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E
XHIBIT 10.67
FIRST AMENDMENT TO
PROPERTY LEASE AGREEMENT
BETWEEN ARE-1201 HARBOR BAY, LLC AND AVIGEN
FIRST AMENDMENT TO
LEASE
THIS FIRST AMENDMENT
TO LEASE (this " First
Amendment ") is made as of
August 30, 2007, by and between ARE-1201 HARBOR BAY, LLC , a Delaware limited liability company (" Landlord "), and AVIGEN,
INC. , a Delaware
corporation (" Tenant ").
RECITALS
A.
Landlord and Tenant are parties to that
certain Lease Agreement dated as of February 29, 2000, as amended
by that certain letter agreement dated January 26, 2004 (as
amended, the " Lease "). Pursuant to
the Lease, Tenant leases that certain premises consisting of
approximately 45,348 rentable square feet (the "
Premises ") in a building located at 1201 Harbor Bay
Parkway, Alameda, California (" Property "). The
Premises are more particularly described in the Lease. Capitalized
terms used herein without definition shall have the meanings
defined for such terms in the Lease.
B.
The Base Term of the Lease is scheduled
to expire on May 31, 2008.
C.
Tenant desires to amend the Lease to:
(i) reflect the surrender of that portion of the Premises
consisting of approximately 40,348 rentable square feet, as more
particularly described on Exhibit A attached to
this First Amendment (" Surrender Premises ") on
the scheduled expiration date of May 31, 2008; and (ii) extend the
Base Term with respect to the remaining portion of the Premises
consisting of approximately 4,834 rentable square feet, as more
particularly described on Exhibit B attached to
this First Amendment (" Retained Premises ")
until November 30, 2010 (" Expiration Date ").
Landlord is willing to agree to the foregoing on the terms and
conditions set forth herein.
NOW,
THEREFORE, in consideration
of the foregoing Recitals, which are incorporated herein by this
reference, the mutual promises and conditions contained herein, and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant
hereby agree as follows:
1.
Term . The Base Term of the
Lease with respect to the Retained Premises only is hereby extended
until the Expiration Date; provided, however, that either Landlord
or Tenant may at any time elect to terminate the Lease with respect
to the Retained Premises and accelerate the Expiration Date to a
date which is not less than 240 days after written notice from the
terminating party to the other party indicating the election to
terminate the Lease. Notwithstanding the foregoing, in no event
shall Landlord or Tenant elect to accelerate the Expiration Date to
a date prior to May 31, 2008. If Tenant elects to exercise the
termination right provided for in this Section 1, Tenant shall, in
addition to all of its other obligations under the Lease, be
required to pay a termination payment to Landlord, along with the
written notice of its election to terminate the Lease, in an amount
equal to 2 times the amount of Base Rent that would have been due
for the first full month after the accelerated Expiration
Date.
2.
Premises . As of June 1,
2008 (" New Commencement
Date "), the definitions of
“ Premises
” and " Rentable Area of Premises " on Page 1 of the Lease is hereby amended and
restated in their entirety as follows:
“
Premises: That portion of the Project, containing
approximately 4,834 rentable square feet, as determined by
Landlord, as shown on Exhibit
A "
“
Rentable Area of
Premises: 4,834 sq.
ft."
In addition, as of
the New Commencement Date, Exhibit A attached to
the Lease is hereby deleted in its entirety and replaced
with Exhibit B
attached to this First
Amendment.
40
3. Base
Rent . As of the New
Commencement Date, the definition of “ Base Rent ” on Page 1 of the Lease is hereby amended and restated
in its entirety as follows:
“
Base Rent: $2.50 per rentable square foot per month, subject
to adjustment pursuant to Section 4 of the Lease"
4. Security
Deposit . As of the New
Commencement Date, the definition of " Security Deposit "
on Page 1 of the Lease is hereby amended and restated in its
entirety as follows:
"
Security Deposit:
3 months Base Rent"
If, as of the New
Commencement Date, the Security Deposit then being held by Landlord
is in the form of cash, Landlord shall, within 30 days after
Landlord's receipt of a written request from Tenant, return the
difference between the amount of the Security Deposit then being
held by Landlord and an amount equal to 3 months Base Rent as of
the New Commencement Date. If, as of the New Commencement Date, the
Security Deposit then being held by Landlord is in the form of a
Letter of Credit, Landlord shall return the Letter of Credit being
held by Landlord within a reasonable period after Tenant's delivery
to Landlord of a substitute Letter of Credit in the amount of 3
months Base Rent as of the New Commencement Date, which substitute
Letter of Credit satisfies all of the requirements of the
Lease.
5. Rent
Adjustment Percentage . As
of the New Commencement Date, the definition of "
Rent Adjustment
Percentage " on Page 1 of
the Lease is here
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