EXHIBIT 10.64
ASSIGNMENT, ASSUMPTION AND CONSENT
SECTION I: ASSIGNMENT OF LEASE
For valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the undersigned, THE XXXXXXXXX CAPITAL GROUP, LLC, a California
limited liability company ("Assignor"), hereby assigns and transfers to CytRx
CORPORATION, a Delaware corporation ("Assignee"), all of Assignor's right,
title and interest in and under that certain Office Lease dated April 13, 2000
(the "Lease"), between XXXXXXX XXXXXX JOINT VENTURE, a California general
partnership, as Landlord, and Assignor, as Tenant, covering that certain space
more commonly known as Suite 650 (the "Premises"), located at 00000 Xxx Xxxxxxx
Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (the "Building"), as more particularly
described in the Lease.
This Assignment is made pursuant to the provisions of Article 11 of the
Lease and in connection therewith the undersigned:
a) Agrees the effectiveness of this Assignment and the Assumption of
Lease provided for herein are subject to the consent of Landlord, which
consent is predicated upon satisfaction of the conditions set forth in
Section 3 of this instrument.
b) Agrees that Assignor and Guarantor shall continue to remain
personally liable for the payment of all amounts payable by the Tenant
and the performance of all obligations of the Tenant pursuant to the
Lease, subject to the terms of Article 24 of the Lease. In the event
Assignee shall hold over, enter into a new lease or modification of the
existing lease, Assignor and Guarantor shall be released from Assignor's
and Guarantor's personal liability for any of the obligations of the
Tenant under the Lease as of such date.
c) Warrants that, as of the Effective Date specified below, there will
be no uncured default on the part of Assignor pursuant to the Lease, and
agrees to indemnify and defend Assignee against any claims arising out
of such a claimed default.
d) Acknowledges that Assignor has read the disclaimer set forth in
Section 4 and the general provisions set forth in Section 5 of this
instrument and executes this instrument with full knowledge and
acceptance of such sections, both of which are incorporated herein.
This Assignment shall be effective as of July 1, 2003 (the "Effective Date").
SECTION 2: ASSUMPTION OF LEASE
Assignee hereby accepts the foregoing assignment and assumes and agrees
to be bound by and perform all obligations of the Tenant pursuant to the Lease
arising on or after the Effective Date and to abide by all of the terms,
provisions, covenants and conditions of the Lease, including but not limited to
those providing for the payment of Rent, Additional Rent and other charges. The
undersigned acknowledges and agrees that:
a) It has inspected the Premises and the Building and has received
and read a copy of the Lease and is assuming the obligations of
Tenant pursuant to the Lease based upon its own independent
investigation, and not upon any statements or representations
made by or on behalf of the Landlord.
b) In connection with this transaction, no person has had any
authority to make any representations on behalf of Landlord
concerning the Premises and/or the Building and such
representations, if any, have not been relied upon by the
undersigned.
c) The effectiveness of this Assumption and the Assignment of Lease
provided for herein are subject to the consent of Landlord,
which consent is predicated upon satisfaction of the conditions
set forth in Section 3 of this instrument.
d) There may be no further assignment or transfer of the Lease or
subletting of the Premises, or any portion thereof.
e) There may be no change in the use of the Premises, except that
Landlord shall permit Assignee to use the Premises as an
administrative office for a pharmaceutical company, and there
shall be no remodeling of or alterations to the Premises
without, in each instance, the prior written consent of Landlord
and in conformance with the terms of the Lease.
f) Assignee's use of the Premises shall not conflict with other
exclusive use provisions in current leases ( or with exclusive
use provisions in future leases, which do not, when made,
conflict with Assignee's actual and specifically permitted use
of the Premises).
g) If Assignee defaults in payment or performance of any Tenant
obligation accruing after the Effective Date, Assignee shall
indemnify and hold Assignor harmless against any liability
therefor and shall promptly reimburse Assignor for all amounts
paid by Assignor to cure any such default, together with
interest thereon at the rate specified in the Lease from date of
expenditure to date of repayment.
h) Assignee has read the disclaimer set forth in Section 4 and the
general provisions set forth in Section 5 of this instrument and
executes this instrument with full knowledge and acceptance of
such sections, both of which are incorporated herein.
SECTION 3: CONSENT TO ASSIGNMENT
Contingent upon Assignor's and Assignee's acceptance of the requirements
contained hereinbelow, Landlord hereby consents to the foregoing Assignment in
accordance with the provisions of Article 11 of the Lease. Said consent is
subject to Assignor and Assignee acknowledging and agreeing that:
a) The foregoing consent is not a waiver of Landlord's right to
consent to or impose restrictions upon any future assignment or
subletting.
b) Nothing contained herein shall be deemed or construed to relieve
Assignor of any obligation of the Tenant pursuant to the Lease,
whether accrued through the Effective Date or thereafter.
c) Landlord now holds a security deposit pursuant to the Lease of
$20,508.46, which sum shall continue to be held by Landlord
after the Effective Date. Adjustments concerning such deposit
are the sole responsibility of Assignor and Assignee, and
Landlord need not be concerned therewith. At the expiration of
the term of the Lease, Landlord shall return said security
deposit in accordance with the terms of the Lease to Assignee.
d) The foregoing consent does not include a consent to the transfer
of any renewal, extension or expansion rights, or any other
special privileges or rights granted to Tenant pursuant to the
Lease and all such rights and privileges shall terminate upon
the Effective Date.
e) In the event of any defaults under the Lease, Landlord will send
to Assignor any notice of such default that Landlord sends to
Assignee.
This consent shall become effective only upon the execution of a copy of
this instrument by each other party hereto and delivery of such fully executed
copy to the undersigned.
SECTION 4: DISCLAIMER
Assignor and Assignee each acknowledge that the Lease, as currently
amended, provides for payment of Additional Rent (as that term is defined in the
Lease) periodically on an estimated basis with adjustment to actual amounts due
as specified in the Lease. Notwithstanding any estimate or allocation of such
amounts provided by Landlord to Assignor and Assignee to facilitate the transfer
provided for herein, Assignor and Assignee understand and acknowledge that (i)
any such estimate or allocation is only an estimate by Landlord and is not
intended as and shall not be construed as a limitation or ceiling upon the
actual amounts which may be due, (ii) as respects Landlord, Assignee shall be
solely responsible for any additional amounts of Additional Rent due to Landlord
by virtue of such adjustments and shall be solely entitled to any refunds or
credits resulting from such adjustments, and (iii) any proration of any such
amounts between Assignor and Assignee shall be strictly between them, and
Landlord need not be concerned therewith.
SECTION 5: GENERAL PROVISIONS
a) If any party hereto commences any action against any other party
hereto arising out of or in connection with this instrument, or
the Lease, the prevailing party or parties shall be entitled to
recover from the losing party or parties reasonable attorneys'
fees as determined by the court as well as costs of suit.
b) Any notice, demand, request, consent, approval or communication
that any party hereto desires or is required to give to any
other party or parties hereto shall be in writing and either
served personally or sent by prepaid, first class mail properly
addressed and deposited in the State of California to the
address appearing below the signatures of each party hereto.
Notice shall be deemed communicated three business days after
the time of mailing if mailed as provided in this paragraph.
c) Assignor and Assignee agree that Landlord has no liability for
any fees or commissions to any real estate broker or agent in
connection with the assignment and assumption of the Lease. All
such fees and commissions shall be the responsibility of
Assignor and Assignee.
d) This instrument shall be binding upon and inure to the benefit
of the parties hereto and their respective successors in
interest.
e) In the event of any conflict between the terms of this
instrument and the terms of the Lease, the terms of the Lease
shall control.
f) In connection with the within assignment, and to defray the
costs of processing such assignment, and Landlord's legal fees,
Assignor shall pay to Xxxxxxx, Xxxxxx and Company upon
Landlord's execution of this instrument a processing fee
of$750.00.
IN WITNESS WHEREOF, the parties hereto have affixed their signatures the date
hereinbelow.
ASSIGNOR: ASSIGNEE:
THE XXXXXXXXX CAPITAL GROUP, LLC, CytRx CORPORATION,
a California limited liability company a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
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Signer's Name: Xxxxxx Xxxxxxxxx Signer's Name: Xxxxxx Xxxxxxxxx
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[X] President [ ] Vice President or [ ] President [ ] Vice President or
[ ] Chief Executive Officer [X] Chief Executive Officer
(Check Title Above) (Check Title Above)
and and
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxxxxx
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Signer's Name: Xxxxxx Xxxxx Signer's Name: Xxxxx Xxxxxxxxx
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[ ] Secretary [ ] Treasurer or [X] Secretary [ ] Treasurer or
[ ] Chief Financial Officer [ ] Chief Financial Officer
[X]Managing Director (Check Title Above)
(Check Title Above)
Dated: 9/9/03 Dated: 9/9/03
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Notice Address: Notice Address:
00000 Xxx Xxxxxxx Xxxxxxxxx, Xxxxx 000 11726 Xxx Xxxxxxx Xxxxxxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx 00000 Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
LANDLORD: GUARANTOR:
XXXXXXX XXXXXX JOINT VENTURE
a California general partnership /s/ Xxxxxx X. Xxxxxxxxx
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By: XXXXXXX, XXXXXX AND COMPANY, Xxxxxx X. Xxxxxxxxx, an individual
its agent Dated: 9/9/03
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By: /s/ Xxxxxxx X. Means
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Xxxxxxx X. Means, Vice President
Dated: 9/15/03
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Notice Address:
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000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
