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EXHIBIT 10.47
SECOND AMENDMENT TO LEASE AGREEMENT
This Second Amendment to Lease Agreement (the "Amendment") is made and entered
into as of February 12, 2001, 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, as amended by that certain First Amendment to
Lease Agreement dated as of December 1, 2000 (collectively, 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. The terms of the Lease were for a "full-service" lease; Tenant wishes to
amend the Lease to be a "triple net" Lease at a lower rental rate, and
Landlord is agreeable to the same.
C. 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 BASE RENT.
ARTICLE 3 - BASE RENT of the Lease is hereby amended as follows:
The first table set forth in Section 8. Base
Rent (Article 3) of the Summary of Basic Lease Information in the Lease is
hereby revised in accordance with the following schedule:
----------------------- ----------- ----------------------- ----------------------
TERM SQUARE ANNUAL RENTAL RATE MONTHLY INSTALLMENT
FEET PER RENTABLE SQUARE OF BASE RENT
FOOT
----------------------- ----------- ----------------------- ----------------------
12/1/00 -- 11/30/01 34,537 $17.62 $ 50,711.83
----------------------- ----------- ----------------------- ----------------------
12/1/01 -- 11/30/02 34,537 $18.34 $ 52,784.05
----------------------- ----------- ----------------------- ----------------------
12/1/02 -- 12/31/02 34,537 $19.06 $ 54,856.27
----------------------- ----------- ----------------------- ----------------------
1/1/03 -- 11/30/03 67,482 $19.06 $107,183.91
----------------------- ----------- ----------------------- ----------------------
12/1/03 -- 11/30/04 67,482 $19.90 $111,907.65
----------------------- ----------- ----------------------- ----------------------
12/1/04 -- 11/30/05 67,482 $20.62 $115,956.57
----------------------- ----------- ----------------------- ----------------------
12/1/05 -- 11/30/06 67,482 $21.46 $120,680.31
----------------------- ----------- ----------------------- ----------------------
12/1/06 -- 11/30/07 67,482 $22.30 $125,404.05
----------------------- ----------- ----------------------- ----------------------
12/1/07 -- 11/30/08 67,482 $23.14 $130,127.79
----------------------- ----------- ----------------------- ----------------------
12/1/08 -- 11/30/09 67,482 $23.98 $134,851.53
----------------------- ----------- ----------------------- ----------------------
12/1/09 -- 11/30/10 67,482 $24.94 $140,250.09
----------------------- ----------- ----------------------- ----------------------
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 $0.99 per rentable square foot, or Thirty-two Thousand
Five Hundred Sixty Dollars and Sixty-four Cents ($32,560.64),
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 $1.06 per rentable
square foot, or Thirty-four Thousand Eight Hundred Sixty-six
Dollars and Seventy-nine Cents ($34,866.79).
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 ANNUAL RENTAL RATE PER INSTALLMENT
SQUARE FEET RENTABLE SQUARE FOOT OF BASE RENT
----------------------- ---------------- ------------------------- --------------
3/1/01 - 5/31/02 32,945 $11.86 $32,560.64
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6/1/02 - 12/31/02 32,945 $12.70 $34,866.79
----------------------- ---------------- ------------------------- --------------
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Advance Rent (Section 3.1) shall be Fifty Thousand Seven
Hundred Eleven Dollars and Eighty-three Cents ($50,711.83).
2.2 DELETION OF BASE YEAR. Section 9.1 -- Base Year for Tenant's
Share of Direct Expenses -- of the Summary of Basic Lease Information in
the Lease, and Section 4.3.1 of the Lease are hereby deleted in their
entirety, it being the intention of the parties that there shall be no
"Base Year" in the Lease, and that Tenant shall pay Direct Expenses
without any deduction for Base Year expenses.
2.3 ADDITIONAL RENT. Section 4.1 of the Lease is hereby deleted
in its entirety and replaced by the following:
4.1 ADDITIONAL RENT. Commencing on the Lease Commencement
Date and continuing throughout the balance of the Lease Term,
Tenant shall pay as additional rent the "Tenant's Share", as
defined in Section 4.3.8, of Direct Expenses. Such additional
rent, together with any and all other amounts payable by Tenant
to Landlord pursuant to the terms of this Lease (including,
without limitation, pursuant to Article 6), shall be hereinafter
collectively referred to as the "Additional Rent." The Base Rent
and Additional Rent are herein collectively referred to as the
"Rent." All amounts due under this Article 4 as Additional Rent
shall be payable for the same periods and in the same manner,
time and place as the Base Rent. Without limitation on other
obligations of Tenant which shall survive the expiration of the
Lease Term, the obligations of Tenant to pay the Additional Rent
provided for in this Article 4 which is properly attributable to
the Lease Term shall survive the expiration or earlier
termination of the Lease Term.
2.4 OPERATING EXPENSES. The first paragraph of Section 4.3.5 of
the Lease is hereby deleted in its entirety and replaced by the
following:
4.3.5 "Operating Expenses" shall mean all expenses, costs
and amounts of every kind and nature which Landlord shall pay
during any Expense Year because of or in connection with the
ownership, management, maintenance, repair, replacement,
restoration or operation of the Building, Complex and Real
Property, including, without limitation, any amounts paid for:
(i) the cost of licenses, certificates, permits and inspections,
and the cost of contesting the validity or applicability of any
governmental enactments which may affect Operating Expenses, and
the costs incurred in connection with implementation and
operation of any transportation system management program or
similar program required by any governmental authority; (ii) the
cost of insurance carried by Landlord, in such amounts as
Landlord may reasonably determine or as may be required by any
mortgagees or the lessor of any underlying or ground lease
affecting the Real Property, the Complex and/or the Building,
including any commercially reasonable deductibles; (iii) the cost
of exterior landscaping, exterior relamping, supplies, tools,
equipment and materials, and all fees, charges and other costs
(including consulting fees, legal fees and accounting fees)
incurred by Landlord in connection with the management,
operation, repair and maintenance of the Building, the Complex
and Real Property; (iv) the cost of parking area repair,
restoration, and maintenance; (v) any equipment rental agreements
or management agreements (including the cost of any management
fee and the fair rental value of any office space provided
thereunder); (vi) wages, salaries and other compensation and
benefits of all persons directly engaged (whether or not 100% of
such person's efforts are devoted to this Building, Complex and
Real Property, provided that only the portion attributable to
this Building, Complex and Real Property shall be included in
Operating Expenses) in the operation, management, maintenance or
security of the Building, the Complex and the Real Property, and
employer's Social Security taxes, unemployment taxes or
insurance, and any other taxes which may be levied on such wages,
salaries, compensation and benefits; (vii) payments under any
easement, license, operating agreement, declaration, restrictive
covenant, underlying or ground lease (excluding rent), or
instrument pertaining to the sharing of costs by the Building,
Complex or Real Property; (viii) the cost of alarm and security
service (if any security service is provided by Landlord), fire
protection and life/safety systems and services, exterior window
cleaning, trash removal, maintenance and replacement of curbs and
walkways, repair to roofs and re-roofing; (ix) any and all
levies, charges, fees and/or assessments payable to any
applicable owner's association and/or condominium association
with respect to the Complex; (x) amortization (including interest
on the unamortized cost) of the cost of acquiring or the rental
expense of personal property used by Landlord in the maintenance,
operation and repair of the Building, Complex and Real Property;
and (xi) the cost of any capital improvements or other costs (I)
which are intended as a labor-saving device or to effect other
economies in the operation or maintenance of the Building,
Complex and Real Property, to the extent that the same result in
savings, and (II) made to the Building, Complex or Real Property
after the Lease Commencement Date that are required under any
governmental law or regulation adopted subsequent to the
Commencement Date, or (III) which are reasonably determined by
Landlord to be in the best interests of the Building, the Complex
and/or the Real Property; provided, however, that if any such
cost described in (I), (II) or (III) above, is a capital
expenditure, such cost shall be amortized (including interest on
the unamortized cost) over its estimated useful life as Landlord
shall reasonably determine, which estimated useful life shall be
comparable to that used by landlords of comparable buildings in
the vicinity of the Complex. If Landlord is not furnishing any
particular work or service (the cost of which, if performed by
Landlord, would be included in Operating Expenses) to a tenant
who has undertaken to perform such work or service in lieu of the
performance thereof by Landlord, Operating Expenses shall be
deemed to be increased by an amount equal to the additional
Operating Expenses which would reasonably have been incurred
during such period by Landlord if it had at its own expense
furnished such work or service to such tenant. If the Building or
the Complex is not fully occupied during all or a portion of any
Expense Year, Landlord shall make an appropriate adjustment to
the variable components of Operating Expenses for such year or
applicable portion thereof, employing sound accounting and
management principles, to
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determine the amount of Operating Expenses that would have been
paid had the Building and/or the Complex been fully occupied; and
the amount so determined shall be deemed to have been the amount
of Operating Expenses for such year, or applicable portion
thereof. Landlord shall have the right, from time to time, to
equitably allocate some or all of the Operating Expenses among
different tenants of the Building and/or the Complex (the "Cost
Pools"). Such Cost Pools may include, without limitation, the
office space tenants and retail space tenants of the Building
and/or the Complex.
In addition, the last sentence of the second paragraph of Section
4.3.5 and all of Section 4.3.7.2 are hereby deleted in their entirety.
2.5 SYSTEMS AND EQUIPMENT. Section 4.3.6 of the Lease is hereby
deleted in its entirety and replaced by the following:
4.3.6 "Systems and Equipment" shall mean any plant,
machinery, transformers, duct work, cable, wires, and other
equipment, facilities, and systems designed to supply heat,
ventilation, air conditioning and humidity or any other services
or utilities, or comprising or serving as any component or
portion of the electrical, gas, steam, plumbing, sprinkler,
communications, alarm, or security systems or equipment, or any
other mechanical, electrical, electronic, computer or other
systems or equipment which serve the Premises in whole or in
part.
2.6 TENANT'S SHARE OF DIRECT EXPENSES. Section 4.4.1 and Section
4.4.2.1 of the Lease are hereby deleted in their entirety and replaced
by the following:
4.4.1 TENANT'S SHARE OF DIRECT EXPENSES. For any Expense
Year ending or commencing within the Lease Term, Tenant shall pay
to Landlord, in the manner set forth in Section 4.4.2, below, and
as Additional Rent, Tenant's Share of Direct Expenses for such
Expense Year.
4.4.2 STATEMENT OF ACTUAL DIRECT EXPENSES AND PAYMENT BY
TENANT.
4.4.2.1 Landlord shall endeavor to give to Tenant
on or before the first day of the sixth month following the end
of each Calendar Year, a statement (the "Statement") which shall
state the Direct Expenses incurred or accrued for such preceding
Expense Year. Upon receipt of the Statement for each Expense Year
ending during the Lease Term, Tenant shall pay, with its next
installment of Base Rent due, the full amount of the Direct
Expenses for such Expense Year, less the amounts, if any, paid
during such Expense Year as the "Estimate," as that term is
defined in Section 4.4.3 of this Lease. In the event that the
amount paid by Tenant during such Expense Year as an Estimate
exceeds the actual Direct Expenses, Landlord shall remit such
difference to Tenant within thirty (30) days. The failure of
Landlord to timely furnish the Statement for any Expense Year
shall not prejudice or prevent Landlord from enforcing its rights
under this Article 4. Even though the Lease Term has expired and
Tenant has vacated the Premises, when the final determination is
made of Tenant's Share of the Direct Expenses for the Expense
Year in which this Lease terminates, Tenant shall immediately pay
to Landlord the full amount of the Direct Expenses for such
Expense Year, less the amounts, if any, paid during such Expense
Year as the Estimate, and any overpayment by Tenant shall be
returned to Tenant within thirty (30) days.
2.7 STATEMENT OF ESTIMATED DIRECT EXPENSES. Section 4.4.3 of the
Lease is hereby deleted in its entirety and replaced by the following:
4.4.3 STATEMENT OF ESTIMATED DIRECT EXPENSES. In addition,
Landlord shall endeavor to give Tenant a yearly expense estimate
statement (the "Estimate Statement") which shall set forth
Landlord's reasonable estimate (the "Estimate") of what the total
amount of Direct Expenses for the then-current Expense Year. The
failure of Landlord to timely furnish the Estimate Statement for
any Expense Year shall not preclude Landlord from enforcing its
rights to collect any Estimate under this Article 4. Commencing
on the Commencement Date, Tenant shall pay, with its next
installment of Base Rent due, a fraction of the Estimate for the
then-current Expense Year (reduced by any amounts paid pursuant
to the last sentence of this Section 4.4.3). Such fraction shall
have as its numerator the number of months which have elapsed in
such current Expense Year to the month of such payment, both
months inclusive, and shall have twelve (12) as its denominator.
Until a new Estimate Statement is furnished, Tenant shall pay
monthly, with the monthly Base Rent installments, an amount equal
to one-twelfth (1/12) of the total Estimate set forth in the
previous Estimate Statement delivered by Landlord to Tenant.
2.8 SERVICES AND UTILITIES. Article 6 of the Lease is hereby
deleted in its entirety and replaced by the following:
ARTICLE 6 - SERVICES AND UTILITIES
6.1 STANDARD TENANT SERVICES. Landlord shall provide the
following services on all days during the Lease Term, unless
otherwise stated below.
6.1.1 Landlord shall provide adequate electrical
wiring and facilities for normal general office use as reasonably
determined by Landlord. Tenant shall bear the cost of power,
replacement of lamps, starters and ballasts for lighting fixtures
within the Premises.
6.1.2 Landlord shall provide exterior window
washing services in a manner consistent with other comparable
buildings in the vicinity of the Building.
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Landlord shall have no responsibility for providing
the following services, and Tenant shall be responsible for the
same: (i) heating, ventilation or air-conditioning service,
supplies, maintenance or repairs; (ii) electrical power, service,
supplies, maintenance or repairs; (iii) water and sewer; (iv)
janitorial service or supplies; (v) freight and passenger
elevator service; (vi) interior landscaping; (vii) plumbing
service, supplies, maintenance or repairs; or (viii) any other
utilities.
6.2 INTERRUPTION OF USE. Tenant agrees that Landlord shall
not be liable for damages, by abatement of Rent or otherwise, for
inability of Tenant to obtain or delay in obtaining any service
(including telephone and telecommunication services), or for any
diminution in the quality or quantity thereof; and such inability
or delays or diminution shall never be deemed to constitute an
eviction or disturbance of Tenant's use and possession of the
Premises or relieve Tenant from paying Rent or performing any of
its obligations under this Lease. Furthermore, Landlord shall not
be liable under any circumstances for a loss of, or injury to,
property or for injury to, or interference with, Tenant's
business, including, without limitation, loss of profits, however
occurring, through or in connection with or incidental to an
inability to obtain any of the services or utilities as set forth
in this Article 6. Notwithstanding the foregoing, if an inability
to obtain utilities results from the gross negligence or willful
misconduct of Landlord, or its employees, agents and contractors,
and not due to any fault or breach by Tenant, and the Premises
are not usable by Tenant for the conduct of Tenant's business as
a result thereof, Base Rent and applicable Direct Expenses not
actually incurred up to that point by Tenant shall be abated for
the period which commences five (5) business days after the date
Tenant gives to Landlord notice of such interruption until such
utilities are restored.
6.3 OFFICE AND COMMUNICATIONS SERVICES.
6.3.1 Landlord has advised Tenant that certain
office and communications services may be offered to tenants of
the Building by a concessionaire under contract to Landlord
("Provider"). Tenant shall be permitted to contract with Provider
for the provision of any or all of such services on such terms
and conditions as Tenant and Provider may agree. Tenant shall
also be permitted to obtain office and communications services
from any other reputable person or entity in the business of
providing the same (herein called an "Alternate Provider"),
provided that Landlord shall not be required thereby to make any
alterations in or to any part of the Building or the use of any
facilities or equipment of the Building, and provided further
that no such services provided by an Alternate Provider, or any
equipment or facilities used or to be used in connection
therewith shall be incompatible in any respect with, or shall
interfere with or otherwise impair or adversely affect, the
operation, reliability or quality of the Building systems or any
services, equipment or facilities used or operated by Provider or
any other tenant in the Building.
6.3.2 Tenant acknowledges and agrees that: (i)
Landlord has made no warranty or representation to Tenant with
respect to the availability of any such services, whether
provided by Provider or any Alternate Provider, or the quality,
reliability or suitability thereof; (ii) neither Provider nor any
Alternate Provider is acting as the agent or representative of
Landlord in the provision of such services, and Landlord shall
have no liability or responsibility for any failure or inadequacy
of such services or any equipment or facilities used in the
furnishing thereof, or any act or omission of Provider or any
Alternate Provider or their agents, employees, representatives,
officers or contractors; (iii) Landlord shall have no
responsibility or liability for the installation, alteration,
repair, maintenance, furnishing, operation adjustment or removal
of any such services, equipment or facilities; and (iv) any
contract or other agreement between Tenant and Provider or any
Alternate Provider shall be independent of this Lease, the
obligations of Tenant hereunder, and the rights of Landlord
hereunder. Without limiting the generality of the foregoing, no
default or failure of Provider or any Alternate Provider with
respect to any such services, equipment, facilities, or under any
contract or agreement relating thereto, shall have any effect on
this Lease or give to Tenant any offset or defense to the full
and timely performance of its obligations hereunder, or entitle
Tenant to any abatement of Rent or Additional Rent or any other
payment required to be made by Tenant hereunder, or constitute
any actual or constructive eviction of Tenant, or otherwise give
rise to any other claim of any nature against Landlord.
6.4 UTILITIES FOR LABORATORY SPACE. In the event Tenant
constructs a laboratory within the Premises, Tenant shall cause
such laboratory to be separately metered and shall pay the
utility companies directly for the cost of any utilities. In the
event Tenant pays the utility companies directly for the cost of
any utilities, costs for such utilities shall not be included in
Direct Expenses.
2.9 REPAIRS AND MAINTENANCE. Article 7 - Repairs of the Lease is
hereby deleted in its entirety and replaced by the following:
7. REPAIRS AND MAINTENANCE
7.1 TENANT'S REPAIRS AND MAINTENANCE OBLIGATIONS: Except
for those portions of the Premises to be maintained by Landlord,
as provided in Sections 7.2 and 7.3 below, Tenant shall, at its
sole cost and expense, keep and maintain all parts of the
Premises in good, clean and safe condition and repair, promptly
making all necessary repairs and replacements, whether ordinary
or extraordinary, with materials and workmanship of the same
character, kind and
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quality as the original thereof, all of the foregoing to the
reasonable satisfaction of Landlord including, but not limited
to, repairing any damage caused by Tenant or any of Tenant's
Representatives and replacing any property so damaged by Tenant
or any of Tenant's Representatives. Without limiting the
generality of the foregoing, Tenant shall be solely responsible
for promptly maintaining, repairing and replacing (a) all
mechanical systems, heating, ventilation and air conditioning
systems exclusively serving the Premises, unless maintained by
Landlord, (b) all plumbing work and fixtures exclusively serving
the Premises (from their point of entry into the Premises), (c)
electrical wiring systems, fixtures and equipment exclusively
serving the Premises (from their point of entry into the
Premises), (d) all interior lighting (including, without
limitation, light bulbs and/or ballasts), (e) all glass, windows,
window frames, window casements, skylights, interior and exterior
doors, door frames and door closers located within the Premises,
(f) all roll-up doors, ramps and dock equipment located within
the Premises, (g) all tenant signage, (h) lifts for disabled
persons exclusively serving the Premises, (i) sprinkler systems,
security systems exclusively serving the Premises, except to the
extent maintained by Landlord, and (j) all lighting systems,
partitions, fixtures, equipment, interior painting, interior
walls and floors and floor coverings, and ceiling tiles and
fixtures of the Premises and every part thereof (including,
without limitation, any demising walls contiguous to any portion
of the Premises). Additionally, Tenant shall be solely
responsible for performance of the regular removal of trash and
debris. Tenant shall have no right of access to or right to
install any device on the roof of the Premises nor make any
penetrations of the roof of the Premises without the express
prior written consent of Landlord. Tenant shall obtain and
maintain throughout the term of this Lease maintenance and
service contracts for the elevator and for the heating,
ventilation and air-conditioning system, including periodic
maintenance therefor, reasonably satisfactory to Landlord, and
shall provide Landlord with copies thereof and such reasonable
assurances that such contracts are in full force and effect as
Landlord may reasonably require.
7.2 MAINTENANCE BY LANDLORD: Subject to the provisions of
Section 7.1 above, and further subject to Tenant's obligation
under Article 4 to reimburse Landlord, in the form of Additional
Rent, for the cost and expense of the following described items,
Landlord agrees to repair and maintain the following items: fire
protection and life/safety systems and services; the roof and
roof coverings (provided that Tenant installs no additional air
conditioning or other equipment on the roof that damages the roof
coverings, in which event Tenant shall pay all costs relating to
the presence of such additional equipment); exterior painting of
the Premises; exterior window cleaning; exterior lighting
adjacent to the Premises; and the parking areas, pavement,
landscaping, sprinkler systems, sidewalks, driveways and curbs.
Notwithstanding anything in this Article 7 to the contrary,
Landlord shall have the right to either repair or to require
Tenant to repair any damage to any portion of the Premises caused
by or created due to any act, omission, negligence or willful
misconduct of Tenant or any of Tenant Representatives and to
restore the Premises to the condition existing prior to the
occurrence of such damage. If Landlord elects to perform such
repair and restoration work, Tenant shall reimburse Landlord upon
demand for all costs and expenses incurred by Landlord in
connection therewith. Tenant shall promptly report, in writing,
to Landlord any defective condition known to it which Landlord is
required to repair, and failure to so report any such defect
shall make Tenant responsible to Landlord for any liability
incurred by Landlord by reason of such condition, to the extent
such liability is due to Tenant's failure to so report such
defect.
7.3 LANDLORD'S REPAIRS AND MAINTENANCE OBLIGATIONS:
Subject to the provisions of Section 7.1 and Articles 25 and 26,
and except for repairs rendered necessary by the intentional or
negligent acts or omissions of Tenant or any of Tenant's
Representatives, Landlord agrees, at Landlord's sole cost and
expense, to (a) keep in good repair the structural portions of
the floors, foundations and exterior perimeter and interior load
bearing walls of the Premises (exclusive of glass and exterior
doors), and (b) replace the structural portions of the roof of
the Premises (excluding the roof membrane).
7.4 TENANT'S FAILURE TO PERFORM REPAIRS AND MAINTENANCE
OBLIGATIONS: If Tenant refuses or neglects to repair and maintain
the Premises and the other areas properly as required herein and
to the reasonable satisfaction of Landlord, Landlord may, but
without obligation to do so, at any time make such repairs or
maintenance without Landlord having any liability to Tenant for
any loss or damage that may accrue to Tenant's Property or to
Tenant's business by reason thereof, except to the extent any
damage is caused by the willful misconduct or gross negligence of
Landlord or its authorized agents and representatives. If
Landlord makes such repairs or maintenance, upon completion
thereof Tenant shall pay to Landlord, as Additional Rent,
Landlord's costs and expenses incurred therefor. The obligations
of Tenant hereunder shall survive the expiration of the Term of
this Lease or the earlier termination thereof. Tenant hereby
waives any right to repair at the expense of Landlord under any
applicable Laws now or hereafter in effect with respect to the
Premises.
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
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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: 2/13/01 By: /s/ XXXX XXXXXXX
----------------------- ----------------------------------
Name: Xxxx Xxxxxxx
--------------------------------
Title: CEO
-------------------------------
Date: 2/13/01 By: /s/ XXXXXX X. XXXXXXX
----------------------- ----------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------
Title: VP-Finance, CFO
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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/ XXXXX XXXXX
----------------------- ----------------------------------
Name: Xxxxx Xxxxx
--------------------------------
Title: Senior Vice President
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