CONSENT TO SUBLEASE
EXHIBIT
10.11
CONSENT TO SUBLEASE
THIS
CONSENT TO SUBLEASE (“Consent”) is made as of this
12th day
of September, 2008, by
and among NewTower Trust Company Multi-Employer Property Trust, a collective investment fund
operating under 12 C.F.R. Section 9.18 (“Landlord”), Guava Technologies, Inc., a Delaware
corporation (“Tenant”) and Anthera Pharmaceuticals, a Delaware corporation
(“Subtenant”).
BACKGROUND
A. Tenant is leasing that certain real property (the “Premises”) from Landlord
pursuant to the terms of that certain lease dated as of
October 30, 2006, (“Main Lease”),
under which Landlord leased to Tenant approximately 42,855 rentable square feet of space located at
Mount Eden Business Park, Building A, 00000 Xxxxxxxxxx Xxxxxxx, Xxxxxxx, XX. The Premises are more
specifically described on Exhibit A attached to the Main Lease.
B. Tenant desires and has agreed to sublease to Subtenant a portion of the Premises consisting
of 7,794 rentable square feet as shown and marked on the floor plan attached to the Sublease (the
“Sublet Space”). Subtenant desires and has agreed to sublease the Sublet Space under a
Sublease dated as of August 1, 2008 (the “Sublease”) from and after August 1, 2008 (the
“Effective Date”).
C. Pursuant to the terms of the Master Lease, Tenant now seeks Landlord’s consent to such
subleatting.
AGREEMENT
1. Landlord hereby consents to the subletting of the Sublet Space by Tenant to Subtenant,
pursuant to the Sublease, a copy of which is attached hereto. Landlord’s consent is subject to and
upon the following terms and conditions, to each of which Tenant and Subtenant expressly agree:
2. Nothing contained in this Consent shall:
(a) operate as a consent to or approval or ratification by Landlord of any of the provisions
of the Sublease or as a representation or warranty by Landlord, and Landlord shall not be bound or
estopped in any way by the provisions of the Sublease;
(b) be construed to modify, waive or affect (i) any of the provisions, covenants or conditions
in the Main Lease, (ii) any of Tenant’s obligations under the Main Lease, or (iii) any rights or
remedies of Landlord under the Main Lease or otherwise or to enlarge or increase Landlord’s
obligations or Tenant’s rights under the Main Lease or otherwise. Without limiting the generality
of the foregoing, nothing contained in this Consent shall be construed to modify, waive or affect
Landlord’s rights under subparagraph 7.3 of the Main Lease to collect additional Base Rent from
Tenant based on rent payable to Tenant from Subtenant, and
1
Landlord expressly reserves its rights to collect such sums if, as and when they become due
and payable; or
(c) be construed to waive any present or future breach or default on the part of Tenant under
the Main Lease. In case of any conflict between the provisions of this Consent and the provisions
of the Sublease, the provisions of this Consent shall prevail unaffected by the Sublease.
3. This Consent is not assignable.
4. The Sublease shall be subject and subordinate at all times to the Main Lease and all of its
provisions, covenants and conditions. In case of any conflict between the provisions of the Main
Lease and the provisions of the Sublease, the provisions of the Main Lease shall prevail unaffected
by the Sublease.
5. Neither the Sublease nor this consent thereto shall release or discharge the Tenant from
any liability under the Main Lease and Tenant shall remain liable and responsible for the full
performance and observance of all of the provisions, covenants and conditions set forth in the Main
Lease on the part of Tenant to be performed and observed. Any breach or violation of any provision
of the Main Lease by Subtenant shall be deemed to be and shall constitute a default by Tenant in
fulfilling such provision.
6. This consent by Landlord shall not be construed as a consent by Landlord to any further
subletting either by Tenant or Subtenant or to any expansion or modification of the Sublet Space or
to any modification or amendment to the Sublease. The Sublease may not be assigned, modified,
amended, renewed or extended nor shall the Premises or Sublet Space,
or any part thereof, be further
sublet without the prior written consent of the Landlord thereto in each instance.
7. Upon expiration or any earlier termination of the term of the Main Lease, or in any case of
the surrender of the Main Lease by Tenant to Landlord, except as provided in the next succeeding
sentence, the Sublease and its term shall expire and come to an end as of the effective date of
such expiration, termination, or surrender and Subtenant shall vacate the Sublet Space on or before
such date, If the Main Lease shall expire or terminate during the term of the Sublease for any
reason other than condemnation or destruction by fire or other cause, or if Tenant shall surrender
the Main Lease to Landlord during the term of the Sublease, Landlord, in its sole discretion, upon
written notice given to Tenant and Subtenant not more than thirty (30) days after the effective
date of such expiration, termination or surrender, without any additional or further agreement of
any kind on the part of Subtenant, may elect to continue the Sublease with the same force and
effect as if Landlord as lessor and Subtenant as lessee had entered into a lease as of such
effective date for a term equal to the then unexpired term of the Sublease and containing the same
terms and conditions as those contained in the Sublease, Subtenant shall attorn to Landlord and
Landlord, and Subtenant shall have the same rights, obligations and remedies thereunder as were had
by Tenant and Subtenant thereunder prior to such effective date, respectively, except that in no
event shall Landlord be
2
(a) liable for any act or omission by Tenant, or
(b) subject to any offsets or defenses which Subtenant had or might have against Tenant,
(c) bound by any rent or additional rent or other payment paid by Subtenant to Tenant in
advance or
(d) bound by any amendment to the Sublease not consented to by Landlord.
Upon expiration of the Sublease pursuant to the provisions of the first sentence of this paragraph
7, in the event of the failure of Subtenant to vacate the Sublet Space as therein provided,
Landlord shall be entitled to all the rights and remedies available to a landlord against a tenant
holding over the expiration of a term.
8. Both Tenant and Subtenant shall be and continue to be liable for all bills rendered by
Landlord for charges incurred by or imposed upon Subtenant for services rendered and materials
supplied to the Sublet Space. If a separate submeter shall be installed to measure electric current
furnished. to the Sublet Space, then payment for the current so furnished shall be made by
Subtenant directly to Landlord as and when billed and furnishing of such current shall be in
accordance with and subject to all of the applicable terms, covenants and conditions of the Main
Lease.
9. Any notice or communication with any party hereto may desire or be required to give to any
other party under or with respect to this Consent shall be given, in the case of Landlord at its
address set forth below, and in the case of Tenant or Subtenant at the building in which the
Premises are located, or in any case at such other address as such other party may have designated
by notice given in accordance with the provisions of this paragraph. All such notices or
communications shall be transmitted by personal delivery, reputable express or courier service, or
United States Postal Service, postage prepaid. All such communications shall be deemed delivered
and effective on the earlier of (a) the date received or refused for delivery, or (b) five (5)
calendar days after having been deposited in the United States Postal Service, postage prepaid.
Those communications which contain a notice of breach or default, a notice of an event or
occurrence that with the passage of time or the giving of notice, or both, would cause a breach or
default to arise, or a demand for performance shall be transmitted by (i) United States Postal
Service, certified mail, return receipt requested; or (ii) personal delivery, provided that such
personal delivery includes a receipt from a representative of the addressee indicating that
delivery has occurred; or (iii) reputable express or courier service.
10. In the event that Landlord places the enforcement of the Main Lease or Sublease, or any
part thereof, or the collection of any rent or other sums due, or to become due thereunder, or
recovery of possession of the Premises in the hands of an attorney, Tenant shall pay to Landlord,
upon demand, Landlord’s reasonable attorneys’ fees and court costs. In any action which Landlord
brings to enforce its rights under the Main Lease or Sublease, should Landlord prevail, Tenant
shall pay all costs incurred by Landlord, including reasonable attorneys’ fees, to
3
be fixed by the court, and said costs and attorneys’ fees shall be a part of the judgment in said
action.
11. Tenant and Subtenant expressly acknowledge and agree that, notwithstanding any language to
the contrary in the Sublease, Tenant shall not collect from Subtenant, and Subtenant shall not pay
to Tenant, any rent under the Sublease more than one (1) month in advance of its due date.
12. In accordance with subparagraph 7.1.3 of the Main Lease, Tenant agrees to pay Landlord of
$1,000.00 as an administrative fee plus Landlord’s reasonable attorneys’ fees and expenses incurred
in connection with this Consent.
13. This Consent shall be construed in accordance with the laws of the State of California,
contains the entire agreement of the parties hereto respect to the subject matter hereof and may
not be changed or terminated orally or by course of conduct.
DATED
this 12th day of September, 2008
Designated Address for Landlord:
|
LANDLORD: | |
c/x Xxxxxxx Associates Real Estate
|
NEWTOWER TRUST COMPANY | |
Counsel, LP
|
MULTI-EMPLOYER | |
Attn: Executive Vice President — Asset
|
PROPERTY TRUST, a collective | |
Management
|
investment fund operating under 12 | |
0000 Xxxxxx Xxxxxx, Xxxxx 0000
|
C.F.R. Section 9.18 | |
Xxxxxxx, XX 00000 |
||
Facsimile: 000-000-0000 |
| By: | Xxxxxxx Associates Real Estate | |||||||
| Counsel, LP, Authorized | ||||||||
| Signatory | ||||||||
and to Landlord’s Trustee: |
||||||||
| By: | Xxxxxxx Associates Real | |||||||
| Estate Counsel GP, LLC, | ||||||||
| its General Partner | ||||||||
NewTower Trust Company Multi- |
||||||||
Employer
|
By: | /s/ Xxxx Xxxxxxx | ||||||
Property Trust
|
Name: | Xxxx Xxxxxxx | ||||||
c/o NewTower Trust Company
|
Its: | |||||||
Attn: President/MEPT or Xxxxxxx X. |
||||||||
Xxxxxxxx |
||||||||
0 Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 0000 |
||||||||
Xxxxxxxx, XX 00000 |
||||||||
Facsimile: 000-000-0000 |
||||||||
4
| Tenant’s Designated Address: | TENANT: | |||
Guava Technologies, Inc. |
||||
| Attn: Xxxxxx Xxxxxxx | GUAVA TECHNOLOGIES, INC., a | |||
| 00000 Xxxxxxxxxx Xxxx. | Xxxxxxxx xxxxxxxxxxx | |||
Xxxxxxx, XX 00000 |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Its: | CFO | |||
| Date: | August 25, 2008 | |||
| Subtenant’s Designated Address: | SUBTENANT: | |||
| Anthera Pharmaceuticals, Inc. | ANTHERA PHARMACEUTICALS, a | |||
| Attn: Xxxxx Xxxx | Delaware corporation | |||
00000 Xxxxxxxxxx Xxxx. |
||||
Xxxxxxx, XX
|
By: | /s/ Xxxxx Xxxx | ||
| Name: | Xxxxx Xxxx | |||
| Its: | VP and CFO | |||
| Date: | August 25, 2008 | |||
5
