EXHIBIT 10.33
SUBLEASE AGREEMENT
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Toshiba America Medical Systems, Inc. ("TAMS"), located at 280 Utah Ave, South
San Francisco, CA, and Exelixis, Inc. ("TENANT"), located at 170 Harbor Way,
South San Francisco, CA hereby agree (the "Sublease Agreement") as follows:
1. SUBLEASE. TAMS hereby subleases to TENANT approximately 8,000 square
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feet (the "Premises") of the space leased by TAMS at 280 Utah Ave., South
San Francisco, CA, (the "Facility") under the Lease Agreement ("Lease
Agreement") entered into between TAMS and Simeon Commercial Properties,
Inc. ("Landlord"). The Lease Agreement is attached hereto and by this
reference is deemed incorporated into this Sublease Agreement. The Premises
is identified on the attached "Exhibit B".
2. NO WARRANTIES. Except for delivery of the Premises in broom clean
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condition, TAMS subleases the Premises to TENANT AS IS, without any
warranties whatsoever concerning the condition of the Premises or the
suitability of the same for TENANT's purposes. To the extent required, TAMS
must obtain the consent of Landlord as a condition to the effectiveness of
this Sublease Agreement.
3. TERM. The term of this Sublease Agreement will begin on May 1, 2002 and
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end on March 31, 2004. However, TAMS may terminate this Sublease Agreement
upon thirty (30) days prior written notice during its term should TENANT
breach any of the terms and conditions specified in the Sublease Agreement.
TAMS may also avail itself of any other remedies provided under the law.
4. RENTAL. The monthly rental to be paid by TENANT will be as follows:
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March 1, 2002 through March 31, 2003 - $10,800.00
April 1, 2003 through March 31, 2004 - $11,120.00
The first installment of rent ($10,800.00) shall be paid upon execution of
this Sublease Agreement. Future installments, along with any "additional
rent", as specified herein, will be paid in advance no later than the first
day of each month throughout the term of this Sublease Agreement at the
following address (or any other to be designated by TAMS):
TOSHIBA AMERICA MRI, INC.
280 Utah Avenue,
South San Franciso, Ca. 94080
Attention: Accounts Payable
All rentals paid after due date will be assessed a late payment charge of
the lesser of 1 1/2% per month or the maximum rate permitted by law. TAMS
may require TENANT to pay the rent quarterly, in advance, if TENANT tenders
late rent payments on three (3) or more occasions during the sublease term.
Should TAMS take such action, it does not constitute a waiver of any other
rights or remedies TAMS may have regarding late or non-payment of rent by
tenant.
5. OPERATING EXPENSES, UTILITIES AND TAXES. In addition to the
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obligations specified in Section 4 above, TENANT shall pay for:
- All Personal property taxes associated with the use, occupancy or
contents of the Premises.
- All costs related to the security, housekeeping,
data/telecommunications (service, equipment and maintenance) and
maintenance of the Premises.
- Tenant's proportionate share of all costs associated with the Premises
where such costs are billed to TAMS as part of the overall cost of the
Facility.
To the extent that such payments will be made directly to the service
provider by TENANT, TENANT will make each payment when due. Proportionate
share payments will be considered "additional rent", and must be paid to
TAMS in accordance with Section 4 above.
6. PARKING. TENANT may use all parking and shall pay for the same to the
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extent specified in the Lease Agreement. But in no event will TENANT be
allowed to use more than 32 parking spaces at any one time
8. SECURITY DEPOSIT. Upon execution of this Sublease Agreement, TENANT is
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to pay TAMS the sum of $10,800 (Ten Thousand and Eight Hundred dollars), to
be used as security deposit for the performance of TENANT's obligations
under this Sublease Agreement including, without limitation, the surrender
of possession of the Premises to TAMS upon expiration of the term of this
Sublease Agreement. It is expressly understood and agreed that such deposit
is not an advance rental deposit or a measure of TAMS' damages in case of
TENANT's default. If TAMS applies any part of the security deposit to cure
any default of TENANT, TENANT will, upon demand, deposit with TAMS the
amount so applied so that TAMS will have the full deposit on hand at all
times during the term of this Sublease Agreement. No interest will be due
on the security deposit and TAMS will not be obligated to apply the
security deposit to rents or other charges in arrears or to damages for
TENANT's failure to perform under this Sublease Agreement. However, TAMS
may so apply the security deposit at TAMS' option, and TAMS' right to
possession of the Premises for nonpayment of rent or for any other reason
will not in any way be affected by reason of the fact that TAMS holds such
security deposit.
Based on the obligations set forth in Section 4 and this Section 8,
Tenant's payment obligation upon execution of this Sublease Agreement shall
be $21,600.00 (Twenty One Thousand and Six Hundred Dollars).
9. TENANT IMPROVEMENTS. TAMS will, it its sole expense, construct a demising
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wall, as noted on Exhibit B. Any and all other improvements required by the
TENANT will be at the sole expense of the TENANT, and must approved by TAMS
per the terms of the Lease Agreement.
10. FINANCIAL INFORMATION. TENANT will provide TAMS with all financial
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information reasonably requested by TAMS from time to time to determine
TENANT's ability to comply with its obligations under this Sublease
Agreement.
11. ASSUMPTION OF OBLIGATIONS. TENANT agrees to fully perform all of the
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obligations of TAMS (except TAMS' obligation to pay rent, and except as
otherwise specified in this Sublease Agreement) under the terms of the
Lease Agreement with respect to the Premises and to accord TAMS all of the
rights, privileges, and indemnities with respect to and from TAMS to
Landlord under the Lease Agreement and agrees that all of the terms and
conditions of the Lease Agreement as applied to the Premises are hereby
incorporated in this Sublease Agreement, including, without limitation, the
obligation to maintain and repair the Premises.
12. INDEMNIFICATION. TENANT will defend, indemnify, and hold TAMS harmless
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from all claims, damages, liabilities, and costs (including attorney's
fees) arising out of TENANT's failure to comply with its obligations under
this Sublease Agreement or otherwise arising out of TENANT's occupancy of
the Premises, including, without limitation, any claim made by the
Landlord. TAMS will defend, indemnify, and hold TENANT harmless from all
claims, damages, liabilities, and costs (including attorney's fees) arising
out of failure by TAMS to comply with its obligations under this Sublease
Agreement or the Master Lease, including, without limitation, any claim
made by Landlord against TENANT with respect to such failure or breach by
TAMS.
13. ATTORNEY'S FEES. In the event of any legal proceeding involving any
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party to this Sublease Agreement against the other relating to the subject
matter of this Sublease Agreement, the prevailing party in such proceeding
will be entitled to recover attorney's fees, expert fees, and court costs
against the non-prevailing party.
14. USE OF FACILITY LOBBY. TENANT, its employees, guests and invitees
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may use the Facility Lobby entrance but none of the services provided
therein, other than the use of the vending machine area, restrooms, and
elevator which are considered as part of the common shared rental space.
15. ENTIRE AGREEMENT; MODIFICATION. This Agreement and its attachments
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contain the entire agreement and understanding between the parties relating
to its subject matter. It supersedes all prior agreements and
understandings, whether oral or written, relating to such subject matter.
It also supersedes all standard terms and conditions on any form to be
exchanged between the parties, including, invoice, purchase order, order
acknowledgment, quotation and delivery documents. This Agreement may not be
amended or modified in any manner except by means of a writing executed by
all parties.
TOSHIBA AMERICA MEDICAL SYSTEMS, INC. EXELIXIS, INC.
BY: /s/ Fredric J. Friedberg BY: /s/ George A. Scangos
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FREDRIC J. FRIEDBERG GEORGE A. SCANGOS PH.D.
SENIOR VICE PRESIDENT PRESIDENT & CEO
DATED: April 12, 2002 DATED: April 8, 2002
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