***TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SS.SS.200.80(B)(4),
200.83 AND 240.24B-2
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE ("Amendment") is entered into as of March
18, 1998 between BRITANNIA POINTE GRAND LIMITED PARTNERSHIP, a Delaware limited
partnership ("Landlord") and SUGEN, INC., a Delaware corporation ("Tenant"),
with reference to the following facts:
A. Landlord and Tenant are parties to a Build-to-Suit Lease dated June
11, 1997 (the "Lease"), covering certain premises consisting of a building of
approximately [...***...] square feet to be constructed in the Britannia Pointe
Grand Business Park in South San Francisco, California (the "Center").
B. Landlord and Tenant wish to make certain changes in the Lease as
more particularly set forth herein.
C. Terms used herein as defined terms but not specifically defined
herein shall have the meanings assigned to such terms in the Lease.
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 as follows:
1. Rent Commencement Date. Section 2.1(a) of the Lease is amended to
read in its entirety as follows:
"(a) The term of this Lease shall commence upon mutual execution of
this Lease by Landlord and Tenant. Tenant's minimum rental and
Operating Expense obligations shall commence on the earlier of (i)
the later of (A) October 1, 1998 or (B) the date which is one
hundred eighty (180) days after the date Landlord delivers to Tenant
a Structural Completion Certificate pursuant to the Workletter
attached hereto as Exhibit C (subject to any adjustments authorized
or required under the provisions of such Exhibit C), notifying
Tenant that Landlord's construction of the shell of the Initial
Building pursuant to Article 5 and Exhibit C is substantially
complete, or (ii) the date Tenant takes occupancy of and commences
operation of its business in the Initial Building, the earlier of
such dates being herein called the "Rent Commencement Date." The
term of this Lease shall end on the day (the "Termination Date")
immediately preceding the date seventeen (17) years after the Rent
Commencement Date, unless sooner terminated or extended as
hereinafter provided."
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*Confidential Treatment Requested
1.
2. Changes in Rent and Tenant Improvement Allowance. In order to
reflect an increase from $[...***...] pER square foot to $[...***...] per square
foot in Landlord's maximum contribution toward the Cost of Improvements of tHE
Tenant Improvements to be constructed pursuant to Section 5.1 and Exhibit C, the
following provisions of the Lease are amended as follows:
(a) The monthly minimum rental table in Section 3.1(a) of the Lease
is amended to read as follows:
Months Monthly Minimum Rental
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001 - 012 $ [...***...] ($[...***...] per square foot)
013 - 024 [...***...] ($[...***...] per square foot)
025 - 036 [...***...] ($[...***...] per square foot)
037 - 048 [...***...] ($[...***...] per square foot)
049 - 060 [...***...] ($[...***...] per square foot)
061 - 072 [...***...] ($[...***...] per square foot)
073 - 084 [...***...] ($[...***...] per square foot)
085 - 096 [...***...] ($[...***...] per square foot)
097 - 108 [...***...] ($[...***...] per square foot)
109 - 120 [...***...] ($[...***...] per square foot)
121 - 132 [...***...] ($[...***...] per square foot)
133 - 144 [...***...] ($[...***...] per square foot)
145 - 156 [...***...] ($[...***...] per square foot)
157 - 168 [...***...] ($[...***...] per square foot)
169 - 180 [...***...] ($[...***...] per square foot)
181 - 192 [...***...] ($[...***...] per square foot)
193 - 204 [...***...] ($[...***...] per square foot)
(b) Section 3.1(c) of the Lease is amended to read in its entirety
as follows:
"(c) Rental Adjustment in Connection with Cost of
Improvements. The minimum rental amounts specified in Section
3.1(a) are based on an assumed amount of [...***...] per square
foOT for the Cost of Improvements (determined in accordance with
Exhibit C) of the Tenant Improvements to be constructed by Tenant
pursuant to Section 5.1 and Exhibit C (and are thus based on an
assumed amount of [...***...] per square foot for Landlord's share
of such Cost OF Improvements). Under no circumstances shall
Landlord's liability for such Cost of Improvements exceed the
lesser of (i) [...***...] of the total Cost of Improvements for
such Tenant ImprovemenTS or (ii) [...***...] per square foot
multiplied by the area of the Initial Building as determined in
accordance with Section 3.1(b) hereof. If, upon completion of
construction of the Tenant Improvements, it is determined that
Landlord's share of the Cost of Improvements of such Tenant
Improvements (determined in accordance with Exhibit C) is less than
[...***...] per square foot (using the area of the Premises as
determined in
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*Confidential Treatment Requested
2.
accordance with Section 3.1(b) hereof), then the minimum rental
amounts specified in Section 3.1(a) shall be adjusted as follows:
(i) If Landlord's share of such Cost of Improvements is less
than [...***...] per square foOT but is at least [...***...] per square foot,
then the minimum rental under Section 3.1(a) during months 1 through 84 of the
term of this Lease shall be decreased by $[...***...] per square foot per month
for each $[...***...] pER square foot by which Landlord's share of such Cost of
Improvements is less than [...***...] per square foot (prorated for any portion
of such shortfall representing a fraction of $[...***...] per square foot);
(ii) If Landlord's share of such Cost of Improvements is less
than [...***...] per square foot but is at least [...***...] per square foot,
then the minimum rental under Section 3.1(a) during months 1 through 84 of the
term of this Lease shall be decreased by the sum of (A) $[...***...] per square
foot per month plus (B) $[...***...] per square foot per month for each
$[...***...] per square foot by which Landlord's share of such Cost of
Improvements is less than [...***...] per square foot, and the minimum rental
under Section 3.1(a) during months 85 through 120 of the term of this Lease
shall be decreased by $[...***...] per square foot per month for each
$[...***...] per square foot by which Landlord's share of such Cost of
Improvements is less than [...***...] per square foot (prorated, in each case,
for any portion of such shortfall representing a fraction of $[...***...] per
square foot); and
(iii) If Landlord's share of such Cost of Improvements is less
than [...***...] per square foot but is more than [...***...] per square foot,
then the minimum rental under Section 3.1(a) during months 1 through 84 of the
term of this Lease shall be decreased by the sum of (A) $[...***...] per square
foot per month plus (B) $[...***...] per square foot per month for each
$[...***...] per square foot by which Landlord's share of such Cost of
Improvements is less than [...***...] per square foot, the minimum rental during
months 85 through 120 shall be decreased by the sum of (C) $[...***...] per
square foot per month plus (D) $[...***...] per square foot per month for each
$[...***...] per square foot by which Landlord's share of such Cost of
Improvements is less than [...***...] per square foot, and the minimum rental
during months 121 through 168 shall be decreased by $[...***...] per square foot
per month for each $[...***...] per square foot by which Landlord's share of
such Cost of Improvements is less than [...***...] per square foot (prorated, in
each case, for any portion of such shortfall representing a fraction of
$[...***...] per square foot)."
(c) Section 3.1(d) of the Lease is amended by changing the two
references therein to a figure of [...***...] per square foot to read, instead,
[...***...] per square foot.
(d) Section 20.1 of the Lease is amended to increase the amount of
the Security Deposit required thereunder from [...***...] to [...***...]. (e)
Paragraph 4(b) of Exhibit C to the Lease (the Workletter) is amended to read in
its entirety as follows:
"(b) Tenant's Work. Except as otherwise expressly provided in
this Workletter or by mutual written agreement of Landlord and
Tenant, the cost of
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*Confidential Treatment Requested
3.
construction of the Tenant Improvements shall be borne [...***...]
by Landlord and [...***...] by Tenant, up to a maximum Landlord's
obligation of $[...***...] per square foot of space in the Initial
Building (measured in accordance with Section 3.1(b) of the Lease),
equating to a total Cost of Improvements for the Tenant
Improvements of $[...***...] per square foot. Tenant shall be
responsible, at its sole cost and expense (subject to any
third-party financing arrangements entered into by Tenant as
contemplated in Section 11.4 of the Lease), for payment of
[...***...] of the first $[...***...] per square foot of the Cost
of Improvements of the Tenant Improvements, for the entire Cost of
Improvements of the Tenant Improvements in excess of $[...***...]
per square foot (if any such excess occurs) and for the entire cost
of any Tenant's Work that is not part of the Tenant Improvements,
including (but not limited to), in each case, any costs or cost
increases incurred as a result of Unavoidable Delays, governmental
requirements or unanticipated conditions. If Landlord's share of
the Cost of Improvements of the Tenant Improvements is less than
$[...***...] per square foot in the aggregate, the amount of such
difference shall result in a rental adjustment pursuant to Section
3.1(c) of the Lease. The timing, conditions and other procedures
for payment or disbursement of Landlord's share of the cost of the
Tenant Improvements (up to the maximum amount specified above)
shall be subject to mutual agreement of Landlord, Tenant and
Landlord's lender (if any). To the extent the Cost of Improvements
with respect to the Tenant Improvements exceeds $[...***...] per
square foot (reduced by [...***...] of any amounts deducted from
Landlord's maximum payment obligation as a result of the final
sentence of Paragraph 4(a) hereof), whether as a result of Change
Orders, Tenant Delays and/or Unavoidable Delays or otherwise, the
amount of such excess shall in all events be Tenant's sole
responsibility and expense."
3. Stock Warrants. In partial consideration for Landlord's agreement to
enter into this Amendment and to make a larger tenant improvement allowance
available to Tenant as described above, Tenant agrees to issue and deliver to
Landlord or Landlord's assignees (which may be any partners, shareholders or
affiliates of Landlord or any affiliates of any such partners, shareholders or
affiliates of Landlord) warrants registered in the name of Landlord or
Landlord's assignees, as applicable, for the acquisition of an aggregate of
[...***...] shares of Tenant's common stock (the "Additional Warrants"), which
Additional Warrants shall be in addition to, but (except as otherwise expressly
provided below) shall be in substantially the same form as, the warrants
previously issued by Tenant pursuant to Section 4.1(a) of the Lease for
[...***...] shares (in the aggregate) of Tenant's common stock. Notwithstanding
the preceding sentence, the Additional Warrants shall have an exercise price of
$[...***...] per share, shall be dated as of the date of this Amendment and
shall be exercisable for a period of [...***...] years from the date of
issuance.
4. Use of Union Labor.
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*Confidential Treatment Requested
4.
(a) The fourth sentence of Section 11.1 of the Lease, relating to
the use by Tenant of union contractors for improvements, alterations, additions
and like matters, is deleted in its entirety.
(b) Paragraph 5(a) of the Workletter attached as Exhibit C to the
Lease is amended to read in its entirety as follows:
"(a) Contractor Requirements. The contractor engaged by Tenant
for Tenant's Work, and any subcontractors, shall be duly licensed
in California and shall be subject to Landlord's prior written
approval, which approval shall not be unreasonably withheld or
delayed."
5. Full Force and Effect. Except as expressly set forth herein, the
Lease has not been modified or amended and remains in full force and effect.
6. Landlord's Notice Address. The notice address for Landlord, as set
forth in Section 21.1 of the Lease, is hereby changed to the following:
Britannia Pointe Grand Limited Partnership
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇. ▇. ▇▇▇▇▇▇▇
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as
of the date first set forth above.
"Landlord" "Tenant"
BRITANNIA POINTE GRAND LIMITED SUGEN, INC., a Delaware corporation
PARTNERSHIP, a Delaware limited
partnership
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇-Freke
By: BRITANNIA POINTE GRAND, ---------------------------
LLC, a California limited liability ▇▇▇▇▇▇▇ ▇▇▇▇▇-Freke
company, General Partner Its Chairman and Chief
Executive Officer
By: /s/ ▇.▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇. ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
President & Manager Its: Treasurer
5.
