SECOND AMENDMENT TO OFFICE LEASE
EXHIBIT 10.29
SECOND
AMENDMENT TO OFFICE LEASE
This Second Amendment to Office Lease
(the “Second
Amendment”), dated June 19, 2008, is made by and between XXXXXXX XXXXXX
1993, LLC, a Delaware limited liability company (“Landlord”), with offices at
000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxxxx 00000, and CytRx
CORPORATION, a Delaware corporation (“Tenant”), with offices at
00000 Xxx Xxxxxxx Xxxxxxxxx, Xxxxxx 000 and 688, Xxx Xxxxxxx, Xxxxxxxxxx
00000.
WHEREAS,
X. XXXXXXX
XXXXXX JOINT VENTURE, a California general partnership (“DEJV”), pursuant to the
provisions of that certain Office Lease dated April 13, 2000 (the “Original Lease”), leased to
THE XXXXXXXXX CAPITAL GROUP, LLC, a California limited liability company (“Original Tenant”), and
Original Tenant leased from DEJV space in the property located at 00000 Xxx
Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx (the “Building”), commonly known as
Suite 650 (the “Original
Premises”);
B. Subsequently,
Original Tenant and Tenant and Landlord entered into that certain Assignment,
Assumption and Consent dated July 31, 2003 (the “Assignment”), whereby Tenant
assumed Original Tenant’s interest in the Original Lease;
C. On
or about August 25, 2005, Landlord acquired all of DEJV’s interest, right and
title in and to the real property and Building in which the Premises are
located, becoming successor-in-interest to DEJV and landlord under
the Lease;
D. Subsequently,
Landlord and Tenant entered into that certain First Amendment to Office Lease
dated October 14, 2005 (the “First Amendment”), wherein
Tenant expanded its occupancy within the Building to include Suite
688;
E. The
Term of the Lease expires June 30, 2008, which Term Landlord and Tenant wish to
hereby extend; and
F. Landlord
and Tenant, for their mutual benefit, wish to revise certain other covenants and
provisions of the Lease.
NOW, THEREFORE, in
consideration of the covenants and provisions contained herein, and other
good and valuable consideration, the sufficiency of which Landlord and Tenant
hereby acknowledge, Landlord and Tenant agree:
1. Confirmation of Defined
Terms. Unless modified herein, all terms previously defined
and capitalized in the Lease shall hold the same meaning for the purposes of
this Second Amendment. The Original Lease, as amended by the First
Amendment, and this Second Amendment shall be collectively referred to herein as
the “Lease”.
2. Extension of
Term. The Term of the Lease is hereby extended four (4) years
(the “Second Extended
Term”), from and including July 1, 2008 (the “Effective Date”), through and
including midnight on June 30, 2012 (the “Termination
Date”). It is expressly understood and agreed that in no event
shall Tenant have the right to further extend the Second Extended Term of the
Lease.
3. Revision in Fixed Monthly
Rent. Commencing on July 1, 2008, and continuing through June
30, 2009, the Fixed Monthly Rent payable by Tenant shall be $18,081.43 per
month.
Commencing on July 1, 2009, and
continuing through June 30, 2010, the Fixed Monthly Rent payable by Tenant shall
increase from $18,081.43 per month to $18,895.09 per month.
Commencing on July 1, 2010, and
continuing through June 30, 2011, the Fixed Monthly Rent payable by Tenant shall
increase from $18,895.09 per month to $19,745.37 per month.
Commencing on July 1, 2011, and
continuing throughout the remainder of the Extended Term, the Fixed Monthly Rent
payable by Tenant shall increase from $19,745.37 per month to $20,633.91 per
month.
4. Modification to Security
Deposit. Landlord acknowledges that it currently holds the sum
of $120,508.46 as a Security Deposit under the Lease, which amount Landlord
shall continue to hold throughout the Second Extended Term, subject to the
reductions specified in this Section 4 (and subject to the other terms of this
Section 4), unless otherwise applied pursuant to the provisions of the
Lease. Tenant hereby waives the provisions of Section 1950.7 of the
California Civil Code, and all other laws, statutes, ordinances or other
governmental rules, regulations or requirements now in force or which may
hereafter be enacted or promulgated, which (i) establish the time frame by which
Landlord must refund
a
security deposit under a lease, and/or (ii) provide that Landlord may claim from
the Security Deposit only those sums reasonably necessary to remedy defaults in
the payment of rent, to repair damage caused by Tenant or to clean the Premises,
it being agreed that Landlord may, in addition, claim those sums specified in
Lease Article 18, and/or those sums reasonably necessary to compensate Landlord
for any loss or damage caused by Tenant's breach of the Lease or the acts or
omission of Tenant or any Tenant Party. As used in the Lease a “Tenant Party” shall mean
Tenant, any employee of Tenant, or any agent, authorized representative, design
consultant or construction manager engaged by or under the control of
Tenant.
Section
4.1 Corresponding
Reduction to Security Deposit and Rent Offset.
(a) Subject
to Section 4.1(b) below and notwithstanding the foregoing provisions of Section
4 to the contrary, during the Extended Term, the Security Deposit for the
Premises shall be reduced and a portion applied to the Fixed Monthly Rent
payable by Tenant for the Premises as follows:
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i)
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on
July 1, 2008, the Security Deposit shall be proportionately reduced by an
amount equal to the Fixed Monthly Rent due for the month of July 2008,
which is $18,081.43 (“First Reduction”), and
the total sum of the First Reduction shall be applied to Fixed Monthly
Rent due, so that the balance of the Security Deposit then remaining shall
be $102,427.03; and
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ii)
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on
August 1, 2008, shall be proportionately reduced by an amount equal to the
Fixed Monthly Rent due which is $18,081.43 (“Second Reduction”), and
the total sum of the Second Reduction shall be applied to Fixed Monthly
Rent due, so that the balance of the Security Deposit then remaining shall
be $84,345.60; and
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iii)
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on
September 1, 2008, the Security Deposit shall be proportionately reduced
by an amount equal to the Fixed Monthly Rent due which is $18,081.43
(“Third
Reduction”), and the total sum of the Third Reduction shall be
applied to Fixed Monthly Rent due, so that the balance of the Security
Deposit then remaining shall be $66,264.17; and
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iv)
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on
October 1, 2008, the Security Deposit shall be proportionately reduced by
an amount equal to the Fixed Monthly Rent due which is $18,081.43 (“Fourth Reduction”), and
the total sum of the First Reduction shall be applied to Fixed Monthly
Rent due, so that the balance of the Security Deposit then remaining shall
be $48,182.74; and
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v)
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on
November 1, 2008, the Security Deposit shall be proportionately reduced by
an amount equal to the Fixed Monthly Rent due which is $18,081.43 (“Fifth Reduction”), and
the total sum of the Final Reduction shall be applied to Fixed Monthly
Rent due, so that the balance of the Security Deposit then remaining shall
be $30,101.31; and
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vi)
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on
December 1, 2008, the Security Deposit shall be proportionately reduced by
the amount of $9,467.40 (“Fifth Reduction”), and
the total sum of the Final Reduction shall be applied to Fixed Monthly
Rent due, which is $18,081. 43, so that the balance of the Security
Deposit then remaining shall be
$20,633.91
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(b) Tenant
agrees that the balance of the Security Deposit remaining after the Final
Reduction shall remain on deposit with Landlord for the duration of the Extended
Term, in accordance with the terms of the Lease. Notwithstanding the
above, there shall be no reduction of the Security Deposit at any time while
Tenant is in default of any of its obligations under the Lease and such default
continues after any applicable notice and cure period.
5. Revision to Base
Year. As of the Effective Date, the Base Year for Tenant’s
payment of increases in Operating Expenses for the Premises shall be calendar
year 2008.
6. Deleted
Provisions. The following provisions are hereby deleted and
have no further force or effect: Original Lease, Article 23 –Option
to Extend Term; and First Amendment, Section 11- Option to Extend
Term.
7. Acceptance of
Premises. Tenant acknowledges that (i) it has been in
possession of the Premises for over seven (7) years, and (ii) to the best of the
Tenant’s knowledge, as of the date hereof, it has no claim against Landlord in
connection with the Premises or the Lease. Tenant has made its own
inspection of and inquiries regarding the Premises, which is already
improved. Therefore, Tenant accepts the Premises in its “as-is”
condition. Tenant further acknowledges that Landlord has made no
currently effective representation or warranty, express or implied regarding the
condition, suitability or usability of the Premises or the Building for the
purposes intended by Tenant.
8. Warranty of
Authority. If Landlord or Tenant signs as a corporation, or a
limited liability company or a partnership, each of the persons executing this
Second Amendment on behalf of Landlord or Tenant hereby covenants and warrants
that the applicable entity executing herein below is a duly authorized and
existing entity that is qualified to do business in California; that the
person(s) signing on behalf of either Landlord or Tenant have full right and
authority to enter into this Second Amendment; and that
each and every person signing on behalf of either Landlord or Tenant are
authorized in writing to do so.
If either signatory hereto is a
corporation, the person(s) executing on behalf of said entity shall affix the
appropriate corporate seal to each area in the document where request therefor
is noted, and the other party shall be entitled to conclusively presume that by
doing so the entity for which said corporate seal has been affixed is attesting
to and ratifying this Second Amendment.
9. Broker
Representation. Landlord and Tenant represent to one another
that it has dealt with no broker in connection with this Second Amendment other
than Xxxxxxx Xxxxxx Management,
LLC. Landlord and Tenant shall hold one another harmless from
and against any and all liability, loss, damage, expense, claim, action, demand,
suit or obligation arising out of or relating to a breach by the indemnifying
party of such representation. Landlord agrees to pay all commissions
due to the brokers listed above created by Tenant’s execution of this Second
Amendment.
10. Confidentiality. Landlord
and Tenant agree that the covenants and provisions of this Second Amendment
shall be subject to that certain Nondisclosure Agreement between Landlord and
Tenant dated the date hereof.
11. Governing Law. The
provisions of this Second Amendment shall be governed by the laws of the State
of California.
12. Reaffirmation. Landlord
and Tenant acknowledge and agree that the Lease, as amended herein, constitutes
the entire agreement by and between Landlord and Tenant relating to the
Premises, and supersedes any and all other agreements written or oral between
the parties hereto. Furthermore, except as modified herein, all other
covenants and provisions of the Lease shall remain unmodified and in full force
and effect.
13. Submission of
Document. No expanded contractual or other rights shall exist
between Landlord and Tenant with respect to the Premises, as contemplated under
this Second Amendment, until both Landlord and Tenant have executed and
delivered this Second Amendment, whether or not any additional rental or
security deposits have been received by Landlord, and notwithstanding that
Landlord has delivered to Tenant an unexecuted copy of this Second
Amendment.
The
submission of this Second Amendment to Tenant shall be for examination purposes
only, and does not and shall not constitute a reservation of or an option for
the Tenant to lease the Premises, or otherwise create any interest by Tenant in
the Premises or any other portion of the Building other than the original
Premises currently occupied by Tenant. Execution of this Second
Amendment by Tenant and its return to Landlord shall not be binding upon
Landlord, notwithstanding any time interval, until Landlord has in fact executed
and delivered this Second Amendment to Tenant.
IN WITNESS WHEREOF, Landlord
and Tenant have duly executed this document, effective as of the later of the
date(s) written below.
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LANDLORD:
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TENANT:
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XXXXXXX
XXXXXX 1993, LLC,
a
Delaware limited liability company
By:Xxxxxxx
Xxxxxx Management, LLC,
a
Delaware limited liability company,
its
Agent
By:Xxxxxxx
Xxxxxx Management, Inc.,
a
Delaware corporation, its Manager
By:
/s/ XXXXXXX X.
MEANS
Xxxxxxx
X. Means,
Senior
Vice President
Dated: June 20,
2008
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CytRx
CORPORATION,
a
Delaware corporation
By: /s/ XXXXXX X.
XXXXXXXXX
Name: Xxxxxx
X. Xxxxxxxxx
Title:
President and Chief Executive Officer
Dated: June 20,
2008
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