the maximum amount subject to rentalization
under such clause (iv), $377,939, is being rentalized, the amount
of such additional monthly rental during the period described in
this subparagraph (A) shall be $3,779.39 per month);
and
(B) During each subsequent
one-year period from the first anniversary of the Phase 2 Rent
Commencement Date until the expiration of the initial Term of the
Lease (including, if applicable, any final period of less than one
year between such expiration date and the immediately preceding
anniversary of the Phase 2 Rent Commencement Date), such additional
monthly rental shall be equal to one hundred four percent
(104%) of the additional monthly rental in effect during the
immediately preceding one-year period.
Landlord’s sole rights with
respect to recovering any portion of the Excess Connector Bridge
Cost (other than the portion, if any, for which Tenant is directly
responsible under clause (ii)
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