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Exhibit
10.67
SECOND AMENDMENT
TO LEASE
This Second Amendment to Lease (the “
Second Amendment
“) is made as of March 6, 2008
(“ Execution
Date ”), by and
between ARE – 1201 HARBOR BAY, LLC, a Delaware limited
liability company, having an address at 385 East Colorado
Boulevard, Suite 299, Pasadena, California 91101 ("
Landlord "), and AVIGEN, INC., a Delaware corporation,
having an address at 1201 Harbor Bay Parkway, Alameda, California
94502 (" Tenant
").
RECITALS
A . Landlord and Tenant
have entered into that certain Lease dated as of February 29, 2000,
as amended by that certain First Amendment to Lease dated August
30, 2007 (“ First
Amendment ”) (as
amended, the “ Lease “) for a
portion of the building located at 1201 Harbor Bay Parkway,
Alameda, California.
B. Initially capitalized terms used but not
defined herein shall have the meanings set forth in the
Lease.
C. Landlord and Tenant desire to amend the Lease
to, among other things, release tenant from certain obligations
related to the restoration of the Lucent Space in exchange for a
payment to Landlord.
AGREEMENT
Now, therefore, the
parties hereto agree that the Lease is amended as
follows:
1.
Section 6
. Section 6(b) of the Lease is hereby
deleted in its entirety.
2.
Section 12
. The third sentence of Section 12 of
the Lease is hereby deleted in its entirety.
3.
Removal of
Alterations .
Notwithstanding anything set forth in the Lease to the
contrary, Tenant shall have no
obligation as of the expiration of the Base Term to remove any
Alterations existing in the Premises as of the Execution Date
(including any Disfavored Improvements).
4.
Consideration
. In consideration for this Second
Amendment, Tenant shall pay to ARE – 1201 Harbor Bay, LLC the sum of TWO HUNDRED TEN
THOUSAND DOLLARS ($210,000.00) (“ Release
Payment ”) within five
(5) business days of the Execution Date, by wire transfer or by
certified or bank check payable to ARE – 1201 Harbor Bay LLC.
This Second Amendment shall become effective upon receipt of the
Release Payment. Tenant agrees that notwithstanding any assignment
of the Lease by Landlord, Tenant shall pay the Release Payment to
ARE – 1201 Harbor Bay LLC and not to any such assignee of
Landlord.
5.
Restoration
Deposit . The Security
Deposit and the Restoration Deposit are currently being held by
Landlord in the form of a single letter of credit (“
Existing LOC ”). Upon receipt of the Release Payment and
a substitute letter of credit in the amount of the Security
Deposit, which substitute letter of credit satisfies all of the
requirements of the Lease (“ Substitute LOC ”), Landlord shall return the Existing LOC to Tenant.
Landlord acknowledges that, pursuant to the First
Amendment, the Security Deposit will be
reduced effective as of June 1, 2008 and Tenant may deliver a
substitute letter of credit in connection therewith as set forth
more particularly in the First Amendment.
35
6.
Miscellaneous
.
(a) This Second Amendment is the entire
agreement between the parties with respect to the subject matter
hereof and supersedes all prior and conte
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