SECOND AMENDMENT TO LEASE
Exhibit 10.52
SECOND AMENDMENT TO LEASE
This
SECOND AMENDMENT TO LEASE (this "Second Amendment") is made and entered
into as of June 30, 2018, by and between 10900 WILSHIRE, L.L.C., a
Delaware limited liability company ("Landlord"), and CHROMADEX, INC., a
California corporation ("Tenant").
R E
C I T A L S:
A. Landlord
and Tenant are parties to that certain Lease, dated July 6, 2017
(the "Office Lease"), as
amended by that certain First Amendment to Lease, dated February 7,
2018 (the "First
Amendment"), whereby Landlord leases to Tenant and Tenant
leases from Landlord that certain premises (the "Premises"), commonly known as Xxxxx 000
xxx Xxxxx 000, and located on the sixth (6th) floor of that certain
office building located at 00000 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx (the "Building"),
as more particularly set forth in the Lease. The Office Lease and
First Amendment shall collectively be referred to herein as the
"Lease".
B. Landlord
and Tenant desire to amend the Lease on the terms and conditions
contained herein.
A G
R E E M E N T:
NOW,
THEREFORE, in consideration of the foregoing recitals and the
mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as
follows.
1. Capitalized
Terms. Each capitalized term when used herein shall have the
same respective meaning as is given such term in the Lease, unless
expressly provided otherwise in this Second Amendment.
2. Temporary Storage
Space.
2.1 In General.
Subject to the terms of this Section 2, commencing as of
July 1, 2018, and continuing thereafter on a month-to-month basis
(the "Storage Space Term"),
Landlord shall rent to Tenant and Tenant shall rent from Landlord,
that certain storage space consisting of 96 square feet, commonly
known as PD-9, and located in the Building Parking Facility (the
"Storage Space"), as
delineated on Exhibit
A attached hereto. Notwithstanding any provision to the
contrary contained in this Section 2, Landlord and Tenant
shall each have the right to terminate Tenant's lease of the
Storage Space upon not less than thirty (30) days prior written
notice to the other party.
2.2 Rent. The
Storage Space shall be leased by Tenant at a monthly rental rate
equal to $228.48 (i.e.,
$2.38 per rentable square feet of the Storage Space) (the
"Storage Space Rent"). The
Storage Space Rent shall be due on a monthly basis concurrent with
Tenant's payment of Fixed Rent due with respect to the Premises,
and shall constitute Rent. Concurrently with Tenant's execution and
delivery of this Second Amendment, Tenant shall deliver to Landlord
a check in the amount of $228.48, as payment of the Storage Space
Rent due for the first month of the Storage Space
Term.
2.3 Condition of
Storage Space. Tenant acknowledges that (i) Tenant is
fully aware of the condition of the Storage Space and shall accept
the Storage Space in its presently existing "as-is" condition, and
(ii) Landlord shall have no obligation to provide or pay for any
improvement work or services related to the improvement of the
Storage Space. Tenant also acknowledges that neither Landlord nor
any agent of Landlord has made any representation or warranty
regarding the condition of the Storage Space or with respect to the
suitability of the same for the conduct of Tenant's
business.
-1-
2.4 Other Terms.
The Storage Space shall be used only for storage of boxes, files,
furniture, office equipment and other similar items associated with
commercial office space and for no other purpose whatsoever without
the prior written consent of Landlord, which consent may be
withheld in Landlord's sole discretion. Tenant shall not make any
alterations, improvements or modifications to the Storage Space and
shall be fully responsible for repairing any damage to the Storage
Space resulting from or relating to Tenant's use thereof. Tenant
shall comply with such rules and regulations as may be promulgated
by Landlord from time to time pertaining to the use of the Storage
Space. Tenant acknowledges that Landlord shall have no obligation
to provide security or any other services described in Article 10 of the Lease, other
than lighting during Ordinary Business Hours, with respect to the
Storage Space. Tenant shall indemnify, defend and hold harmless
Landlord and the Parties (as defined in Section 3, below) from and
against any and all loss, liability, claims, expenses, damages or
costs (including, without limitation, court costs and reasonable
attorneys' fees) arising out of or in connection with Tenant's use
of the Storage Space. Tenant's insurance obligations under the
Lease shall also pertain to Tenant's use of the Storage
Space.
2.5 Required
Disclosures Related to Accessibility Standards. For purposes
of Section 1938(a) of the California Civil Code, Landlord hereby
discloses to Tenant, and Tenant hereby acknowledges, that the
Storage Space have not undergone inspection by a person certified
as a Certified Access Specialist (CASp). In addition, the following
notice is hereby provided pursuant to Section 1938(e) of the
California Civil Code: "A Certified Access Specialist (CASp) can
inspect the subject premises and determine whether the subject
premises comply with all of the applicable construction-related
accessibility standards under state law. Although state law does
not require a CASp inspection of the subject premises, the
commercial property owner or lessor may not prohibit the lessee or
tenant from obtaining a CASp inspection of the subject premises for
the occupancy or potential occupancy of the lessee or tenant, if
requested by the lessee or tenant. The parties shall mutually agree
on the arrangements for the time and manner of the CASp inspection,
the payment of the fee for the CASp inspection, and the cost of
making any repairs necessary to correct violations of
construction-related accessibility standards within the premises."
In furtherance of and in connection with such notice: (i) Tenant,
having read such notice and understanding Tenant's right to request
and obtain a CASp inspection and with advice of counsel, hereby
elects not to obtain such CASp inspection and forever waives its
rights to obtain a CASp inspection with respect to the Storage
Space, the Building and/or the Real Property to the extent
permitted by applicable Requirements now or hereafter in effect;
and (ii) if the waiver set forth in clause (i) hereinabove is not
enforceable pursuant to applicable Requirements now or hereafter in
effect, then Landlord and Tenant hereby agree as follows (which
constitute the mutual agreement of the parties as to the matters
described in the last sentence of the foregoing notice): (A) Tenant
shall have the one-time right to request for and obtain a CASp
inspection, which request must be made, if at all, in a written
notice delivered by Tenant to Landlord within thirty (30) days
after the commencement of the Storage Space Term; (B) any CASp
inspection timely requested by Tenant shall be conducted (1)
between the hours of 9:00 a.m. and 5:00 p.m. on any Business Day,
(2) only after ten (10) days' prior written notice to Landlord of
the date of such CASp inspection, (3) in a professional manner by a
CASp designated by Landlord and without any testing that would
damage the Storage Space, the Building or the Real Property in any
way, (4) in accordance with all of the provisions of the Lease, as
amended, applicable to Tenant contracts for construction, and (5)
at Tenant's sole cost and expense, including, without limitation,
Tenant's payment of the fee for such CASp inspection, the fee for
any reports and/or certificates prepared by the CASp in connection
with such CASp inspection (collectively, the "CASp Reports") and all other costs and
expenses in connection therewith; (C) Landlord shall be an express
third party beneficiary of Tenant's contract with the CASp, and any
CASp Reports shall be addressed to both Landlord and Tenant; (D)
Tenant shall deliver a copy of any CASp Reports to Landlord within
two (2) Business Days after Tenant's receipt thereof; (E) any
information generated by the CASp inspection and/or contained in
the CASp Reports shall not be disclosed by Tenant to anyone other
than (I) contractors, subcontractors and/or consultants of Tenant,
in each instance who have a need to know such information and who
agree in writing not to further disclose such information, or (II)
any governmental entity, agency or other person, in each instance
to whom disclosure is required by applicable Requirements or by
regulatory or judicial process; (F) Tenant, at its sole cost and
expense, shall be responsible for making any improvements,
alterations, modifications and/or repairs to or within the Storage
Space to correct violations of construction-related accessibility
standards, including, without limitation, any violations disclosed
by such CASp inspection; and (G) if such CASp inspection identifies
any improvements, alterations, modifications and/or repairs
necessary to correct violations of construction-related
accessibility standards relating to those items of the Building
and/or the Real Property located outside the Storage Space, then
Tenant shall be responsible for performing any such improvements,
alterations, modifications and/or repairs as and to the extent
required by applicable Requirements to the extent provided Section
8.1(a) of the Lease and Landlord shall be responsible for
performing any such improvements, alterations, modifications and/or
repairs as and to the extent required by applicable Requirements to
the extent provided in Section 8.1(c) of the Lease.
-2-
3. Limitation on
Liability. The liability of Landlord for Landlord’s
obligations under the Lease, as amended, and any other documents
executed by Landlord and Tenant in connection with the Lease, as
amended (collectively, the "Lease
Documents") shall be limited to Landlord’s interest in
the Real Property (including any rent, insurance, sales and
condemnation proceeds actually received by Landlord and not subject
to any superior rights of any third parties) and Tenant shall not
look to any other property or assets of Landlord or the property or
assets of any direct or indirect partner, member, manager,
shareholder, director, officer, principal, employee or agent of
Landlord (collectively, the “Parties”) in seeking either to
enforce Landlord’s obligations under the Lease Documents or
to satisfy a judgment for Landlord’s failure to perform such
obligations; and none of the Parties shall be personally liable for
the performance of Landlord’s obligations under the Lease
Documents. In no event shall Landlord be liable for, and Tenant, on
behalf of itself and all other subtenants or occupants of the
Premises and their respective agents, contractors, subcontractors,
employees, invitees or licensees hereby waives any claim for, any
indirect, consequential or punitive damages, including loss of
profits or business opportunity, arising under or in connection
with the Lease Documents.
4. Tax Status of
Beneficial Owner. Tenant recognizes and acknowledges that
Landlord and/or certain beneficial owners of Landlord may from time
to time qualify as real estate investment trusts pursuant to
Sections 856, et seq. of the Internal Revenue Code and that
avoiding (a) the loss of such status, (b) the receipt of any
income derived under any provision of the Lease, as amended, that
does not constitute “rents from real property” (in the
case of real estate investment trusts), and (c) the imposition of
income, penalty or similar taxes (each an “Adverse Event”) is of material
concern to Landlord and such beneficial owners. In the event that
the Lease, as amended, or any document contemplated hereby could,
in the opinion of counsel to Landlord, result in or cause an
Adverse Event, Tenant agrees to cooperate with Landlord in
negotiating an amendment or modification thereof for the limited
purpose of addressing such Adverse Event and shall at the request
of Landlord execute and deliver such documents reasonably required
to effect such amendment or modification, provided that Landlord
shall, after the receipt of an invoice therefor, reimburse Tenant
for its reasonable and actual out-of-pocket attorneys fees incurred
in connection with Tenant's review of such amendment or
modification. Any amendment or modification pursuant to this
Section 4 shall be
structured so that the economic results to Landlord and Tenant
shall be substantially similar to those set forth in the Lease, as
amended, without regard to such amendment or modification. Without
limiting any of Landlord's other rights under this Section 4, Landlord may
waive the receipt of any amount payable to Landlord hereunder and
such waiver shall constitute an amendment or modification of the
Lease, as amended, with respect to such payment. Tenant expressly
covenants and agrees not to enter into any sublease or assignment
which provides for rental or other payment for such use, occupancy,
or utilization based in whole or in part on the net income or
profits derived by any person from the property leased, used,
occupied, or utilized (other than an amount based on a fixed
percentage or percentages of receipts or sales), and that any such
purported sublease or assignment shall be absolutely void and
ineffective as a conveyance of any right or interest in the
possession, use, occupancy, or utilization of any part of the
Premises.
5. Authority.
If Tenant is a corporation, trust, limited liability company or
partnership, each individual executing this Second Amendment on
behalf of Tenant hereby represents and warrants that Tenant is a
duly formed and existing entity qualified to do business in
California and that Tenant has full right and authority to execute
and deliver this Second Amendment and that each person signing on
behalf of Tenant is authorized to do so.
6. No
Brokers. Landlord and Tenant
hereby warrant to each other that they have had no dealings with
any real estate broker or agent in connection with the negotiation
of this Second Amendment other than Tishman Speyer Properties, L.P.
(the "Broker"), and that they know of no other real estate
broker or agent who is entitled to a commission in connection with
this Second Amendment. Each party agrees to indemnify and defend
the other party against and hold the other party harmless from any
and all claims, demands, losses, liabilities, lawsuits, judgments,
costs and expenses (including, without limitation, reasonable
attorneys' fees) with respect to any leasing commission or
equivalent compensation alleged to be owing on account of the
indemnifying party's dealings with any real estate broker or agent
other than the Broker. The terms of this Section 6
shall survive the expiration or
earlier termination of the Lease, as amended.
7. Conflict;
No Further Modification.
In the event of any conflict between the terms and conditions of
the Lease and the terms and conditions of this Second Amendment,
the terms and conditions of this Second Amendment shall prevail.
Except as specifically set forth in this Second Amendment, all of
the terms and conditions of the Lease shall remain unmodified and
in full force and effect.
[SIGNATURES FOLLOW ON NEXT PAGE]
|
|
|
|
-3-
IN
WITNESS WHEREOF, this Second
Amendment has been executed as of the day and year first
above written.
LANDLORD:
10900
WILSHIRE, L.L.C.,
a
Delaware limited liability company
By:
/s/ Xxxx X.
Xxxxxxx
Its:
Senior Managing
Director
TENANT:
CHROMADEX,
INC.,
a
California corporation
By:
/s/ Xxxxx
Xxxx
Its:
Chief Financial
Officer
By:
__________________________________
Its:
________________________________
-4-
EXHIBIT A
OUTLINE OF STORAGE SPACE
The
floor plan which follows is intended solely to identify the general
location of the Storage Space, and should not be used for any other
purpose. All areas, dimensions and locations are approximate, and
any physical conditions indicated may not exist as
shown.
-5-
