Exhibit 10.14
SUBLEASE
1. PARTIES.
This Sublease ("Sublease"), dated as of June 15, 2005, is made between
Ascenta Therapeutics, Inc., a Delaware corporation ("Sublessor"), and Somaxon
Pharmaceuticals, Inc., a Delaware corporation ("Sublessee"). The date on which
this Sublease is fully executed by the parties hereto, as indicated on the
signature page to this Sublease, shall be the "Effective Date."
2. MASTER LEASE.
Sublessor is the tenant under that certain Lease dated April 21, 2004 (the
"Master Lease"), wherein Square 24 Associates L.P., a District of Columbia
limited partnership ("Lessor") leased to Sublessor approximately 3,221 rentable
square feet of premises located in the City of San Diego, County of San Diego,
State of California, commonly known as 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxxxxxx 00000 ("Master Premises").
3. PREMISES.
(a) Location of Premises. Sublessor hereby subleases to Sublessee, and
Sublessee subleases from Sublessor, on the terms and conditions set forth in
this Sublease the entire Master Premises (the "Premises").
(b) Condition of Premises. Sublessee shall accept the Premises in as-is
condition upon tender thereof to Sublessee by Sublessor.
4. SUBLESSOR WARRANTY AND COVENANTS.
(a) Sublessor Warranties. Sublessor warrants, represents and covenants to
Sublessee that: (i) Sublessor is not now, and as of the Effective Date will not
be, in material default or breach of any of the provisions of the Master Lease;
(ii) Sublessor has no knowledge of any material default by Lessor under the
Master Lease or any claim by Lessor that Sublessor is in default or breach of
any of the provisions of the Master Lease; (iii) Sublessor shall not take any
action or omit to take any action that would result in a material default or
breach of the Master Lease or, except in case of a breach of this Sublease by
Sublessee, otherwise cause a termination of the Master Lease prior to the
expiration of the Term (as defined in Section 5 below) without Sublessee's prior
written consent which may be withheld in its sole and absolute discretion; (iv)
the Master Lease has not been modified or amended, is in full force and effect
and represents the entire agreement between Sublessor and Lessor relating to the
Premises; and (v) Sublessor shall not modify or amend the Master Lease in any
manner without Sublessee's prior written consent which may be withheld in its
sole and absolute discretion.
(b) Sublessor Covenants. Provided Sublessee is timely paying its rent
(pursuant to Section 7 below) and Sublessee's proportionate share (pursuant to
Section 8 below), Sublessor covenants and agrees with Sublessee that Sublessor
will timely pay all "Annual Rent" (as defined in the Master Lease) and
"Operating Cost " and "Taxes" (each as defined in the Master Lease) payable by
Sublessor pursuant to the Master Lease. Notwithstanding the foregoing, (i)
Sublessor shall cooperate with Sublessee, at no cost to Sublessor, in seeking to
obtain the performance of Lessor under the Master Lease and (ii) Sublessor shall
not commit any act or omission that will result in the intentional violation any
of the provisions of the Master Lease. Upon Sublessee's written request,
Sublessor shall endeavor to enforce its rights under the Master Lease for
Sublessee's benefit, including, but not limited to, giving notices, claims and
demands to and on Lessor; provided, however, that Sublessor shall not be under
any duty to institute legal action against Lessor for any reason.
Notwithstanding the foregoing, if Sublessor materially defaults in any of its
monetary obligations under the Master Lease (unless such default is caused by
Sublessee's failure to pay amounts as and when due under this Sublease), or if
Sublessor becomes insolvent, becomes the subject of a bankruptcy or similar
insolvency proceeding and/or admits in writing its inability to pay its debts as
they become due, Sublessee shall have the right to pay Rent, Operating Cost and
Taxes directly to Lessor.
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5. TERM.
The term of this Sublease ("Term") shall commence five (5) days after
Sublessor has delivered to Sublessee written notice that Sublessor has vacated
the Premises, but not later than June 15, 2005 (the "Commencement Date"). The
Term shall expire coterminous with the Master Lease on April 30, 2006 and
terminate on such date. Sublessee shall be granted occupancy of the Premises on
the Commencement Date.
6. USE.
Sublessee may use the Premises for any use permitted under the Master
Lease and for no other purpose.
7. RENT.
Sublessee shall pay to Sublessor as rent ("Rent"), without deduction,
setoff, notice or demand, at the address set forth in Section 15 below, or at
such other place as Sublessor shall designate from time to time by written
notice to Sublessee, the following sums:
Commencement Date - April 30, 2006 $8,294.08 per month
on the first day of each month of the Term. If the Term begins on a day other
than the first day of a month, the Rent for the partial months shall be prorated
on a per diem basis based on the actual number of days in the month in which the
Sublease commences. Notwithstanding anything contained herein to the contrary,
Sublessee shall have no obligation to make any payments of Rent or any other
amounts required under Section 8 and Sublessor shall have no duty to deliver the
Premises to Sublessee, unless and until Lessor has executed and delivered to
Sublessor a consent to this Sublease ("Consent") in form and substance
satisfactory to Sublessor.
Sublessee shall pay to Sublessor upon delivery by Lessor of its Consent
the sum of twenty-four thousand eight hundred eighty-two and 24/100 dollars
($24,882.24) as security deposit in accordance with paragraph 9 below.
8. SUBLESSEE'S PROPORTIONATE SHARE.
Notwithstanding anything contained in the Master Lease or this Sublease to
the contrary, Sublessee's proportionate share ("Sublessee's Proportionate
Share") of "Operating Cost " and "Taxes" (each as defined in the Master Lease)
in excess of the Base Year amounts shall be eight and fifty-seven hundredths
percent (8.57%) of the building rentable area. Sublessee shall pay Sublessee's
Proportionate Share of Operating Cost and Taxes to Sublessor on the terms and
conditions set forth in the Master Lease. Gas and electricity shall be paid by
Sublessee as provided in the Master Lease.
9. REPLACEMENT FUNDS
Sublessee shall pay to Sublessor upon Sublessee's execution of this
Sublease twenty-four thousand eight hundred eighty-two and 24/100 dollars
($24,882.24) (the "Replacement Funds") to replace Sublessor's deposit with
Lessor under the Master Lease (the "Master Deposit"). Upon Sublessor's receipt
of the Security Deposit, Sublessor agrees to assign, and does hereby irrevocably
assign, to Sublessee all of Sublessor's right and title in and to the Master
Deposit being held by Lessor. Accordingly, the Replacement Funds shall be
retained and fully earned by Sublessor upon its receipt of the same and
nonrefundable to Sublessee, and Sublessee shall have all the rights and
obligations in connection with the Master Deposit being held by Lessor under
Section 20 of the Master Lease, including, but not limited to, the right to the
periodic return of the same from Lessor during the 18th and 22nd months of the
term of the Master Lease and the return of the balance at the end of such term
(all of which are subject to the terms of the Master Lease).
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10. PARKING.
Notwithstanding Section 42 of the Master Lease to the contrary, Sublessee
shall be entitled to the non-exclusive use of thirteen (13) parking spaces in
the parking area. All such parking shall be at no cost to Sublessee.
11. SIGNAGE.
Sublessee does not have any signage rights, except as to directory and
standard door plaque. The cost of all such signs, including the installation,
maintenance and removal thereof, shall be at Sublessee's sole cost and expense.
Sublessor shall use good faith efforts to remove any of its existing signage at
the Premises or the Building, at Sublessor's cost, as soon as reasonably
practicable, but in no event more than fifteen (15) days following Sublessee's
and Sublessor's execution of this Sublease and approval of this Sublease by
Lessor. All such signage shall also comply with all provisions of the Master
Lease applicable thereto.
12. OTHER PROVISIONS OF MASTER LEASE.
(a) Incorporation of Master Lease. All applicable terms and conditions of
the Master Lease are incorporated into and made a part of this Sublease as if
Sublessor were the landlord thereunder, Sublessee the tenant thereunder, and the
Premises were the Master Premises thereunder, except as set forth in Section
12(b) below. Sublessee assumes and agrees to perform the obligations of "Tenant"
under the Master Lease during the Term to the extent that such obligations are
applicable to the Premises, except that the obligation to pay "Annual Rent",
"Operating Cost" and "Taxes" to Lessor under the Master Lease shall be
considered performed by Sublessee to the extent and in the amount Rent is paid
to Sublessor in accordance with Sections, 7 and 8 of this Sublease.. Sublessee
shall not commit or suffer any act or omission that will violate any of the
provisions of the Master Lease. If the Master Lease terminates for any reason
other than Sublessor's default, this Sublease shall terminate and the parties
shall be relieved of any further liability or obligation under this Sublease
except to the extent of any then pending or accrued claims.
(b) Exclusions from Master Lease. Notwithstanding anything contained in
this Sublease or the Master Lease to the contrary, the incorporation of the
Master Lease provisions into this Sublease shall not include the following
provisions of the Master Lease:
(i) From the Reference Page, the following definitions: "Termination
Date," "Term of Lease," "Initial Annual Rent," "Initial Monthly Installment of
Annual Rent," "Tenant's Proportionate Share" and "Real Estate Broker Due
Commission";
(ii) Clauses A and B of Section 3;
(iii) Section 23;
(iv) Section 30; and
(v) Appendix C
In the event of any inconsistency between the terms of this Sublease and
the Master Lease, the terms of this Sublease will govern and control the rights
and obligations of Sublessor and Sublessee.
13. DEFAULT/ATTORNEYS' FEES.
In the event Sublessee fails to timely pay Rent, Sublessee's Proportionate
Share or any other amounts as and when due under this Sublease, or commits any
other default or breach of this Sublease, Sublessor shall, except to the extent
limited by the Master Lease or this Sublease, be entitled to exercise all
remedies available under California law including but not limited to,
terminating this Sublease and recovering damages under Civil Code Section
1951.2, or the remedy described in California Civil Code Section 1951.4.
Sublessor may, but shall not be obligated to, continue this Sublease in effect
after Sublessee's breach and abandonment and recover
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Rent and other sums due hereunder as they become due. Without limiting the
foregoing, in the event that either party hereto commits a material default or
breach of this Sublease, the other party shall be entitled to exercise all
remedies available to it under California law. If Sublessor or Sublessee shall
commence an action against the other arising out of or in connection with this
Sublease, the prevailing party shall be entitled to recover its costs of suit
and reasonable attorneys' fees.
14. AGENCY DISCLOSURE.
Sublessor and Sublessee each warrant that they have dealt with no other
real estate broker in connection with this transaction except CarrAmerica Realty
Corporation, who represents Sublessor and Sublessee.
15. NOTICES.
All notices and demands that may or are to be required or permitted to be
given by either party on the other hereunder shall be in writing and shall be
mailed, sent by facsimile with a transmission report of receipt, or personally
delivered to the applicable party at the address set forth below, or to such
other place as either party may from time to time designate in a notice to the
other party:
If to Sublessor: Ascenta Therapeutics, Inc.
11455 X0 Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxxx
If to Sublessee: Somaxon Pharmaceuticals, Inc.
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxx X. XxXxxxxx, Vice President & Chief Financial Officer
In addition, Sublessor agrees to forward to Sublessee, promptly upon
receipt thereof by Sublessor, a copy of each notice given or received by
Sublessor in its capacity as tenant under the Master Lease.
16. QUIET ENJOYMENT.
So long as Sublessee pays all Rent and other sums due hereunder and
performs all of Sublessee's other obligations hereunder, Sublessee may peaceably
and quietly have, hold and enjoy the Premises during the Term as against all
persons and entities lawfully claiming by and through Sublessor.
17. CONSENT BY LESSOR. THIS SUBLEASE SHALL BE OF NO FORCE OR EFFECT UNLESS
CONSENTED TO BY LESSOR WITHIN TEN (10) DAYS AFTER EXECUTION HEREOF, IF SUCH
CONSENT IS REQUIRED UNDER THE TERMS OF THE MASTER LEASE.
18. ENTIRE AGREEMENT.
There are no oral agreements between the parties hereto affecting this
Sublease and this Sublease supersedes and cancels any and all previous
negotiations, arrangements, brochures, agreements and understandings, if any,
between the parties hereto or displayed by Sublessor to Sublessee with respect
to the subject matter thereof, and none thereof shall be used to interpret or
construe this Sublease. This Sublease contains all of the terms, covenants,
conditions, warranties and agreements of the parties relating in any manner to
the rental, use and occupancy of the Premises and shall be considered to be the
only agreements between the parties hereto and their representatives and agents.
None of the terms, covenants, conditions or provisions of this Sublease can be
modified, deleted or added to except in writing signed by the parties hereto.
All negotiations and oral agreements acceptable to both parties have been merged
into and are included herein.
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There are no other representations or warranties between the parties, and all
reliance with respect to representations is based totally upon the
representations and agreements contained in this Sublease. This Sublease may be
executed in counterparts, which, when taken together, shall constitute a single
document.
[Remainder of page intentionally left blank - signature page follows]
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SUBLESSOR: SUBLESSEE:
Ascenta Therapeutics, Inc. Somaxon Pharmaceuticals, Inc.
a corporation a corporation
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxx XxXxxxxx
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Name: Xxxxx X. Xxxxxxx Name: Xxx XxXxxxxx
Title: CFO Title: CFO
Date: June 15, 2005 Date: June 20, 2005
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