Exhibit 10.88
SUBLEASE
400 Oyster Point Blvd., Ste.
503
South San Francisco, California
THIS SUBLEASE AGREEMENT
(“Sublease”) is made and entered into on March 27,
2009 by and between TITAN PHARMACEUTICAL, INC., a Delaware
corporation (hereinafter “Sublessor”), and ANESIVA,
INC., a Delaware corporation (hereinafter
“Sublessee”).
WHEREAS
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A.
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Sublessor is
“Tenant” under that certain Office Lease dated
February 14, 1996, as amended by that certain First Amendment
to Lease dated March 25, 1997, Second Amendment to Lease dated
May 22, 1998, Third Amendment to Lease dated November 11,
2000, Fourth Amendment to Lease dated April 9, 2001, Fifth
Amendment to Lease dated December 5, 2001, Sixth Amendment to
Lease dated August 1, 2002, Seventh Amendment to Lease dated
October 1, 2004, Eight Amendment to Lease dated May 22,
2007, and Ninth Amendment to Lease dated February 11, 2009
(collectively, the “Master Lease”) by and between
Kashiwa Fudosan America, Inc., as landlord (the “Master
Landlord”), and Sublessor, as tenant, for office space more
particularly described therein (“Leased Premises”) and
located in an office building located in the City of South San
Francisco, County of San Mateo, State of California, commonly known
as 400 Oyster Point Blvd. (“Building”); and
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B.
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Sublessor
desires to sublease to Sublessee and Sublessee desires to sublease
from Sublessor, a portion of the Leased Premises containing exactly
sixty-eight hundred seventy-one square feet (6,871 s.f.) of
interior space in a portion of the Leased Premises identified as
Suite 505 (the “Subleased Premises”) and as more
particularly depicted on Exhibit A annexed hereto and made a part
hereof by reference, which Subleased Premises, once demised from
the Leased Premises, will be known and designated as Suite
503.
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NOW THEREFORE
, for and in consideration of the
Subleased Premises and mutual covenants herein contained and for
other good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged, the parties hereby agree as
follows:
1. Demise . Sublessor does
hereby sublease and demise to Sublessee, and Sublessee does hereby
hire from Sublessor, the Subleased Premises, together with the
licenses, rights, privileges and easements appurtenant thereto
including, without limitation, the non-exclusive right in and to
the use of any and all common or public areas or facilities for the
benefit of occupants of the Building.
2. Term . Subject to
Paragraph 11 below, the term of this Sublease shall commence on
April 1, 2009 (the “Commencement Date”), and shall
expire on June 29, 2010, unless sooner terminated or further
extended pursuant to the provisions hereof (the
“Term”). In order to induce
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Sublessee to execute this Sublease and in
consideration thereof, Sublessor covenants, warrants and represents
to Sublessee that the Master Lease is, as of the Effective Date,
and will be, as of the Commencement Date, in full force and effect
and the then-remaining term thereof will not expire before the
expiration of the Term hereof.
3. Early Entry . Any time
between the Effective Date and the Commencement Date, Sublessee
shall have the right to enter the Subleased Premises to
(a) inspect the physical condition thereof and conduct its due
diligence investigation to determine the suitability of the
Subleased Premises for Sublessee’s intended use and
operation, (b) inspect Sublessor’s Work (as hereinafter
defined), and/or (c) to do such other and further things as
Sublessee may deem appropriate so long as Sublessee complies with
all of the terms and conditions hereof; and provided,
however , that such entry does not unreasonably interfere
with Sublessor’s performance of Sublessor’s Work. Such
early entry shall not be construed as an acceptance of the
Subleased Premises by Sublessee under the provisions of this
Sublease, as an attempt to violate, negate or avoid Master
Landlord’s rights under Article 17 of the Master Lease, or as
evidence of the occurrence of the Commencement Date
hereunder.
4. Rent .
Commencing on the Commencement Date, Sublessee shall pay to
Sublessor as full and complete rent for the Subleased Premises an
amount equal to One and 30/100 Dollars ($1.30) per square foot of
the Subleased Premises (i.e., 6,871 s.f.) per month, payable in
advance, on the first (1 st ) day of each calendar
month of the Term hereof (“Rent”); provided,
however , that Rent shall fully and completely abate from
the Commencement Date through May 31, 2009 (the “Free
Rent Period”). Notwithstanding the foregoing, Sublessee shall
pay to Sublessor on the Commencement Date an amount equal to one
month’s Rent, which Sublessor shall apply to the first
payment of Rent that becomes due and payable by Sublessee after the
expiration of the Free Rent Period. In the event any portion of the
Term shall constitute less a full calendar month, Rent for such
partial calendar month shall be prorated on a day-for-day basis
such that Sublessee shall pay Rent only for the portion of each
such partial calendar month as falls within the Term.
5. Security Deposit .
Immediately after the Effective Date hereof (and no later than the
Commencement Date), Sublessee shall deposit with Sublessor an
amount equal to one month’s Rent, to be held and retained by
Sublessor throughout the Term and returned by Sublessor to
Sublessee promptly at the expiration or earlier termination of this
Sublease, less any monies reasonably retained by Sublessor as
reimbursement of reasonable expenses actually incurred by Sublessor
to repair damage to or facilitate cleaning of the Subleased
Premises that Sublessee failed to perform to the standards required
by the Master Lease.
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6. Sublessor’s Work .
Sublessor, at its sole cost and expense, shall supply the existing
furniture located within the Subleased Premises for
Sublessee’s exclusive use (“Sublessor’s
Work”). In addition to the foregoing, Sublessor and Sublessee
agree to diligently and in good faith coordinate mutual on-going
access to and operation of a common server room located in the
Subleased Premises including, without limitation, the phone
system(s) therein, such that both Sublessor and Sublessee shall
have use of and access to such system(s) throughout the
Term.
7. Use . The Subleased
Premises shall be used and occupied for executive and general
offices and for no other purposes without Sublessor’s prior
written consent, not to be unreasonable conditioned, withheld or
delayed.
8. Master Lease . Sublessee
acknowledges and agrees that Sublessor has provided Sublessee with
a copy of the Master Lease inclusive of all amendments as more
particularly described in the recitals hereof. With knowledge of
the content of the Master Lease, Sublessor and Sublessee hereby
agree that:
a. This Sublease and all rights of
Sublessee hereunder and with respect to the Subleased Premises are
subject and subordinate to the terms, conditions and provisions of
the Master Lease subject, however, to the terms and conditions of
any Recognition Agreement (as defined in Paragraph 14 below). As to
the Subleased Premises only, Sublessee hereby assumes and agrees,
jointly and severally with Sublessor, to perform faithfully and be
bound by all of Sublessor’s obligations, covenants,
restrictions and agreements under the Master Lease, except that as
between Sublessor and Sublessee, Sublessee shall not be liable or
responsible for any monetary obligations under the Master Lease
including, without limitation, Rent, Operating Expenses, Real
Estate Taxes and Code Costs, which Sublessor hereby agrees shall be
solely the liability and responsibility of Sublessor and with
respect to which Sublessor hereby indemnifies Sublessee.
b. Without limiting the
foregoing:
i. Sublessee shall not make any
material changes, alterations or additions in or to the Subleased
Premises without first obtaining Sublessor’s prior written
consent, which shall not be unreasonably withheld, conditioned or
delayed; provided, however , Sublessee shall not be
required to obtain Sublessor’s consent in any circumstance
under which Sublessor is not required under Article 9 of the Master
Lease to obtain the Master Landlord’s consent
therefor.
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ii. If Sublessee desires to take any
other action, which, if such action were taken by Sublessor would
require Master Landlord’s consent under the Master Lease,
Sublessee shall not take such action without first obtaining the
written consent of Master Landlord; provided, however
, if the Master Landlord refuses to acknowledge Sublessee’s
request for consent due to lack of privity or otherwise, Sublessor
shall make the request, in form and substance approved by
Sublessee, for Master Landlord’s consent pursuant to the
Master Lease for and on behalf of Sublessee.
iii. Rights of the Master Landlord,
its agents and representatives under the Master Lease to enter the
Leased Premises shall inure to the benefit of Sublessor, its agents
and representatives, with respect to the Subleased Premises if and
to the extent such entry by Sublessor is reasonably necessary to
facilitate the entry by Master Landlord under the Master Lease and
provided that Sublessor shall have given Sublessee comparable
notice of such entry under this Sublease as the Master Landlord is
required to give Sublessor under the Master Lease.
iv. Sublessee shall maintain
insurance of the kinds and in the amounts required to be maintained
by Sublessor under the Master Lease, except that all policies of
liability insurance shall name as additional insureds both the
Master Landlord and the Sublessor.
v. Sublessee shall not intentionally
or negligently take any action or fail to take any action that is
reasonably likely to cause an Event of Default under the Master
Lease or that would cause the Master Lease to be cancelled or
terminated.
c. Notwithstanding anything
contained herein or in the Master Lease to the contrary, Sublessor
and Sublessee hereby agree as follows:
i. Except as otherwise expressly set
forth herein, Sublessee shall not assign, mortgage, pledge,
hypothecate or otherwise transfer or permit the transfer of
Sublessee’s interest in this Sublease, by operation of law or
otherwise, or permit the use of the Subleased Premises or any part
thereof by any person other than Sublessee, its officers,
directors, partners, employees or agents, or further sublet the
Subleased Premises or any part thereof, without the prior written
consent of Sublessor, which shall not be unreasonably withheld,
conditioned or delayed, and if and to the extent required under the
Master Lease, the prior written consent of Master Landlord. For the
purposes hereof, Sublessor and Sublessee acknowledge
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and agree that as to
Sublessor’s consent right under this Paragraph 8(c)(i), it
shall constitute reasonable grounds to deny consent to an
assignment or further sublease if the proposed assignee or
sub-subtenant (together with any guarantor) is not, in
Sublessor’s reasonable judgment, financially capable of
paying the Rent hereunder. Notwithstanding the foregoing, in the
event Sublessee is a publicly traded company, the public trading of
Sublessee’s shares (including pink sheets and counter
trading) shall not be deemed a transfer under this Sublease. In
addition to and not in limitation of the foregoing, Sublessee shall
have the right from time to time, without the consent of Sublessor
to assign Sublessee’s interest in this Sublease and/or to
sublet or license all or any portion of the Subleased Premises:
(i) to an affiliate (as defined in Section 17.1.1 of the
Master Lease) of Sublessee; (ii) to any entity which purchases
all or substantially all of the assets of Sublessee; (iii) in
conjunction with any merger, acquisition, consolidation or public
offering of stock or other interests involving Sublessee; and/or
(v) as may be required by any law. If Sublessor shall give its
consent under this Paragraph 8(c)(i), Sublessee shall, in
consideration therefor, pay to Sublessor one hundred percent
(100%) of all sums and other consideration actually paid to
Sublessee by the assignee or sub-subtenant for or by reason of such
assignment or sub-subletting as such sums exceed any amounts
payable by Sublessee to Sublessor hereunder.
ii. Rent shall not abate by reason
of any damage to or destruction of the Subleased Premises, the
Leased Premises or the Building or any part thereof, unless, and
then only with respect to the same period of time that, rental and
such other payments are actually abated under the Master Lease with
respect to the Subleased Premises on account of such damage or
destruction.
iii. Sublessee shall not have any
right to any portion of the proceeds of any award for a
condemnation or other taking, or a conveyance in lieu thereof, of
all or any portion of the Building, the Leased Premises or the
Subleased Premises; provided, however , that
Sublessee shall have the right to file any separate claim available
to Sublessee for any taking of Sublessee’s personal property
and fixtures belonging to Sublessee and removable by Sublessee on
expiration of the Term (excluding Sublessor’s Work), and for
moving expenses and/or relocation costs, so long as any such claim
does not diminish the award available to Sublessor and/or Master
Landlord and so long as any such claim is payable separately to
Sublessee.
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iv. Sublessee shall not benefit from
(i) any rent concessions or abatements, (ii) any
construction allowances, (iii) any right to renew or extend
the term of the Master Lease, (iv) any right to terminate the
Master Lease, or (v) any right of first refusal or first offer
under the Master Lease; provided, however , that the
foregoing shall not diminish any similar right inuring to Sublessee
if expressly set forth herein.
v. All of the terms, covenants,
conditions and provisions of the Master Lease shall be and hereby
are incorporated into the Sublease as if fully set forth herein,
except to the extent otherwise expressly provided to the contrary
or to the extent of a conflict between this Sublease and the Master
Lease, in which event the terms, covenants, conditions and
provisions of the Sublease shall control.
vi. Subject to any Recognition
Agreement, the Term of this Sublease shall terminate, without
liability of Sublessor to Sublessee, if the Master Landlord
terminates the Master Lease.
9. Default .
a. It shall be an Event of Default
upon the happening of any of the following:
i. Sublessee fails to pay any Rent
hereunder and such failure continues for five (5) days after
Sublessee’s receipt of written notice thereof from Sublessor
to Sublessee;
ii. Sublessee fails to pay any other
amount due from Sublessee hereunder for which Sublessee has
received written notice from Sublessor that such amount is due, and
such failure continues for ten (10) days after
Sublessee’s receipt of written notice of such failure to pay
from Sublessor to Sublessee;
iii. Sublessee fails to perform or
observe any other material covenant or agreement set forth in this
Sublease and such failure continues for thirty (30) days after
Sublessee’s receipt of written notice thereof from Sublessor
to Sublessee (it being intended in connection with a default not
susceptible of being cured with due diligence within said thirty
(30) day period that the time allowed Sublessee within which
to cure same shall be extended for such period as may be necessary
to complete same with all due diligence); or
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iv. Any other event occurs that
involves Sublessee or is caused by Sublessee within the Subleased
Premises and with regard to which (y) Sublessor has received
notice from Master Landlord that the same constitutes a default
under the Master Lease, and (z) Sublessor has provided
Sublessee with a copy of such written default notice from Master
Landlord, and Sublessee fails to cure such default as claimed by
Master Landlord before that default matures into an Event of
Default under the Master Lease, but only to the extent that
Sublessee is responsible for the event giving rise to Master
Landlord’s default notice.
b. It shall be an Event of Sublessor
Default upon the happening of any of the following:
i. Sublessor fails to pay timely any
Rent, Operating Expenses, Real Estate Taxes, Code Costs or other
amounts due and payable under the Master Lease and such failure
becomes an Event of Default under the Master Lease;
ii. Sublessor fails to perform or
observe any