1
EXHIBIT 10.46
FIRST AMENDMENT TO LEASE AGREEMENT
This First Amendment to Lease Agreement (the "Amendment") is made and entered
into as of December 1, 2000, by and between LINCOLN-RECP EMPIRE OPCO, LLC, a
California limited liability company ("Landlord") and AVIGEN, INC., a Delaware
corporation ("Tenant"), with reference to the following facts.
RECITALS
A. Landlord and Tenant have entered into that certain Lease Agreement dated
as of November 2, 2000 (the "Lease") for the leasing of certain premises
consisting of approximately 67,482 rentable square feet located at 0000
Xxxxxx Xxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxx (the "Premises") as such
Premises are more fully described in the Lease, for a term commencing on
December 1, 2000, and expiring on November 30, 2010.
B. Pursuant to Article 2 of the Lease, the Premises on the second floor of
the Building comprising approximately 32,945 rentable square feet (the
"Remaining Premises") was anticipated to be delivered to Tenant on or
about October 1, 2001 (the "RP Commencement Date").
C. Tenant now wishes to, effective as of December 1, 2000, occupy
approximately 22,945 rentable square feet of the Remaining Premises (the
"A Remaining Premises"), rather than waiting until the RP Commencement
Date to occupy any of the Remaining Premises, and wishes to occupy the
entire Remaining Premises as of March 1, 2001, rather than the RP
Commencement Date, and Landlord is agreeable to the same.
D. Phoenix American, Inc., a California corporation, successor in interest
to Resource/Phoenix, Inc. ("Phoenix") currently occupies the balance of
the Remaining Premises (the "B Remaining Premises") comprising
approximately 10,000 rentable square feet pursuant to a lease from
Landlord.
E. Landlord and Tenant now wish to amend the Lease upon and subject to each
of the terms, conditions and provisions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Landlord and Tenant agree as follows:
1. RECITALS: Landlord and Tenant agree that the above recitals are true
and correct and are hereby incorporated herein as though set forth in full.
2. MODIFICATIONS TO LEASE: Effective as of December 1, 2000 (the
"Effective Date"), the Lease is hereby modified as follows:
2.1 PREMISES. ARTICLE 2 - LEASE TERM of the Lease is hereby
amended such that the fifth (5th) and sixth (6th) sentences thereof
shall read as follows:
"Landlord has delivered, and Tenant acknowledges having
possession of, approximately 34,537 rentable square feet of the
Premises on the ground floor of the Building (the "Initial
Premises") to Tenant on or about the Lease Commencement Date; and
Landlord anticipates delivering the balance of the Premises on
the second floor of the Building comprising approximately 32,945
rentable square feet (the "Remaining Premises"), approximately
22,945 rentable square feet (the "A Remaining Premises"), as
shown on Exhibit A to this Amendment, is anticipated to be
delivered to Tenant on or about December 1, 2000 (the "RPA
Commencement Date"); and approximately 10,000 rentable square
feet (the "B Remaining Premises"), as shown on Exhibit A to this
Amendment, is anticipated to be delivered to Tenant on or about
March 1, 2001 (the "RPB Commencement Date"). If Landlord, for any
reason, cannot deliver possession of the A Remaining Premises to
Tenant on the RPA Commencement Date (in the condition that exists
on the day after the Existing Tenant vacates the A Remaining
Premises), or cannot deliver possession of the B Remaining
Premises to Tenant on the RPB Commencement Date (in the condition
that exists on the day after the Existing Tenant vacates the B
Remaining Premises), in either case without any improvements,
alterations, repairs, refurbishment or other modifications being
made thereto (except as may be necessary to satisfy the
requirements of Section 1.2 above), Landlord shall not be subject
to any liability nor shall the validity of this Lease be
affected; provided that the RPA Commencement Date and/or the RPB
Commencement Date, as appropriate, shall be extended
commensurately by the period of time Landlord is delayed in so
delivering possession of the A Remaining Premises and/or the B
Remaining Premises to Tenant without any improvements,
alterations, repairs, refurbishment or other modifications being
made thereto. Tenant's rights to use the A Remaining Premises and
the B Remaining Premises shall be subject and subordinate to the
rights of Phoenix; and no use by Tenant may unreasonably
interfere with the rights of Phoenix to use and occupancy of
Phoenix's premises."
Throughout the Lease, references to the "RP Commencement Date"
shall be deemed to be references to the "RPA Commencement Date" and/or
the "RPB Commencement Date", as appropriate.
2.2 RENT.
ARTICLE 3 - BASE RENT of the Lease is hereby amended as
follows:
Base Rent for the A Remaining Premises is waived by the
Landlord for the period from the RPA Commencement Date through
the RPB Commencement Date. From and after the RPB Commencement
Date, Tenant shall pay to Landlord Base Rent for both the RPA
Remaining Premises and the RPB Remaining Premises at the monthly
rate of $1.52 per rentable square
E-2
2
foot, or Fifty Thousand Seventy-six Dollars and Forty Cents
($50,076.40), through May 31, 2002; and thereafter Tenant shall
pay to Landlord Base Rent for both the RPA Remaining Premises and
the RPB Remaining Premises at the monthly rate of $1.59 per
rentable square foot, or Fifty-two Thousand Three Hundred
Eighty-two Dollars and Fifty-five Cents ($52,382.55).
The second table set forth in Section 8. Base Rent (Article 3) of
the Summary of Basic Lease Information in the Lease (for Base Rent for
the "Remaining Premises" from the "RP Commencement Date" through
December 31, 2002), is hereby revised in accordance with the following
schedule:
--------------------- ------------------ ------------------------- --------------
TERM REMAINING REMAINING PREMISES - MONTHLY
PREMISES SQUARE ANNUAL RENTAL RATE PER INSTALLMENT
FEET RENTABLE SQUARE FOOT OF BASE RENT
--------------------- ------------------ ------------------------- --------------
3/1/01 - 5/31/02 32,945 $18.24 $50,076.40
--------------------- ------------------ ------------------------- --------------
6/1/02 - 12/31/02 32,945 $19.08 $52,382.55
--------------------- ------------------ ------------------------- --------------
2.3 LETTER OF CREDIT.
Paragraph 20.2 LETTER OF CREDIT of the Lease is hereby
amended as follows:
Upon the RPB Commencement Date, the face amount of the
Letter of Credit shall be increased to be Two Million Dollars
($2,000,000.00).
3. EFFECT OF AMENDMENT: Except as modified herein, the terms and
conditions of the Lease shall remain unmodified and continue in full force and
effect. In the event of any conflict between the terms and conditions of the
Lease and this Amendment, the terms and conditions of this Amendment shall
prevail. Tenant hereby renews its obligations to Landlord for the full, prompt
and timely payment of all rents and other sums required to be paid by Tenant
during the term of the Lease as herein modified, and for the full, prompt and
timely performance of, compliance with and observation of all the terms
contained in the Lease as herein modified.
4. DEFINITIONS: Unless otherwise defined in this Amendment, all terms
not defined in this Amendment shall have the meaning set forth in the Lease.
5. NO BROKER: Each party warrants and represents to the other that no
real estate broker, sales person, finder or other person has the right to
payment of a commission or fee in connection with this Amendment as a
consequence of contacts with such party. Each party shall indemnify, protect,
defend and hold the other harmless from any and all loss, cost, damage or
expense (including attorneys' fees and costs, including fees and costs on
appeal, if any) arising out of or related to claims for a real estate brokerage
commission, finder's fee or similar compensation, based upon allegations by the
claimant that it is entitled to a commission, fee or other compensation from the
indemnified party as a consequence of contacts with the indemnifying party.
6. ENTIRE AGREEMENT: The Lease and this Amendment constitute the entire
understanding between the parties with respect to the Premises. No subsequent
amendment will be effective unless it is in writing and executed by the parties.
7. COUNTERPARTS: This Amendment may be executed in counterparts, each of
which when executed and delivered shall be an original.
8. AUTHORITY: Subject to the provisions of the Lease, this Amendment
shall be binding upon and inure to the benefit of the parties hereto, their
respective heirs, legal representatives, successors and assigns. Each party
hereto and the persons signing below warrant that the person signing below on
such party's behalf is authorized to do so and to bind such party to the terms
of this Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and
year first above written.
TENANT:
AVIGEN, INC.,
a Delaware corporation
Date: 12/13/00 By: /s/ XXXX XXXXXXX
------------------------------ ---------------------------------
Name: Xxxx Xxxxxxx
-------------------------------
Title: CEO
------------------------------
Date: By: /s/ XXXXXX X. XXXXXXX
------------------------------ ---------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------
Title: VP-Finance, CFO
------------------------------
E-3
3
LANDLORD:
LINCOLN-RECP EMPIRE OPCO, LLC,
a California limited liability company
By: Legacy Partners Commercial, Inc.,
as agent for LINCOLN-RECP EMPIRE OPCO, LLC,
Date: By: /s/ XXXXXX X. XXXXXX
------------------------ ----------------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------------------
Title: Senior Vice President
-------------------------------------
E-4
