SUBLEASE Mount Eden Business Park Hayward, California
EXHIBIT
10.12
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
THIS SUBLEASE (this “Sublease”), dated for reference purposes only, August 1, 2008, is made by
and between Guava Technologies, (“Sublandlord”), a Delaware Corporation and Anthera
Pharmaceuticals, a Delaware corporation (“Subtenant”).
RECITALS
A. Newtower Trust Company Multi-Employer Property Trust, as Landlord, and Sublandlord, as
Lessee, entered into a Lease dated July 2006 (the “Master Lease”), a copy of which is attached
hereto as Exhibit “A” and incorporated by reference herein, with respect to certain real property
located in Mount Eden Business Park, including all improvements thereon, commonly known as ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the “Sublease Property”). The Sublease Property includes a
building thereon containing approximately 42,885 rentable square feet (the “Building”).
B. Sublandlord wishes to sublease a portion of the Building to Subtenant and Subtenant wishes
to sublease a portion of the Building from Sublandlord upon the terms and conditions contained
herein.
AGREEMENT
In consideration of the covenants and promises contained herein, the parties agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Master Lease.
2. Sublease Premises. The premises shall comprise of approximately (7,794) rentable square
feet being a portion of a single story building located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇,
as more particularly depicted on Exhibit “A” attached hereto (the “Sublease Premises”). Sublandlord
hereby leases to Subtenant and Subtenant hereby leases from Sublandlord the Sublease Premises
subject to and on the terms and conditions set forth herein. During the Term, Tenant shall have
use of the Common Area.
3. Common Area. Subtenant shall have access and use of the common area of the Sublease
Property, including, without limitation, the common area lobby, restrooms, server room, cafeteria
room and kitchen/cafeteria, and the two (2) lobby conference
rooms.
4. Sublandlord Improvements. On or before the Commencement Date, Sublandlord at Sublandlord’s
sole cost and expense shall demise the Sublease Premises, and build an additional four (4)
private offices and one conference room in accordance with the space plan attached hereto as
Exhibit “C”. Subtenant will not be required to restore Sublease Premises to its original
condition.
5. FF&E. Subtenant shall have use of all existing Furnishings, Fixtures & Equipment in the
Sublease Premises throughout Sublease term at no cost to Subtenant. Subtenant requires Sublandlord
to provide twenty (20) office workstations in the Sublease Premises, and Sublandlord shall provide
such workstations on or before the Commencement Date at Sublandlord’s sole cost.
6. Term. The term of this Sublease shall be for twenty-four (24) months commencing on
October 1, 2008 (the “Commencement Date”) and expiring at 5:00 p.m. local time on September 30,
2010 unless sooner terminated pursuant to any provision hereof.
7. Option To Renew. Subtenant shall have one (1) option to renew for ten (10) Months (the
“Option Term”), but in no event shall the sublease term be
extended beyond the Master Lease
termination date of July 31, 2011.
8. Rent.
(a) Subtenant shall pay to Sublandlord as Sublease Monthly Base Rent (“Sublease Monthly Base
Rent”) for the first month of the Term the sum of Seven Thousand Seven Hundred Ninety Four Dollars
($7,794.00) upon the execution and delivery of this Sublease by Sublandlord and Subtenant, and upon
Sublandlord obtaining written consent of the Master landlord under the Master Lease to this
Sublease. Subtenant shall pay to Sublandlord Sublease Monthly Base Rent for the remainder of the
term in monthly installments in advance on the first day of each calendar month, as follows:
Months 01 — 24 (and Months 01 — 10 of the Option Term, if applicable): $7,794.00
Sublease Monthly Base Rent for any period during the term which is less than one calendar
month shall be a pro rata portion of the monthly installment based on a 30-day month.
(b) In addition to the Sublease Monthly Base Rent, except for those items of Operating Costs
that Subtenant is paying directly to the provider, Subtenant shall pay to Sublandlord as additional
rent its pro rata share of Operating Cost Reimbursements (as defined in the Master Lease) pursuant
to Paragraph 3 and Rider 1 of the Master Lease, plus sublessee’s pro rata share of all utilities,
maintenance, and janitorial services. Subtenant’s pro rata share of Operating Cost Reimbursements
is based on the following: Subtenant’s pro rata share of the Building Costs is 18.19%, and
Subtenants’ pro rata share of the Project Costs is 2.1%.
(c) Computation of Operating Costs Reimbursement — The determination and computation of the
Operating Costs Reimbursements shall be made by the Sublandlord. After the close of each calendar
year, Sublandlord shall deliver to Subtenant a written statement
setting forth the Operating Costs
Reimbursements payable for the preceding calendar year. If the Operating Costs Reimbursements
exceed the Operating Costs Reimbursements Estimate paid by Subtenant, Subtenant shall pay the
amount of such excess to Sublandlord with twenty (20) days after delivery of such statement to
Subtenant. If such statement shows the Operating Costs Reimbursements to be less than the
Operating Costs Reimbursements Estimate paid by Subtenant, then the amount of such overpayment
shall be paid by Sublandlord to Subtenant within twenty (20) days following the date of such
statement or, at Sublandlord’s option, shall be credited toward future installment(s) of Operating
Costs Reimbursements Estimate.
(d) Sublease Monthly Base Rent, additional rent, and all other sums which Subtenant is
obligated to pay under the terms of this Sublease shall constitute “Rent.” Rent shall be payable
in monthly installments in advance on the first day of each calendar month in lawful money of the
United States to Sublandlord at the address stated herein without deduction or offset and without
prior demand or notice, unless otherwise specified herein.
(e) Operating Costs Audit — Sublandlord shall maintain records concerning estimated and
actual Operating Costs Reimbursements for no less than twelve (12) months following the period
covered by the statement or statements furnished to Subtenant, after which time Sublandlord may
dispose of such records. Reimbursements or other payments required to be made by it under this
sublease and provided that Subtenant is not otherwise in default under this sublease,
Subtenant, may, at Subtenant’s sole cost and expense,
inspect Sublandlord’s records. Such
inspection shall be conducted no more than once each year, during Sublandlord’s normal business
hours, within ninety (90) calendar days after receipt of Sublandlord’s written statement of
Operating Costs Reimbursements for the previous year, upon first furnishing Sublandlord at least
twenty (20) calendar days prior written notice. Any error disclosed by the review shall be
promptly corrected by Sublandlord; provided, however, that if Sublandlord disagrees with
any such claimed errors, Sublandlord shall have the right to cause another review to be made by an
auditor of Sublandlord’s choice. In the event the results of the review of records (taking into
account, if applicable, the results of any additional review caused by Sublandlord) reveal that
Subtenant has overpaid obligations for a preceding period, the amount of such overpayment shall be
credited against Subtenant’s subsequent installment of Operating Costs Reimbursements. In the
event that such results show that Subtenant has underpaid its obligations for a preceding period,
the amount of such underpayment shall be paid by Subtenant to Sublandlord with the next
succeeding installment of Operating Costs Reimbursements. If the Operating Costs Reimbursements
for any given year were improperly computed and are overstated by more than 5%, Sublandlord shall
reimburse Subtenant for the cost of its audit.
(f) If any installment of Sublease Monthly Base Rent, additional rent, or any other sum due
from Subtenant is not received by Sublandlord within five (5) days after the same is due, Subtenant
shall pay to Sublandlord an additional sum equal to Five percent (5%) of the amount overdue as a
late charge, but Sublandlord will waive the late charge for the first such failure occurring during
any calendar year during the Term. The parties agree that this late charge represents a fair and
reasonable estimate of the costs that Sublandlord will incur by reason of the late payment by
Subtenant. Acceptance of any late charge shall not constitute a waiver of Subtenant’s default with
respect to the overdue amount. Any amount not paid within ten (10) days after Subtenant’s receipt
of written notice that such amount is due shall bear interest from the date due until paid at the
lesser rate of (1) the prime rate of interest as published in the “Wall Street Journal,” plus two
percent (2%) or (2) the maximum rate allowed by law, in addition to the late payment charge.
Initials: Sublandlord Subtenant
9. Security Deposit. Subtenant shall deposit with Sublandlord upon the execution and delivery
of this Sublease the sum of Seven Thousand Seven Hundred Ninety Four Dollars ($7,794), which shall
be held by Sublandlord as a security deposit for Subtenant’s performance of all of the terms,
covenants and
conditions of this Sublease (the “Security Deposit”). If Subtenant defaults under any provision of
this Sublease, Sublandlord may (but shall not be required to) use, apply or retain all or any part
of the Security Deposit for the payment of any amount Sublandlord may spend by reason of
Subtenant’s default or to compensate Sublandlord for any loss or damage Sublandlord may suffer
because of Subtenant’s default. If any portion of the Security Deposit is so used or applied,
Subtenant shall, within ten (10) days after written demand, deposit cash with Sublandlord in an
amount sufficient to restore the Security Deposit to its original amount. Sublandlord is not
required to keep the Security Deposit separate from its general funds, and Subtenant is not
entitled to interest on the Security Deposit. If Subtenant performs each of its obligations under
this Sublease, the Security Deposit, or any balance thereof, shall be returned to Subtenant within
thirty (30) days after the later of the expiration of the Sublease term or the date Subtenant
vacates the Sublease Premises.
10. Use. Subtenant shall use and occupy the Sublease Premises for the purpose of general
office and any other related lawful purpose in conformity to the Master Lease.
11. Condition of Sublease Premises. Sublandlord warrants that the existing sidewalks,
driveways, parking lot, truck doors, mechanical (including HVAC), electrical, plumbing, roof and
roofing systems of the Building will be in good operating condition on the Commencement Date and
Sublandlord shall deliver the Sublease Premises to Subtenant on the Commencement Date with all of
the foregoing in good operating condition. Sublandlord warrants to Subtenant that upon Lease
Commencement, the Sublease Premises will be watertight, the carpets in the Sublease Premises will
be in good condition and repair, the walls of the Sublease Premises will be freshly painted or
touched up to look clean and uniform, the Sublease Premises professionally cleaned and all
operating systems servicing the Sublease Premises will be in good operating condition and repair,
and Sublandlord shall deliver the Sublease Premises to Subtenant on the Commencement Date in
accordance with the foregoing. Sublandlord shall provide Subtenant with use of Sublandlord’s phone
and security systems (including security codes); provided, however, that Subtenant shall pay the
carrier’s charge for all phone calls made by Subtenant based on the carrier’s invoice (which
Sublandlord shall supply to Subtenant) and Subtenant shall pay for the third party costs to extend
said security system to the Sublease Premises and Sublandlord shall cooperate with Subtenant in
connection therewith.
12. Master landlord’s Services. Master Landlord is obligated by the Master Lease to provide
Sublandlord with certain operating services, maintenance
and repairs (collectively, “Master landlord’s Services”). Sublandlord has no obligation to
furnish any of Master landlord’s Services to Subtenant and Sublandlord shall not be liable for any
disruption or failure of such services. Upon receipt by Sublandlord of a written complaint from
Subtenant, Sublandlord shall, to the extent of Sublandlord’s rights under the Master Lease, Master
landlord’s obligation to take all appropriate action to correct any defect, inadequacy or
insufficiency in the provision of Master landlord’s Services.
13. Maintenance and Repairs. Other than with respect to those matters which are the Master
landlord’s obligations under the Master Lease and subject to Sublandlord’s warranty in Section 11
above, Subtenant shall, at Subtenant’s expense, maintain the Sublease Premises, including, without
limitation, all improvements to the Sublease Premises, in the condition delivered to Subtenant,
excepting only reasonable wear and tear and casualty.
14. Hazardous Substances. Subtenant shall comply with this ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ 5.10 of
the Master Lease, and applicable law with respect to Hazardous Substances, with respect to
Subtenant’s use and occupancy of the Sublease Premises. Further:
(a) Neither Subtenant nor any of Subtenant’s officers, directors, agents, contractors,
employees or invitees shall use, generate, manufacture, produce, store, release, discharge or
dispose of on, under or about the Sublease Premises, or off-site the Sublease Premises affecting
the Building, or transport to or from the Sublease Premises, any Hazardous Substance except in
compliance with Environmental Laws. The term “Hazardous Substance” means any hazardous or toxic
substance, material or waste, pollutants or contaminants, as defined, listed or regulated now or in
the future by any federal, state or local law, ordinance, code, regulation, rule, order or decree
regulating, relating to or imposing liability or standards of conduct concerning, any environmental
conditions, health or industrial hygiene, including without limitation, (i) chlorinated solvents,
(ii) petroleum products or by-products, (iii) asbestos and (iv) polychlorinated biphenyls. The
term “Environmental Law” means any federal, state or local law, statute, ordinance, regulation or
order pertaining to health, industrial hygiene, environmental conditions or hazardous substances or
materials including those defined in this Paragraph as “Hazardous Substances.”
(b) Upon receipt of written notice of the same, Subtenant shall give prompt written notice to
Sublandlord of any proceeding or inquiry by any governmental authority with respect to the presence
of any Hazardous Substance on the Sublease Premises, any claims made or threatened by any third
party against
Subtenant or the Sublease Premises relating to any loss or injury resulting from any Hazardous
Substance, and the discovery of any occurrence or condition on the Sublease Premises that could
cause the Sublease Premises or any part thereof to be subject to any restrictions on occupancy or
use under any Environmental Law.
(c) Subtenant shall protect, indemnify, defend and hold harmless Sublandlord and Master
Landlord, and their respective directors, officers, employees, agents, affiliates, successors and
assigns from any loss, damage, cost, expense or liability (including reasonable attorneys’ fees and
costs) directly or indirectly arising out of or attributable to the use, generation, manufacture,
production, storage, release, discharge, disposal or presence of a Hazardous Substance on the
Sublease Premises or off-site of the Sublease Premises affecting the Property to the extent caused
by Subtenant or by any of its directors, officers, employees, agents, contractors or invitees,
including, without limitation, the costs of any required or necessary remediation, repairs, cleanup
or detoxification of the Sublease Premises and the Property and the preparation and implementation
of any closure, remedial or other required plans and not resulting from the acts or omissions of
Sublandlord or Master Landlord.
15. Default. Any of the following shall constitute a default by Subtenant:
(a) Failure by Subtenant to pay any rent, Security Deposit, or other sum which Subtenant is
required to pay hereunder within five (5) days after receipt by Subtenant of written demand for
payment from Sublandlord; or
(b) Failure by Subtenant to observe or perform any other provision of this Sublease for a
period of seven (7) days after receipt by Subtenant of written notice from Sublandlord specifying
such default, unless Subtenant has commenced and is implementing the cure in due course. The
seven-day grace period shall not apply to Subtenant’s breach of its obligations to maintain
insurance coverages hereunder or with respect to any specified default under the Master Lease that
provides a ▇▇▇▇▇▇ ▇▇▇▇▇ period (in which case the grace period so specified shall apply to such
default).
16. Remedies. In the event of a default by Subtenant, Sublandlord shall have all the remedies
provided pursuant to Section 8, Default and Remedies,of the Master Lease and by applicable law.
Sublandlord may resort to its remedies cumulatively or in the alternative.
17. Insurance. Subtenant shall obtain and keep in full force and effect with respect to the
Sublease Premises, at Subtenant’s sole cost and expense, during
the term of this Sublease all insurance required to be maintained by the “Lessee” under the
Master Lease to the extent applicable to the Sublease Premises, excluding the insurance described
in Section 6.2.1.(b) with respect to the initial Tenant Improvements and the improvements to be
constructed by Sublandlord pursuant to this Sublease; provided that Sublandlord and Master landlord
shall be named as an additional insured under Subtenant’s commercial general liability and property
policies.
Within five (5) days after the execution of this Sublease, and prior to the commencement of
the term of this Sublease, Subtenant shall deliver to Sublandlord and Master landlord copies of
policies or certificates complying with this Sublease, in form required by Section 6.2.2 of the
Master Lease. If Subtenant fails to obtain, maintain and/or provide evidence of insurance required
hereunder, Sublandlord may obtain the same and Subtenant shall, upon demand, reimburse Sublandlord
for the cost thereof. No such action by Sublandlord or reimbursement by Subtenant shall be a
waiver of default or other remedies. In no event shall the limits of such policies be considered
as limiting liability of Subtenant under this Sublease.
18. Waiver of Subrogation. Sublandlord and Subtenant each hereby release and relieve the
other, and waive their entire rights of recovery for loss or damage to property located within or
constituting a part or all of the Sublease Premises or the Building to the extent that the loss or
damage is covered by (a) the injured party’s insurance, or (b) the insurance which the injured
party is required to carry under Paragraph 14, whichever is greater. This waiver applies whether
or not the loss is due to the negligent acts or omissions of Sublandlord or Subtenant, or their
respective officers, directors, employees, agents, contractors, or invitees. Sublandlord and
Subtenant shall each have their respective property insurers endorse the applicable insurance
policies to reflect the foregoing waiver; provided, however, that the endorsement shall not be
required if the applicable policy of insurance permits the named insured to waive rights of
subrogation on a blanket basis, in which case the blanket waiver shall be acceptable.
Subtenant hereby releases Master landlord and Sublandlord, and Subtenant waives any claim
which Subtenant may at any time have against Master landlord or Sublandlord, for loss or damage to
property located within or constituting part or all of the Sublease Premises or the Property to the
extent that the loss or damage suffered by Subtenant is covered by: (a) the insurance of Master
landlord or Sublandlord, or (b) the insurance which Master landlord and Sublandlord are required to
carry under the Master Lease, whichever is greater. The foregoing release and waiver applies
whether or not the loss is due to the negligent acts or omissions of Master landlord or
Sublandlord, or their respective officers, directors,
employees, agents, contractors, or invitees. Subtenant shall have its property insurers
endorse the applicable insurance policies to reflect the foregoing waiver of claims; provided,
however, that the endorsement shall not be required if the applicable policy of insurance permits
the named insured to waive rights of subrogation on a blanket basis, in which case the blanket
waiver shall be acceptable.
Subtenant shall be entitled to request to Master landlord and Sublandlord that they provide a
similar waiver to Subtenant upon such terms and conditions as the Master landlord and Sublandlord
may require.
19. Liability of Sublandlord. Neither Master landlord nor Sublandlord shall have any personal
liability under this Sublease. Subtenant shall look solely to rents, issues and profits from the
Sublease Premises for the satisfaction of any judgment or decree against Master landlord or
Sublandlord based upon any default by Sublandlord under this Sublease, or based upon any default by
Master landlord under the Master Lease, and no other property or assets of Master landlord or
Sublandlord shall be subject to levy, execution or other enforcement procedures for satisfaction of
any such judgment or decree.
20. Indemnification. Subject to Sections 4, 11 and 18 above and Section 6.4 of the Master
Lease
Subtenant shall defend, indemnify and hold harmless Master landlord and Sublandlord from all
claims, costs, losses, liabilities, judgments and damages, including actual attorney’s fees, on
behalf of any party for any bodily injury or property damage to the extent caused by or arising in
connection with: (i) the use, or occupancy of the Sublease Premises by Subtenant; (ii) the
negligence or willful misconduct of Subtenant or its employees, contractors, agents or invitees; or
(iii) the breach by Subtenant in the performance of any of Subtenant’s obligations under this
Sublease or under the provisions of the Master Lease assumed hereunder; provided that Subtenant
shall not indemnify and hold harmless Master landlord or Sublandlord
for their gross negligence or
willful misconduct or breach of this Sublease or the Master Lease. The foregoing indemnification
shall survive the expiration or sooner termination of this Sublease.
21. Master Lease.
(a) This Sublease is subject and subordinate to the Master Lease and to all mortgages and
deeds of trust which may now or hereafter affect the Property, and to any and all renewals,
modifications, consolidations, replacements
and extensions thereof; provided, however that Sublandlord shall not modify the Master Lease
in any manner which would diminish Subtenant’s rights or increase Subtenant’s obligations under
this Sublease. If for any reason the Master Lease terminates before the expiration of the term of
this Sublease, this Sublease shall also terminate automatically.
(b) Except to the extent that this Sublease conflicts with the terms of the Master Lease and
subject to and without limitation on Sublandlord’s warranties and covenants contained in this
Sublease, Subtenant agrees, to the extent applicable to the Sublease Premises only, to assume,
perform, and be bound by all obligations and responsibilities of Sublandlord as “Lessee” under the
Master Lease as set forth in the Master Lease, except with respect to payment of rent, Security
Deposit, and any other sums provided for herein which shall be governed by this Sublease; and,
provided, that Sections 1: Basic Terms (except for Operating Cost Reimbursements),
2.1, 2.2, 2.3, 2.4, 2.5, 2.6, 3.2, 3.3, 3.5, 3.6, 9.1, and Exhibits
D, E, F, and Rider 2 of the Master Lease
shall not apply to this Sublease. Tenant shall not be responsible for failure of the Sublease
Premises to comply with Access Laws, Sublandlord shall perform all of its covenants under the
Master Lease and shall, for the benefit of Subtenant, perform all of the Master landlord’s
covenants under the Master Lease with respect to the Sublease Premises and/or enforce the Master
landlord’s warranties and representations under the Master Lease and Master landlord’s obligation
to perform all of its covenants under the Master Lease. To the extent that Subtenant desires to
exercise a right which is subject to Master landlord’s consent, Sublandlord shall submit to Master
landlord and prosecute such request for consent, at Subtenant’s cost.
Neither Sublandlord nor Subtenant shall neither do nor permit (to the extent affirmatively
obligated elsewhere in the Master lease or this Sublease to take action to prevent) anything to be
done that would cause the Master Lease to be terminated or forfeited by reason of any right of
termination or forfeiture reserved or vested in Master landlord under the Master Lease.
22. Parking. Subtenant shall have the right to 3.2 parking spaces in the parking facilities
at the Sublease Property for each 1,000 square feet in the Sublease Premises throughout Sublease
term at no cost to Subtenant.
23. Assignment/Subletting. As per Section 7 (Assignment and Subletting by the Tenant), of the
Master Lease, however Subtenant may sublease / assign all of the Sublease Premises.
24. Notices. Any notice regarding a breach of this Sublease or termination thereof shall be
in writing and be sent by certified mail or personally delivered to:
In the case of Sublandlord:
|
Guava Technologies | |
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. | ||
| ▇▇▇▇▇▇▇, ▇▇ | ||
| Attention: CFO | ||
With a copy to:
|
CFO | |
Or, in the case of Subtenant:
|
Anthera Pharmaceuticals, Inc. | |
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. | ||
| ▇▇▇▇▇▇▇, ▇▇ | ||
| Attention: ▇▇▇▇▇ ▇▇▇▇ |
Notice shall be deemed given when so delivered to Sublandlord or Subtenant, or three (3) days
after it is placed, properly addressed with postage prepaid, in a depository for United States
certified mail or when delivered in person or on the next business day after deposited with a
recognized overnight delivery service (with delivery for the next business day). Either party may
provide for a different address by notifying the other party of said change as provided for herein.
25. Surrender of Sublease Premises. Prior to expiration of this Sublease and subject to any
agreement with Master landlord to the contrary (provided such agreement releases Sublandlord and
Subtenant of their respective obligations pursuant to the Master Lease), Subtenant shall remove all
its trade fixtures or other personal property and (provided, however, that notwithstanding anything
to the contrary contained herein or in the Master Lease, Tenant shall have the right to remove its
trade fixtures and personal property), upon the expiration of the term of this Sublease or sooner
termination hereof, surrender the Sublease-Premises in the condition-received reasonable wear and
tear and casualty excepted, time being of the essence. If the
Sublease-Premises are not so
surrendered, then Subtenant shall be liable to Sublandlord for all costs incurred by Sublandlord as
a result thereof, including Sublandlord’s reasonable attorneys’ fees, plus interest thereon at the
interest rate provided for in the Master Lease.
26. Holding Over. Subtenant acknowledges that the expiration date of the Sublease is
September 30, 2010 and that Subtenant shall surrender the Sublease
Premises no later than that date in accordance with the terms of this Sublease. If Subtenant
holds over after expiration or termination of this Sublease without written consent of Sublandlord,
Subtenant shall indemnify and hold harmless Sublandlord from all claims, costs, expenses (including
reasonable attorneys’ fees) resulting from Subtenant’s delay in surrendering the Premises, and
shall pay Sublandlord holdover rent of 150% of the Sublease Monthly Base Rent.
27. Signage. Subtenant, at Subtenant’s sole cost and expense, may install signage upon
obtaining the prior written approval of Sublandlord and Master landlord.
28. Real Estate Broker. The parties acknowledge that CresaPartners is acting as the sole real
estate representative for the Subtenant. Sublandlord shall pay CresaPartners six percent (6%) of
the Base Rent in connection with this Sublease. Said fee shall be due and payable to CresaPartners
immediately upon Sublease commencement date by and between the Parties hereto.
29. Consent by Sublandlord. Whenever Sublandlord’s consent or approval is required under this
Sublease, such consent or approval may be withheld at Sublandlord’s sole discretion unless
otherwise indicated except to the extent that the Master Lease provides that the Master landlord
act reasonably under similar circumstances.
30. Successors and Assigns. Subject to the restriction contained herein against assignment of
this Sublease by Subtenant, the covenants and conditions contained in this Sublease shall bind the
heirs, successors, executors, administrators and assigns of the parties.
31. Attorneys’ Fees. In the event legal proceedings are initiated to enforce any provision of
this Sublease, to recover any rent due under this Sublease, for the breach of any covenant or
condition of this Sublease, or for the restitution of the Premises to Sublandlord and/or eviction
of Subtenant, the prevailing party shall be entitled to recover, as an element of its costs of suit
and not as damages, reasonable attorneys’ fees and costs to be fixed by the court.
32. Entire Agreement, Merger and Waiver. This Sublease supersedes and cancels all previous
negotiations, arrangements, offers, agreements or understandings, if any, between the parties.
This Sublease expresses and contains the entire agreement of the parties and there are no express
or implied representations, warranties or agreements between them, except as contained in this
Sublease. This Sublease may not be modified, amended or supplemented
except by a writing signed by Sublandlord, Subtenant, and approved by Master landlord. No
consent given or waiver made by either party hereunder of any breach by the other party of any
provision of this Sublease shall operate or be construed in any manner as a waiver of any
subsequent breach of the same or of any other provision.
33. Captions. The captions of this Sublease are provided for convenience only and shall not
be used in construing its meaning.
34. Severability. If any provision of this Sublease is found to be unenforceable, the
remainder of this Sublease shall not be affected thereby.
35. Authority. If Subtenant is a corporation or partnership, Subtenant represents and
warrants that—the individual executing this Sublease is duly authorized to execute and deliver this
Sublease on behalf of Subtenant and that this Sublease is binding upon Subtenant according to its
terms. If Subtenant is a corporation, the authorization of the individual executing and delivering
this Sublease is in accordance with a duly adopted resolution of Subtenant’s Board of Directors and
Subtenant’s Bylaws. Concurrently with execution of this Sublease, Subtenant shall deliver to
Sublandlord such evidence of authorization as Sublandlord may reasonably require.
36. Sublandlord and Subtenant Relationship Only. Nothing contained in this Sublease shall be
construed to create the relationship of principal and agent, partnership, joint venture or any
association between Sublandlord and Subtenant.
37. No Recording. This Sublease shall not be recorded.
38. Consent to Sublease by Master landlord. This Sublease is subject to the consent of Master
landlord. Accordingly, it shall be a condition precedent of this Sublease that Sublandlord has
obtained the prior written consent of Master landlord to this Sublease in form approved by Master
landlord.
39. Waiver of Trial by Jury. Sublandlord and Subtenant each agree to and they hereby do waive
trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way connected with this
Sublease, the relationship of Sublandlord and Subtenant, Subtenant’s use or occupancy of the
Premises and/or any claim of injury or damage, and any statutory remedy.
40. Counterparts. This Sublease and the Master landlord’s Consent to Sublease may be executed
in one or more counterparts.
41. No Default. Sublandlord represents to Subtenant that there have been and there are no
defaults under the Master Lease.
IN WITNESS WHEREOF, the parties have executed this Sublease on the dates shown opposite their
signatures below.
SUBLANDLORD:
Guava Technologies
a Delaware Corporation
Dated: August 25, 2008
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By: | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||
| Its | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| CEO | ||||||
Dated: , 2008
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By: | |||||
| SUBTENANT: | ||||||
| Anthera Pharmaceuticals, Inc. | ||||||
| a Delaware Corporation | ||||||
Dated: August 25, 2008
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By: | /s/ ▇▇▇▇▇ ▇▇▇▇ |
||||
| Its | ▇▇▇▇▇ ▇▇▇▇ | |||||
| CFO | ||||||
Dated: , 2008
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By: | |||||