Exhibit 10.4
CONSENT TO SUBLEASE
AGREEMENT
THIS CONSENT TO SUBLEASE AGREEMENT
(this “ Agreement ”) is made as of
August 16, 2011, by and among HCP Life Science REIT, Inc., a
Maryland corporation (“ Landlord ”), Exelixis
Inc., a Delaware corporation (“ Tenant ”), and
Nodality, Inc., a Delaware corporation (“ Subtenant
”).
R
E C I
T A L S
A. Reference is hereby made to that
certain Build-to-Suit Lease dated as of May 12, 1999 between
Landlord and Tenant (as amended by that certain First Amendment to
Build-to-Suit Lease dated as of March 29, 2000, that certain
Second Amendment to Build-to-Suit Lease dated as of
January 31, 2001, and that certain Third Amendment to
Build-to-Suit Lease dated as of May 24, 2001, the “
Lease ”), for the buildings located at 169 Harbor Way
and 170 Harbor Way in South San Francisco, California (each, a
“ Building ” and collectively, the “
Premises ”).
B. Pursuant to the terms of
Article 13 of the Lease, Tenant has requested
Landlord’s consent to that certain Sublease dated
July 25, 2011, between Tenant and Subtenant (the “
Sublease ”), with respect to a subletting by Subtenant
of a portion of the Premises, as more particularly described in the
Sublease (the “ Sublet Premises ”). A copy of
the Sublease is attached hereto as Exhibit A . Landlord is
willing to consent to the Sublease in the terms and conditions
contained herein.
C. All defined terms not otherwise
expressly defined herein shall have the respective meanings given
in the Lease.
A
G R E
E M E N T
1. Landlord’s Consent .
Landlord hereby consents to the Sublease; provided, however,
notwithstanding anything contained in the Sublease to the contrary,
such consent is granted by Landlord only upon the terms and
conditions set forth in this Agreement. The Sublease is subject and
subordinate to the Lease. Landlord shall not be bound by any of the
terms, covenant, conditions, provisions or agreements of the
Sublease. Subtenant acknowledges for the benefit of Landlord that
Subtenant accepts the Sublet Premises in their presently existing,
“as-is” condition and that Landlord has made no
representation or warranty to Subtenant as to the compliance of the
Sublet Premises with any law, statute, ordinance, rule or
regulation. Tenant and Subtenant hereby represent and warrant to
Landlord that the copy of the Sublease attached hereto is a full,
complete and accurate copy of the Sublease, and that there are no
other documents or instruments relating to the use of the Sublet
Premises by Subtenant other than the Sublease.
2. Reimbursement of Landlord
. Within five (5) days after invoice, Tenant shall reimburse
Landlord all of Landlord’s reasonable costs and expenses
incurred in connection with its review and consent of the Sublease
and preparation and negotiation of this Agreement.
[Consent to Sublease]
3. Non-Release of Tenant; Further
Transfers . Neither the Sublease nor this consent thereto shall
release or discharge Tenant from any liability, whether past,
present or future, under the Lease or alter the primary liability
of the Tenant to pay the rent and perform and comply with all of
the obligations of Tenant to be performed under the Lease
(including the payment of all bills rendered by Landlord for
charges incurred by the Subtenant for services and materials
supplied to the Sublet Premises). Neither the Sublease nor this
consent thereto shall be construed as a waiver of Landlord’s
right to consent to any further subletting either by Tenant or by
the Subtenant, or to any assignment by Tenant of the Lease or
assignment by the Subtenant of the Sublease, or as a consent to any
portion of the Sublet Premises being used or occupied by any other
party. Landlord may consent to subsequent sublettings and
assignments of the Lease or any amendments or modifications thereto
without notifying Subtenant nor anyone else liable under the
Sublease and without obtaining their consent. No such action by
Landlord shall relieve such persons from any liability to Landlord
or otherwise with regard to the Sublet Premises.
4. Relationship With Landlord
. Tenant hereby assigns and transfers to Landlord the
Tenant’s interest in the Sublease and all rentals and income
arising therefrom, subject to the terms of this
Section 4 . Landlord, by consenting to the Sublease
agrees that until the earlier of (a) the occurrence of a
default in the performance of Tenant’s obligations under the
Lease which remains uncured beyond any applicable notice and cure
period, or (b) the occurrence of a Recurring Rent Default
(defined below), Tenant may receive, collect and enjoy the rents
accruing under the Sublease. In the event Tenant shall default in
the performance of its obligations to Landlord under the Lease
(whether or not Landlord terminates the Lease, except i