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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 10-Q
------------------------
(MARK ONE)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ____________ TO ____________ .
COMMISSION FILE NUMBER: 0-28272
AVIGEN, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 13-3647113
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
1201 HARBOR BAY PARKWAY, SUITE 1000,
ALAMEDA, CALIFORNIA 94502
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES AND ZIP CODE)
(510) 748-7150
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
NOT APPLICABLE
(FORMER NAME, FORMER ADDRESS AND FORMER FISCAL YEAR, IF CHANGED SINCE LAST
REPORT)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes [X] No [ ]
As of May 5, 2000, 16,931,234 shares of the registrant's Common Stock,
$.001 par value, were issued and outstanding.
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AVIGEN, INC.
FORM 10-Q
QUARTER ENDED MARCH 31, 2000
INDEX
<TABLE>
<CAPTION>
PAGE
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<S> <C> <C>
PART I. FINANCIAL INFORMATION
Item 1. Condensed Balance Sheets
March 31, 2000 and June 30, 1999.......................... 3
Condensed Statements of Operations
Three- and nine-month periods ended March 31, 2000 and
1999 and for the period from October 22, 1992 (inception)
through March 31, 2000.................................... 4
Condensed Statements of Cash Flows
Nine-months ended March 31, 2000 and 1999 and for the
period from October 22, 1992 (inception) through March 31,
2000...................................................... 5
Notes to Condensed Financial Statements..................... 6
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations................................. 7
Item 3 Quantitative and Qualitative Disclosures About Market
Risk...................................................... 10
PART II. OTHER INFORMATION
Item 1. Legal Proceedings........................................... 10
Item 2. Changes in Securities and Use of Proceeds................... 10
Item 3. Defaults upon Senior Securities............................. 11
Item 4. Submission of Matters to a Vote of Security Holders......... 11
Item 5. Other Information........................................... 11
Item 6. Exhibits and Reports on Form 8-K............................ 11
Signatures........................................................... 12
</TABLE>
2
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ITEM 1. FINANCIAL STATEMENTS
AVIGEN, INC.
(A DEVELOPMENT STAGE COMPANY)
CONDENSED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE DATA)
ASSETS
<TABLE>
<CAPTION>
MARCH 31, 2000 JUNE 30, 1999
-------------- -------------
(UNAUDITED)
<S> <C> <C>
Current Assets:
Cash and cash equivalents................................. $ 11,061 $ 2,945
Investment in marketable.................................. 37,646 11,936
securities Accounts receivable............................ 83 185
-------- --------
Total current..................................... 48,790 15,066
assets Property and equipment, net........................ 1,232 1,050
Deposits and other assets................................... 2,189 67
-------- --------
Total assets...................................... $ 52,211 $ 16,183
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Accounts payable.......................................... $ 371 $ 251
Accrued compensation and related expenses................. 354 343
Other accrued liabilities................................. 364 304
Capital lease obligations -- current portion.............. 256 697
-------- --------
Total current liabilities......................... 1,345 1,595
Accrued rent.............................................. 123 153
Capital lease obligations (less current................... 26 112
portion) Stockholders' equity:
Common Stock, $.001 par value, 30,000,000 shares
Authorized, 15,618,834 shares issued and outstanding at
March 31, 2000, 12,358,898 shares issued and
Outstanding at June 30, 1999........................... 15 12
Additional paid-in capital................................ 99,500 51,087
Deferred compensation..................................... -- (5)
Deficit accumulated during the development stage.......... (48,798) (36,771)
-------- --------
Total stockholders' equity........................ 50,717 14,323
-------- --------
Total liabilities and stockholders' equity........ $ 52,211 $ 16,183
======== ========
</TABLE>
See accompanying notes.
3
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AVIGEN, INC.
(A DEVELOPMENT STAGE COMPANY)
CONDENSED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
PERIOD
FROM
OCTOBER 22,
1992
THREE MONTHS ENDED NINE MONTHS ENDED (INCEPTION)
MARCH 31 MARCH 31 THROUGH
------------------------- ------------------------ MARCH 31,
2000 1999 2000 1999 2000
----------- ----------- ----------- ---------- -----------
<S> <C> <C> <C> <C> <C>
Grant revenue...................... $ 19 $ 25 $ 58 $ 199 $ 606
Expenses:
Research and development......... 6,934 1,561 10,292 4,658 35,380
General and administrative....... 1,113 976 3,140 2,573 16,184
----------- ----------- ----------- ---------- --------
Total expenses........... 8,047 2,537 13,432 7,231 51,564
----------- ----------- ----------- ---------- --------
Loss from operations............... (8,028) (2,512) (13,374) (7,032) (50,958)
Interest expense................... (15) (40) (70) (143) (1,200)
Interest income.................... 870 93 1,427 241 3,210
Other income (expense)............. (4) (7) (10) (8) 150
----------- ----------- ----------- ---------- --------
Net loss........................... $ (7,177) $ (2,466) $ (12,027) $ (6,942) $(48,798)
=========== =========== =========== ========== ========
Basic and diluted net loss per
share............................ $ (0.51) $ (0.24) $ (0.87) $ (0.78)
=========== =========== =========== ==========
Shares used in calculation of basic
and diluted net loss per share... 14,207,841 10,211,994 13,847,707 8,945,440
=========== =========== =========== ==========
</TABLE>
See accompanying notes.
4
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AVIGEN, INC.
(A DEVELOPMENT STAGE COMPANY)
CONDENSED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
PERIOD FROM
NINE MONTHS ENDED OCTOBER 22, 1992
MARCH 31, (INCEPTION)
--------------------- THROUGH
2000 1999 MARCH 31, 2000
--------- -------- ----------------
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net loss.................................................... $ (12,027) $ (6,942) $ (48,798)
Adjustments to reconcile net loss to net cash used in
operating activities
Depreciation and amortization.......................... 335 380 3,162
Amortization of deferred compensation.................. 5 30 162
Write-off of organization costs........................ -- -- 146
Noncash interest expense............................... -- -- 510
Common stock issued for services....................... -- -- 11
Stock options issued for services...................... -- -- 68
Warrants issued for Patent Licenses.................... 3,182 -- 3,182
Warrants issued for services........................... 33 -- 33
Changes in operating assets and liabilities:
Deposits and other assets.............................. (404) (313) (471)
Accounts receivable.................................... 102 -- (83)
Accounts payable, other accrued liabilities and accrued
compensation and related expenses.................... 191 (294) 1,386
Accrued Rent........................................... (30) (29) 123
--------- -------- ---------
Net cash used in operating activities....................... (8,613) (7,168) (40,569)
Investing activities Purchases of property and equipment.... (496) (95) (4,122)
Disposal of property and equipment.......................... -- -- 47
Organization costs.......................................... -- -- (219)
Purchase of marketable securities........................... (114,767) (10,126) (188,299)
Sale and maturity of marketable securities.................. 89,057 8,974 150,654
--------- -------- ---------
Net cash used in investing activities....................... (26,206) (1,247) (41,939)
Financing activities Proceeds from notes payable............ -- -- 2,133
Repayment of notes payable.................................. -- -- (1,710)
Proceeds from 1996 bridge financing......................... -- -- 1,937
Payment of bridge financing costs........................... -- -- (194)
Repayment of 1996 bridge financing.......................... -- -- (1,937)
Payments on capital lease obligations....................... (528) (470) (1,872)
Proceeds from sale-leaseback of equipment................... -- -- 1,927
Proceeds from issuance of preferred stock, net of issuance
costs..................................................... -- -- 9,885
Proceeds from issuance of common stock, net of issuance
costs..................................................... 43,463 9,162 83,400
--------- -------- ---------
Net cash provided by financing activities................... 42,935 8,692 93,569
Net increase in cash and cash equivalents................... 8,116 277 11,061
Cash and cash equivalents, beginning of period.............. 2,945 1,280 --
--------- -------- ---------
Cash and cash equivalents, end of period.................... $ 11,061 $ 1,557 $ 11,061
--------- -------- ---------
SUPPLEMENTAL DISCLOSURE
Issuance of warrants in connection with building lease
extension................................................. $ 1,738 -- $ 1,738
</TABLE>
See accompanying notes
5
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AVIGEN, INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS
1. INTERIM FINANCIAL STATEMENTS
The accompanying unaudited condensed financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, the accompanying financial
statements include all adjustments, consisting only of normal recurring
adjustments and accruals, that Avigen, Inc., hereafter referred to as the
Company, considers necessary for a fair presentation of its financial position
as of March 31, 2000 and its results of operations and cash flows for the three-
and nine-month periods ended March 31, 2000 and 1999. These unaudited interim
financial statements should be read in conjunction with the audited financial
statements of the Company and the notes thereto included in the Company's annual
report on Form 10-K for the fiscal year ended June 30, 1999, filed with the
Securities and Exchange Commission.
2. CASH, CASH EQUIVALENTS, AND MARKETABLE SECURITIES
The Company considers all highly liquid investments, with a maturity of
three months or less when purchased, to be cash equivalents. The Company
accounts for its marketable securities in accordance with Statement of Financial
Accounting Standards No. 115, "Accounting for Certain Investments in Debt and
Equity Securities." The Company's marketable securities consist principally of
available-for-sale government and corporate debt securities with a minimum
short-term rating of A1/P1 and a minimum long-term rating of A, and with
maturities of less than one year. Realized and unrealized gains and losses have
been insignificant to the results of operations and to the financial position of
the Company. All investments are classified as available for sale.
3. STOCKHOLDERS' EQUITY
In November 1999, the Company completed a private placement by issuing
2,033,895 shares of common stock and 406,779 warrants for an aggregate offering
price of approximately $37.3 million, net of issuance costs.
In April and May 2000, subsequent to the end of the nine-month period ended
March 31, 2000, the Company completed a public offering by issuing 1,150,000
shares of common stock for an aggregate offering price of approximately $28.1
million, net of issuance costs.
4. COMPREHENSIVE LOSS VERSUS NET LOSS
There is no difference between the Company's net loss and comprehensive
loss for either of the three- or nine-month periods ended March 31, 2000 and
March 31, 1999.
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion may be understood more fully by reference to the
financial statements, notes to the financial statements, and management's
discussion and analysis of financial conditions and results of operations
contained in the Company's Annual Report on Form 10-K for the year ended June
30, 1999, filed with the Securities and Exchange Commission.
This Quarterly Report on From 10-Q contains forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933 and Section 21E
of the Securities Exchange Act of 1934, including statements regarding Avigen's
drug development programs, clinical trials, receipt of regulatory approval,
capital needs, intellectual property, expectations and intentions. The words
"believe," "anticipate," "expect," "intend," and words of similar import are
intended to identify these statements as forward-looking statements. The
Company's actual results could differ materially from the results discussed in
the forward-looking statements. Factors that might cause or contribute to such
differences include those discussed herein and under the caption "Risk Factors"
in the Company's Annual Report on Form 10-K for the year ended June 30, 1999,
filed with the Securities and Exchange Commission.
OVERVIEW
Avigen is a leader in the development of gene therapy products derived from
adeno-associated virus, referred to as AAV, for the treatment of inherited
diseases. Avigen's proposed gene therapy products are designed for in
vivoadministration to achieve the production of therapeutic proteins within the
body. Avigen has focused on developing a broad-based proprietary gene delivery
technology, the AAV vector. Avigen believes AAV vectors can be used to deliver
genes for the treatment of hemophilia, Gaucher's disease, hereditary emphysema
and thalassemia.
Since its inception, the Company has devoted substantially all of its
resources to research and development activities. The Company is a development
stage company and has not received any revenue from the sale of products. The
Company does not anticipate generating revenue from the sale of products in the
foreseeable future. The Company expects its source of revenue, if any, for the
next several years to consist of government grants and payments under
collaborative arrangements. The Company has incurred losses since its inception
and expects to incur substantial losses over the next several years due to
ongoing and planned research and development efforts, including pre-clinical
studies and clinical trials. At March 31, 2000, the Company had an accumulated
deficit of $48.8 million.
RESULTS OF OPERATION
Three-Months Ended March 31, 2000 and 1999
Grant revenue was $19,000 for the three-months ended March 31, 2000
compared to $25,000 for the same period in 1999. Grant revenue consisted of
reimbursements under a National Institutes of Health grant. Revenues earned
under research grants are determined by the timing and amounts of the award from
the issuing agency and achievement of milestones by the Company. As a result,
research grant revenue earned in one period is not predictive of research grant
revenue to be earned in future periods. The National Institutes of Health grant
under which the current revenue was earned expired on March 31, 2000. The
Company is not currently involved with any other open grants, and therefore does
not anticipate any additional grant revenues for the foreseeable future.
The Company's research and development expenses totaled $6.9 million for
the three-month period ended March 31, 2000. However, included in these expenses
is a one-time $1.8 million cash payment and a one-time $3.2 million non-cash
charge recorded for the issuance of warrants, both in connection with the
acquisition of a non-exclusive worldwide license to Factor IX gene patents.
Excluding the impact of these one-time license acquisition charges, the
Company's research and development expenses for the three-month period ended
March 31, 2000 would have been $2.0 million, an increase of $440,000, or 28%,
from the research and development expenses incurred in the same period last
year. This increase was primarily due to increased personnel and recruitment
costs for additional scientific staff hired to support the Company's clinical
7
<PAGE> 8
trial for the treatment of Hemophilia B, which began in May 1999, as well as
other new pre-clinical research programs. Research fees paid in connection with
the new pre-clinical programs were $180,000 for the quarter-ended March 31,
2000, compared to no expenses in the same quarter last year.
General and administrative expenses totaled $1.1 million for the
three-month period ended March 31, 2000, an increase of $137,000, or 14%, from
the prior year. The increase was primarily due to higher personnel and
recruitment costs for increased staff, as well as higher legal fees related to
the Company's patent and other intellectual property activities.
Interest expense was $15,000 for the period, a decline of $25,000, or 62%,
from $40,000 in the three-month period ended March 31, 1999, primarily as a
result of scheduled payments that reduced the Company's equipment lease
obligation with Transamerica Business Credit.
Interest income rose to $870,000 for the three-months ended March 31, 2000,
an increase from $93,000 earned in the three-months ended March 31, 1999. This
rise in interest income primarily resulted from the increase in short term
investments from the application of the proceeds received from the private
placement of common stock and warrants since March 31, 1999.
Nine months Ended March 31, 2000 and 1999
Grant revenue was $58,000 for the nine-month period ended March 31, 2000
compared to $199,000 for the same period in 1999. Grant revenue consisted of
reimbursements under the National Institutes of Health grant described above.
The National Institutes of Health grant under which the current revenue was
earned expired on March 31, 2000. The Company is not currently involved with any
other open grants, and therefore does not anticipate any additional grant
revenues for the foreseeable future.
The Company's research and development expenses totaled $10.3 million for
the nine-month period ended March 31, 2000. Excluding the impact of the one-time
license acquisition charges described above, which totaled $5.0 million,
research and development expenses for the nine-month period ended March 31, 2000
would have been $5.4 million, an increase of $700,000, or 15%, from the research
and development costs incurred in the same period last year. This increase was
primarily related to the increase in personnel and recruitment costs for
additional scientific staff hired to support the Company's clinical trial for
the treatment of Hemophilia B, which began in May 1999, as well as other new
pre-clinical research programs. Research fees paid to collaborators in
connection with the clinical trial and other pre-clinical programs totaled
approximately $430,000 during the current nine-month period, and also
contributed significantly to the rise in expenses over the prior year levels.
These increases were partially reduced by lower depreciation charges from
leasehold improvements and lab equipment, which have been fully depreciated, as
well as lower expenses for external scientific consultants.
General and administrative expenses totaled $3.1 million for the nine-month
period ended March 31, 2000, an increase of $567,000, or 22%, from the prior
year period. The increase was primarily due to higher personnel and recruitment
costs for increased staff, as well as higher license and legal fees related to
the Company's patent and other intellectual property activities.
Interest expense was $70,000 for the nine-months ended March 31, 2000, a
decline of $72,000, or 51%, from the same period last year, primarily as a
result of scheduled payments that reduced the Company's equipment lease
obligation with Transamerica Business Credit.
Interest income totaled $1.4 million for the nine-months ended March 31,
2000, up from $241,000 earned in the same nine-month period last year. This rise
in interest income primarily resulted from the increase in short term
investments from the application of the proceeds received from the private
placement of common stock and warrants since March 31, 1999.
LIQUIDITY AND CAPITAL RESOURCES
Cash expenditures have exceeded revenue since the Company's inception. The
Company's operations have principally been funded through a public offering and
private placements of equity securities. Since the
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Company's initial public offering in May 1996, the Company has completed four
private placements of common stock and warrants to purchase common stock,
raising net proceeds of approximately $57.6 million. In addition, the Company
has attempted to contain costs and reduce cash flow requirements by renting
scientific equipment and facilities, contracting with other parties to conduct
research and development and using consultants. The Company expects to incur
additional expenses, resulting in significant losses, as it continues and
expands its research and development activities and undertakes additional
pre-clinical studies and clinical trials of its gene therapy product candidates.
The Company also expects to incur substantial expenses relating to the filing,
prosecution, maintenance, defense and enforcement of patent and other
intellectual property claims.
Cash used in operating activities was $8.6 million during the nine-month
period ended March 31, 2000 compared to $7.2 million for the comparable period
last year. This increase of $1.4 million, or 20%, included the impact of the
one-time cash payment of $1.8 million for the acquisition of Factor IX gene
patents in March 2000. Excluding this one-time payment, cash used in operating
activities for the nine-months ended March 31, 2000 was $6.9 million, a decline
of $305,000, or 4%, from the same nine-month period last year.
At March 31, 2000, the Company had cash, cash equivalents and investments
in marketable securities of approximately $48.7 million compared to
approximately $14.9 million at June 30, 1999, for an increase of $33.8 million.
This increase included proceeds from the Company's private placement of common
stock and warrants in October and November 1999, which raised approximately
$37.3 million, net of issuance costs, as well as from the exercise of previously
issued warrants and options which raised an additional $6.3 million during the
same period. Partially offsetting the proceeds from these equity transactions
was the $1.8 million one-time license acquisition payment and other cash used in
operating activities.
In April and May, subsequent to the end of the reported nine-month period
ended March 31, 2000, the Company completed a public offering of 1,150,000
shares of its common stock for approximately $28.1 million, net of issuance
costs. The Company expects its cash requirements to increase significantly in
future periods, but believes that its available cash and short-term investments,
including the proceeds received from the public offering in April and May, will
be sufficient to meet the Company's operating expenses and capital requirements
through at least the next two years. Despite this increase, the Company will
continue to require substantial additional funds to conduct the research and
development activities, pre-clinical studies, and clinical testing of its
potential products, as well as to manufacture and market any products that are
developed.
FUTURE CAPITAL NEEDS; UNCERTAINTY OF ADDITIONAL FUNDING
The Company will require substantial additional funding in order to
complete the research and development activities currently contemplated and to
commercialize its proposed products.
The Company's future operating and capital requirements. The Company
anticipates that its capital resources as of March 31, 2000, in addition to the
proceeds from the subsequent public offering in April and May 2000, will be
adequate to fund its needs through at least the next two years.
However, the Company's future operating and capital requirements will
depend on many factors, including:
- continued scientific progress in research and development programs;
- the scope and results of pre-clinical studies and clinical trials;
- the time and costs involved in obtaining regulatory approvals;
- the costs involved in filing, prosecuting and enforcing patent claims and
other intellectual property rights;
- competing technological developments;
- the cost of manufacturing scale-up;
- the cost of commercialization activities; and
- other factors which may not be within the Company's control.
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The Company intends to seek additional funding through public or private
equity or debt financing, when market conditions allow, or through collaberative
arrangements with corporate partners. If the Company raises additional funds by
issuing equity securities, there may be further dilution to existing
stockholders. The Company cannot assure its investors that it will be able to
enter into such financing arrangements on acceptable terms or at all. Without
such additional funding, the Company may be required to delay, reduce the scope
of, or eliminate one or more of its research or development programs.
The Company's facility was recently expanded to approximately 46,000 square
feet, and is leased through May 2008, with annual lease payments totaling
$679,000 for fiscal 2001 and increasing each year to approximately $1.1 million
for fiscal 2008. In November 1996, the Company secured a $2.0 million revolving
line of credit with Wells Fargo Bank that has been renewed annually and
continues to remain available to the Company. In May 1997, the Company secured a
capital lease facility under which, at March 31, 2000, the Company owed $282,000
and had no further availability. To the extent the Company decides to develop
its own manufacturing facilities, it would also require substantial additional
capital.
The Company's cash requirements may vary materially from those now planned
because of the results of research, development and clinical trials, the time
and costs involved in obtaining regulatory approvals, the cost of filing,
prosecuting, defending and enforcing patent claims and other intellectual
property rights, competing technological and market developments, changes in the
Company's existing research relationships, the ability of the Company to
establish collaborative arrangements, the development of commercialization
activities and arrangements, and the purchase or lease of additional capital
equipment.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK
The Company does not hold derivative financial investments, derivative
commodity investments or other financial investments or engage in foreign
currency hedging or other transactions that exposes it to material market risk.
The Company has also evaluated the risk associated with its Wells Capital
Management investments in marketable securities and, due to the short term
nature of these debt instruments, has concluded that such risks are immaterial.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
None.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
In March 2000, the Company issued two warrants to purchase an aggregate of
90,000 shares of common stock. One warrant was issued as partial consideration
to the grantee for entering into a contract for the non-exclusive license of
Factor IX gene patents, while the other warrant was issued as partial
consideration to the grantee for entering into a contract for the extension of
the Company's building lease through May 2008. The warrants are exercisable for
five years from the date of grant and were issued with exercise prices equal to
the reported closing Nasdaq market price on the corresponding grant dates. The
warrant issued in connection with the license carries an exercise price of $82
per share and the warrant issued in connection with the building lease extension
carries an exercise price of $56 per share. The securities were issued in
reliance on Section 4(2) under the Securities Act of 1933, as amended.
The Company received net proceeds of $3.7 million during the three-months
ended March 31, 2000 from the issuance of 486,000 shares of common stock
pursuant to the exercise of privately placed warrants. The warrants were
originally granted between March 1994 and November 1999, and had exercise prices
that ranged from $5.36 to $27.96 per share. These securities were issued in
reliance on Rule 506 of Regulation D and/or Section 4(2) under the Securities
Act of 1933, as amended.
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ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
ITEM 5. OTHER INFORMATION
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) The following exhibits are included herein:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
10.40* License Agreement, dated March 3, 2000, by and between BTG
International Ltd., a British corporation, and Avigen, Inc.
10.41 Property Lease Agreement between ARE-1201 Harbor Bay, LLC
and Avigen, Inc., dated February 29, 2000.
10.42 Property Sublease between Lucent Technologies, Inc. and
Avigen, Inc., dated February 1, 2000.
27 Financial Data Schedule
</TABLE>
- ---------------
* Confidential treatment has been requested for portions of this exhibit.
(b) Reports on Form 8-K
On February 3, 2000, the Company filed with the Commission a Current Report
on Form 8-K, disclosing under Item 5. Other Events, that the Company made a
public announcement stating that the Company proposed filing a registration
statement in connection with a follow-on public offering.
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SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AVIGEN, INC.
(Registrant)
Date: May 11, 2000 /s/ JOHN MONAHAN
--------------------------------------
John Monahan
Chief Executive Officer and President
Date: May 11, 2000 /s/ THOMAS J. PAULSON
--------------------------------------
Thomas J. Paulson
Vice President Finance,
Chief Financial and Accounting
Officer, and Secretary
12
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
10.40* License Agreement, dated March 3, 2000, by and between BTG
International Ltd., a British corporation, and Avigen, Inc.
10.41 Property Lease Agreement between ARE-1201 Harbor Bay, LLC
and Avigen, Inc., dated February 29, 2000.
10.42 Property Sublease between Lucent Technologies, Inc. and
Avigen, Inc., dated February 1, 2000.
27 Financial Data Schedule
</TABLE>
- ---------------
* Confidential treatment has been requested for portions of this exhibit.
<PAGE> 1
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT 10.40
LICENSE AGREEMENT
This License Agreement ("Agreement") is made this 3rd day of March 2000
("EFFECTIVE DATE") by and between BTG INTERNATIONAL LTD., a British corporation
("BTG"), having a principal place of business at 10 Fleet Place, Limeburner
Lane, London EC4M 7SB, ENGLAND and AVIGEN, INC., a Delaware corporation
("AVIGEN"), having a principal place of business at 1201 Harbor Bay Parkway,
#1000, Alameda, California 94502, U.S.A. (both BTG and AVIGEN being together
referred to as the "Parties").
PRELIMINARY STATEMENT
BTG has rights to certain patents relating to the Factor IX gene and
wishes to effect commercialization of human gene therapy products that
incorporate the Factor IX gene and that result in Factor IX protein expression
in vivo.
AVIGEN desires to acquire commercialization rights to the Factor IX gene
patents in order to commercialize and market products for human gene therapy
that incorporate the Factor IX gene and that result in Factor IX protein
expression in vivo.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, BTG and AVIGEN
agree as follows:
1. DEFINITIONS
In this Agreement, the following terms, including their correlative plural or
singular forms, shall have the following meanings:
1.01 "AFFILIATE(S)" shall mean any entity, directly or indirectly, controlling,
controlled by, or under common control with AVIGEN. The term "control"
(including as correlative meanings, the terms "controlling", "controlled by" and
"under common control with") shall mean direct or indirect ownership of at least
fifty percent (50%) of the stock or shares entitled to vote for the election of
directors of any entity, or the possession, direct or indirect, of the power to
cause the direction of the management and policies of an entity, whether through
the ownership of voting securities, by contract or otherwise.
1.02 "AGREEMENT" shall mean this Agreement, including all attachments hereto.
1.03 "BANKRUPTCY EVENT" shall mean any of the following:
(a) AVIGEN becomes insolvent, or generally fails to pay, or is generally
unable to pay, or admits in writing its inability to pay, its debts as they
become due or applies for, consents to, or acquiesces in, the appointment of a
trustee, receiver of other custodian for AVIGEN or a substantial part of its
property, or makes a general assignment for the benefit of creditors;
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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(b) AVIGEN commences any bankruptcy, reorganization, debt arrangement,
or other case or proceeding under any state or federal bankruptcy or insolvency
law, or any dissolution or liquidation proceeding;
(c) Any bankruptcy, reorganization, debt arrangement, or other case or
proceeding under any state or federal bankruptcy or insolvency law, or any
dissolution or liquidation proceeding is involuntarily commenced against or in
respect of AVIGEN, and such involuntary case or proceeding shall remain
undismissed and unstayed for a period of sixty (60) days, or an order for relief
is entered in any such case or proceeding; or
(d) A trustee, receiver, or other custodian is appointed for AVIGEN, or
a substantial part of AVIGEN'S property.
1.04 "COMPLETION" shall mean, with respect to a clinical trial carried out for
the purpose of securing marketing approval from a governmental regulatory
agency, the administration of a last dose of a Licensed Product to the last
enrolled subject of a clinical trial.
1.05 "DISTRIBUTOR" shall mean any entity with whom AVIGEN, its Affiliates or
Sublicensees establish a business arrangement for the commercial marketing of
the (i) Licensed Product or (ii) Licensed Product and Services.
1.06 "EFFECTIVE DATE" shall have the meaning set forth in the Preamble.
1.07 "FAIR MARKET VALUE" means the cash consideration that AVIGEN, or its
Affiliate, or its Sublicensee or Distributor would realize from an unaffiliated,
unrelated buyer in an arm's length sale of an identical item sold in the same
quantity and at the same time and place of the transaction.
1.08 "FIRST COMMERCIAL SALE" shall mean the first sale of a Licensed Product in
any country within the Licensed Territory by AVIGEN, its Affiliates,
Sublicensees, or Distributors following approval of its commercial marketing by
the appropriate governmental agency for the country in which the sale is to be
made, and when governmental approval is not required, the first sale in that
country.
1.09 "INDEX" shall mean the United States City Average All Urban Consumer Price
Index (all items) published by the United States Department of Commerce or, in
the event no longer published by the United States Department of Commerce or its
successor agency, such other equivalent index of inflation at the consumer level
as may then be published and generally recognized by the financial services
industry as a measure of inflation at the consumer level.
1.10 "INITIATION" shall mean, with respect to a clinical trial carried out for
the purpose of securing marketing approval from a governmental regulatory
agency, the administration of a first dose of a Licensed Product to the first
enrolled subject of a clinical trial.
1.11 "LICENSED PATENTS" shall mean the U.S. and foreign patents and patent
application(s) listed in Schedule A, all divisions and continuations of the
listed application, all patents issuing from such application, divisions, and
continuations, and any reissues, reexaminations, or extensions, including
Supplementary Protection Certificates, of all such patents.
1.12 "LICENSED PRODUCTS" shall mean viral vector products, including without
limitation adenovirus (AV) and adeno-associated virus (AAV) viral vector
products, for in vivo human gene therapy use whose manufacture, use, sale, offer
for sale, importation or other transfer or disposal would infringe one or more
claims of the Licensed Patents. Specifically excluded from the Licensed Products
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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are utilization of non-viral vector products, any ex vivo approach based on the
administration of living cells, Factor IX protein produced by or from transgenic
animals, and any license rights to make, use, offer for sale, sell, or import
Factor IX protein.
1.13 "LICENSED TERRITORY" means all countries of the world where any of the
Licensed Patents are pending, issued or otherwise granted.
1.14(a) "NET SALES PRICE" or "NET SALES" shall mean the gross billing price of
any Licensed Product or Licensed Product and Services, as applicable, received
by AVIGEN, its Affiliates, Sublicensees or Distributors for the sale or
distribution of any Licensed Product in the Licensed Territory, less the
following amounts actually paid out by AVIGEN, its Affiliates or Sublicensees or
Distributors or credited against the amounts received by them from the sale or
distribution of Licensed Product to the extent that such amounts are reflected
in the price charged and do not exceed reasonable and customary amounts in the
country in which the sale or distribution occurs:
(i) discounts allowed;
(ii) returns;
(iii) transportation and transportation insurance charges or
allowances;
(iv) custom charges and duties; and
(v) sales, transfer and other excise taxes or other similar
sales-related governmental charges but no franchise or income tax of any kind
whatsoever.
(b) Transfer of a Licensed Product to an Affiliate, Sublicensee or
Distributor for sale by the Affiliate, Sublicensee or Distributor shall not be
considered a sale; in the case of such a transfer the NET SALES PRICE shall be
based on the gross billing price of the Licensed Product by the Affiliate or
Sublicensee or Distributor as invoiced to its ultimate arms-length customer. In
the event that a transfer of a Licensed Product from AVIGEN to any of its
Affiliates, Sublicensees or Distributors can be characterized as a sale or, in
other similar situations where the sale is made in other than an arm's-length
transaction, the value of the NET SALES attributed to such transactions shall be
based on the Fair Market Value of the Licensed Products or Licensed Products and
Services.
(c) In addition to a bona fide sale to a bona fide customer (not to be
construed as including AVIGEN or its Affiliate or Sublicensee or Distributor),
every commercial use or disposition of any Licensed Product shall be considered
a sale of such Licensed Product at the Net Sales Price then payable in an arm's
length transaction, except for the following uses or dispositions:
(i) in assuring product testing or control; or
(ii) for reasonable, limited promotional distribution to
physicians; or
(iii) for distribution to researchers for the sole purpose of
industry research by or on behalf of AVIGEN or any of its Affiliates,
Sublicensees or Distributors; or
(iv) in obtaining regulatory approvals; or
(v) required to be provided to a regulatory agency or a court of
law.
1.15 "SERVICE" shall mean any process, procedure or treatment that is
used, sold, disposed of, transferred or otherwise rendered by AVIGEN, its
Affiliates, its Sublicensees or Distributors, in such a way that a license would
be required under the Licensed Patents for such use or sale or offer for sale or
importation or other disposal or transfer of such process, procedure or
treatment, in the absence of a license to the Licensed Products under this
Agreement.
1.16 "SUBLICENSEE" means any entity to whom AVIGEN grants a sublicense
pursuant to Section 3.01 of this Agreement.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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2. GRANT OF RIGHTS
2.01 License Grant: BTG hereby grants and AVIGEN accepts, subject to the terms
and conditions of this Agreement, a non-exclusive license to make, use, sell,
offer for sale or import Licensed Products under the Licensed Patents, with a
right to grant sublicenses only as provided in Article 3.
2.02 Nonassertion of Related BTG Patent Rights: BTG agrees that with respect to
any patents or pending patent applications that are not Licensed Patents and
that relate to the Factor IX gene or protein, which on the Effective Date BTG
owns or under which it has the right to grant licenses of the scope of the
licensed granted in this Agreement, BTG will not assert against AVIGEN, its
Affiliates, Sublicensees or Distributors any claims for infringement based on
the manufacture, use, sale, offer for sale or importation of any Licensed
Product for which a royalty has been paid in accordance with the provisions of
Article 5.
2.03 Pre-existing License Agreements: The license grant is subject to the
following pre-existing rights granted to third parties:
(i) a non-exclusive license to Pharmaceutical Proteins Ltd., in all fields of
application, with no right to sublicense without BTG's consent;
(ii) non-exclusive licenses with Genetic Therapy Inc., now assigned to Genetics
Institute, Inc., in the fields of human gene therapy utilizing retro viral
vector constructs only and human gene therapy utilizing viral vector constructs
other than retro viral vector constructs, now without rights to sublicense;
(iii) a non-exclusive license to Transkaryotic Therapies Inc. in the field of
human gene therapy excluding any product, process or treatment based on virally
induced cell transformation; and
(iv) a license to Genetics Institute, Inc. in the field of human recombinant
Factor IX protein produced from cell culture.
2.04 Termination of License: The non-exclusive license granted herein shall
terminate upon termination of this Agreement in accordance with Article 13.
3. SUBLICENSING
3.01 Sublicense Right: AVIGEN may grant sublicenses under its rights in Section
2.01, provided that such sublicenses shall be at least as favorable to BTG as
the present Agreement and provided that each Sublicensee is bound under a
written agreement with terms and conditions consistent with and no less
restrictive than those applicable to AVIGEN under this Agreement.
3.02 Binding Effect: AVIGEN agrees that any sublicenses granted by it shall
provide that the obligations to BTG under this Agreement shall be binding,
commensurate with the scope of the sublicense, upon the Sublicensee. AVIGEN
further agrees to attach copies of this Agreement to all sublicense Agreements.
AVIGEN shall be responsible for the operations of any Sublicensee relevant to
this Agreement as if such operations were carried out by AVIGEN itself,
including, without limitation, the payment of royalties or other payments
hereunder.
3.03 Termination Provision: Any sublicenses granted by AVIGEN under Section 3.01
shall provide for the termination of the sublicense, or the conversion to a
license directly between such Sublicensees and BTG, at the option of BTG upon
termination of this Agreement under Article 13.
3.04 Copy of Sublicense Agreements: AVIGEN agrees to forward to BTG a copy of
each fully executed sublicense agreement under Section 3.01 within thirty (30)
days of the execution of such
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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agreement provided that AVIGEN may redact from such copy any information that is
not relevant to this Agreement. To the extent permitted by law, BTG agrees to
maintain each such Sublicense Agreement in confidence in accordance with Article
16.
3.05 Bankruptcy Provision: If AVIGEN becomes subject to a Bankruptcy Event, all
payments then or thereafter due and owing to AVIGEN from its Sublicensee shall,
upon notice from BTG to any Sublicensee, become payable directly to BTG for the
account of AVIGEN, provided, however, that BTG shall remit to AVIGEN the amount
by which such payments exceed the amount owed by AVIGEN to BTG.
4. LICENSE FEES AND MILESTONES
4.01 License Grant Fee: Within fifteen (15) days after the Effective Date,
AVIGEN shall pay to BTG a non-refundable, non-creditable license grant fee of
[ * ].
4.02 Stock Warrant: As additional consideration for the license grant in Section
4.01, AVIGEN shall grant to BTG (on behalf of BTG and its Licensor) at the
Effective Date a warrant for [ * ] shares of AVIGEN common stock, $0.001 par
value, with an exercise price of the closing price for such stock on the
business day immediately prior to the Effective Date. Such warrant shall be
exercisable at any time on or after the first anniversary of the Effective Date
and shall have an expiration date on the fifth anniversary of the Effective
Date.
4.03 License Milestones: AVIGEN shall pay to BTG the following non-refundable,
non-creditable development milestone license fees, adjusted for inflation in
accordance with Section 4.04 and payable within thirty (30) days of the
milestone event date, in respect of a Licensed Product:
(a) [ * ] upon first Initiation (or at the Effective Date, if initiated
prior to the Effective Date) of a Phase I clinical trial for a Licensed Product
or upon approval from the U.S. Food and Drug Administration to forego such Phase
I studies;
(b) [ * ] upon first Completion (or at the Effective Date, if completed
prior to the Effective Date) of a Phase I clinical trial for a Licensed Product
or upon approval from the U.S. Food and Drug Administration to forego such Phase
I studies or by March 15, 2001, whichever occurs first;
(c) [ * ] upon first Initiation of a Phase II clinical trial for a
Licensed Product or upon approval from the U.S. Food and Drug Administration to
forego such Phase II studies;
(d) [ * ] upon first Completion of a Phase II clinical trial for a
Licensed Product or upon approval from the U.S. Food and Drug Administration to
forego such Phase II studies;
(e) [ * ] upon first Initiation of a Phase III clinical trial for a
Licensed Product or upon approval from the U.S. Food and Drug Administration to
forego such Phase III studies;
(f) [ * ] upon first Completion of a Phase III clinical trial for a
Licensed Product or upon approval from the U.S. Food and Drug Administration to
forego such Phase III studies;
(g) [ * ] upon first submission of a biological product license
application for a Licensed Product to the U.S. Food and Drug Administration or
to its equivalent governmental agency having jurisdiction over the approval for
commercial use of a Licensed Product outside of the United States, whichever
occurs first;
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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(h) [ * ] upon receipt of a first marketing approval for a Licensed
Product from the U.S. Food and Drug Administration or from its equivalent
governmental agency having jurisdiction over the approval for commercial use of
a Licensed Product outside of the United States, whichever occurs first.
4.04 Annual Maintenance Fee: In the event a First Commercial Sale of a Licensed
Product has not occurred by March 15, 2005, AVIGEN shall within ten (10) days of
such date pay to BTG an annual license maintenance fee payment of [ * ].
Thereafter in subsequent years AVIGEN shall also pay to BTG an annual license
maintenance fee payment of [ * ] within ten (10) days of each anniversary of
March 15, 2005 for which there has been no First Commercial Sale in the prior
twelve month period. If in any calendar year beginning with 2005, AVIGEN is
required to make any milestone payment to BTG in accordance with Section 4.03,
then the annual license maintenance fee due and paid in that calendar year shall
be credited against the amount due as the milestone payment.
4.05 Inflation Indexing: All payments made under this Article 4 shall be
adjusted for inflation in accordance with the following formula: Payments shall
be increased, with effect from the Effective Date, by an amount equal to the
product of (i) the amount payable, and (ii) the percentile increase, expressed
as a decimal fraction, in the last Index published on or before the Effective
Date and the last Index published on or before the date on which the relevant
payment becomes due and owing to BTG. In the event of a decrease in the Index,
the sums payable to BTG shall not be adjusted and shall be paid in full without
reference to the Index.
4.06 Regulatory Notices: Within ten (10) days after receipt, AVIGEN shall
forward to BTG copies of regulatory correspondence relevant to the (i)
Initiation and Completion event milestones and (ii) the biological product
licensing application submission and approval milestones specified in this
Article 4 and, further, copies of correspondence from a regulatory agency that
grants approval for marketing or other commercial use of a Licensed Product in
any country in the Licensed Territory. If such correspondence is not timely
received by AVIGEN but AVIGEN learns otherwise of the anticipated receipt of
such correspondence, then AVIGEN shall promptly advise BTG in writing of such
anticipated receipt. Such correspondence shall be subject to the confidentiality
and limited use obligations of Article 16.
5. ROYALTIES and ANNUAL MINIMUM ROYALTIES
5.01 Royalty: AVIGEN shall pay to BTG a running royalty of [ * ] of Net Sales of
Licensed Products and, if Services are provided, of Licensed Products and
Services by AVIGEN, its Affiliates and its Sublicensees or Distributors.
5.02 Annual Minimum Royalties: AVIGEN shall pay BTG an annual minimum royalty
payment for each calendar year in which royalties are due under this Agreement,
payable in advance in equal quarterly installments on the first day of each
quarter, i.e., January 1, April 1, July 1 and October 1 of each calendar year,
beginning with the calendar year of the First Commercial Sale as follows:
(a) [ * ] in the calendar year (hereinafter the First Calendar Year) for
which there is a First Commercial Sale. Payment of the quarterly installment due
in the quarter during which the First Commercial Sale occurs shall be paid
within thirty (30) days of the date of First Commercial Sale. Payments for
subsequent quarters, if any, shall be made on the first day of each subsequent
quarter in the first calendar year. In the event the First Commercial Sale
occurs in other than the first quarter of the first calendar year, AVIGEN is not
obligated to make payment of quarterly installments for quarters prior to the
quarter during which the First Commercial Sale occurred.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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(b) [ * ] in the calendar year (hereinafter the Second Calendar Year) of
the first anniversary of the First Commercial Sale.
(c) [ * ] in the calendar years (hereinafter the Third Calendar Year,
Fourth Calendar Year and subsequent calendar years) of the second, third and
subsequent anniversaries of the First Commercial Sale.
The annual minimum royalty paid for a given calendar year shall be credited
against running royalties payable to BTG during that calendar year. There will
be no carryover credit allowed in subsequent calendar years for any unused
portion of annual minimum royalty paid in a previous calendar year that was not
used to offset running royalties payable in that same previous calendar year.
5.03 Inflation Indexing: All annual minimum royalty payments made under this
Article 5 shall be adjusted for inflation in accordance with the following
formula: Payments shall be increased, with effect from the Effective Date, by an
amount equal to the product of (i) the amount payable, and (ii) the percentile
increase, expressed as a decimal fraction, in the last Index published on or
before the Effective Date and the last Index published on or before the date on
which the relevant payment becomes due and owing to BTG. In the event of a
decrease in the Index, the sums payable to BTG shall not be adjusted and shall
be paid in full without reference to the Index.
5.04 Deferred Royalty Payments I: AVIGEN may, at its option, defer payment of
[ * ] of earned royalties due to BTG that exceed the annual minimum royalty
payment for the First Calendar Year and Second Calendar Year and such deferment
shall be no more than [ * ] after the payment was due to be paid to BTG. Such
deferred payment will be subject to adjustment for inflation, the inflation
adjustment being calculated using the formula defined in Section 6.03 but being
effective from date the deferred royalty payment first became due. The
applicable annual minimum royalties specified for the First and Second Calendar
Years in Section 5.02 are unaffected by the deferred royalty payments allowable
under this Section 5.04. Furthermore, the annual minimum royalty for the
calendar year in which payment of the deferred royalty amount is actually made
to BTG shall not be used as a credit for such deferred royalties. Such deferred
royalty amounts shall likewise not be taken into account, as a credit or
otherwise, in the calculation of running royalties that are earned and due to be
paid to BTG in any year subsequent to the year in which the deferred royalty
amount was generated.
5.05 Deferred Royalty Payments II: AVIGEN may, at its option, defer payment of a
second [ * ] of earned royalties due to BTG for the First Calendar Year, Second
Calendar Year, Third Calendar Year and Fourth Calendar Year and such deferment
shall be no more than [ * ] after the payment was due to be paid to BTG. Such
deferred payment will be subject to adjustment for inflation, the inflation
adjustment being calculated using the formula defined in Section 6.03 but being
effective from date the deferred royalty payment first became due. The
applicable annual minimum royalties specified for the First through Fourth
Calendar Years in Section 5.02 are unaffected by the deferred royalty payments
allowable under this Section 5.05. Furthermore, the annual minimum royalty for
the calendar year in which payment of the deferred royalty amount is actually
made to BTG shall not be used as a credit for such deferred royalties. Such
deferred royalty amounts shall likewise not be taken into account, as a credit
or otherwise, in the calculation of running royalties that are earned and due to
be paid to BTG in any year subsequent to the year in which the deferred royalty
amount was generated.
5.06 Claims in Licensed Patents: A claim of a patent licensed under this
Agreement shall cease to fall within the Licensed Patents for the purpose of
computing the running royalty payments in any given country on the earliest of
the dates that (i) the patent expires or irrevocably lapses, without the patent
having been extended or restored or being the basis for supplemental protection
directed to the
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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Licensed Product, or (ii) the claim has been held to be invalid or unenforceable
by an unappealed or unappealable decision of a court of competent jurisdiction.
5.07 No Multiple Royalties: No multiple royalties shall be payable because any
Licensed Products or Licensed Products and Services are covered by more than one
of the Licensed Patents.
5.08 No Non-monetary Consideration: Without the prior written consent of BTG,
AVIGEN (including its Affiliates and Sublicensees and Distributors) shall not
solicit or accept any consideration for the sale of Licensed Products or
Licensed Products and Services other than as will be accurately reflected in Net
Sales.
6. ROYALTY REPORTS AND PAYMENTS
6.01 Royalty Reports: With each royalty payment, AVIGEN shall deliver to BTG a
full and accurate accounting in a statement duly certified to be correct by a
senior officer of AVIGEN having primary responsibility for Licensee's financial
and accounting matters, which statement shall include at least the following
information:
(a) Quantity of Licensed Product sold, transferred for consideration, or
otherwise commercially disposed of in each country of the Licensed Territory by
AVIGEN, its Affiliates, Sublicensees and Distributors and the quantity of
Licensed Product manufactured;
(b) Total receipts for Licensed Product in each country of the Licensed
Territory;
(c) Quantities of each Licensed Product used by AVIGEN and its
Affiliates or Sublicensees or Distributors unless such Licensed Product is used
for the purposes excluded by Section 1.14(c);
(d) Reductions from gross sales as permitted in Section 1.14(a);
(e) Calculations showing the determination of royalty amounts due and
being paid; and
(f) Deferred royalty payments being deferred and/or paid under the
provisions of Sections 5.04-5.05, with calculations showing how such amounts
were computed.
6.02 Royalty Payments Other Than Annual Minimum Royalty Payments: In each year
the amount of royalty and other payments due shall be calculated semiannually as
of June 30 and December 31 and shall be paid semiannually within the sixty (60)
days next following such date. Every such payment shall be supported by the
accounting statement prescribed in Section 6.01 and shall be made in United
States currency by wire transfer as specified in Section 6.03.
6.03 Payments: All payments shall be made in United States dollars by means of
electronic transfer to the bank nominated by BTG from time to time. Whenever
conversion from any foreign currency shall be required for the purpose of
calculating royalty, such conversion shall be at the rate of exchange published
in the Wall Street Journal (or, if the Wall Street Journal is not then
published, such other periodical of general circulation in the United States of
America as the parties may agree) on the date immediately preceding the
applicable payment date.
6.04 No Deductions: When making any payment required pursuant to the terms of
this Agreement, AVIGEN shall make such payments without deduction, other than
such amount as AVIGEN is required to deduct or withhold by law or as specified
in Section 1.14(a). In regard to any deduction required by law,
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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AVIGEN shall use all reasonable endeavors to assist BTG to claim recovery or
exemption under any double taxation or similar agreement, and AVIGEN shall
provide BTG with evidence of payment of all sums pursuant hereto. For the
avoidance of doubt, AVIGEN is not responsible for BTG corporate income tax
associated with payments made to BTG pursuant to this Agreement.
6.05 Foreign Taxes: Any tax required to be withheld by AVIGEN under the laws of
any foreign country for the account of BTG, shall be promptly paid by AVIGEN for
and on behalf of BTG to the appropriate governmental authority, and AVIGEN shall
use its best efforts to furnish BTG with proof of payment of such tax. Any such
tax actually paid on BTG's behalf shall be deducted from royalty payments due
BTG.
6.06 Currency Conversion or Transfer Limitations: If the transfer of or the
conversion into United States dollars of any payment required under this
Agreement in any such instance is not lawful or possible, the payment of such
part of the royalties as is necessary shall be made by the deposit thereof, in
the currency of the country where the sale was made on which the royalty was
based, to the credit and account of BTG or its nominee in any commercial bank or
trust company located in that country, prompt notice of which shall be given to
BTG.
6.07 Late Payments: The royalty payments and any other payments due under the
Agreement shall, if overdue, bear interest until payment, accruing from day to
day and compounded annually on 31 December, at a rate per annum equal to four
percent (4%) above the Prime Rate published in the Wall Street Journal (or, if
the Wall Street Journal is not then published, such other financial periodical
of general circulation in the United States of America as the parties may
reasonably agree), but not to exceed the maximum rate permitted by law,
effective from the day such payment becomes due and owing to BTG until payment
of such amount is in fact made to BTG. The payments of such interest shall not
preclude BTG from exercising any other rights it may have as a consequence of
the lateness of any royalty payment.
6.08 Confidentiality: All reports required by this Article 6 shall be subject to
the confidentiality and limited use obligations of Article 16.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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7. RECORD KEEPING
7.01 Financial Records: AVIGEN agrees to keep accurate and correct records of
Licensed Products made, used, sold or otherwise transferred or disposed of under
this Agreement appropriate to determine the amount of royalties and the
timeliness of other payments due BTG. Such records shall be retained for at
least five (5) years following a given reporting period.
7.02 Report Verification: AVIGEN shall, upon reasonable notice and during normal
business hours, permit an authorized representative appointed by BTG, or any
authorized independent certified public accountant agreed by the parties and
whose services are paid for jointly by BTG and by AVIGEN, access to the premises
of AVIGEN and to the accounts, records and relevant documentation of AVIGEN, and
shall provide such information and explanations as the representative shall
reasonably require, all in order to verify the statements provided by AVIGEN
pursuant to Article 6 of this Agreement and to satisfy BTG that there has been
compliance with the royalty and other payment obligations undertaken by AVIGEN
pursuant to this Agreement. BTG shall be entitled, in each calendar year, to
have a representative conduct one verification (which may involve multiple
visits). The access to and inspection of AVIGEN's books shall be limited to that
which is reasonably required to verify the royalty and other payments required
to be paid pursuant to this Agreement; the BTG representative shall be permitted
to take copies and extracts of relevant documents. Any and all AVIGEN
information and documents shall be subject to the confidentiality and limited
use provisions of Article 16. BTG's right of verification hereof shall terminate
two years after termination of this Agreement, for whatever reason.
7.03 Deficiencies in Payments: If a verification or other audit discloses an
underpayment or underreporting or late payment to BTG of any royalties or other
payments due to BTG, AVIGEN shall pay the unreported or underpaid royalties
and/or any late charges as required by Section 6.07 of this Agreement, within
thirty (30) days of being notified of the same. If the verification discloses an
underpayment to BTG of more than five percent (5%) of the amount properly due in
any calendar year pursuant to this Agreement, AVIGEN shall promptly reimburse
BTG's cost of undertaking the verification provided for in this Article 7.
7.04 Disputed Underpayments: If there is a disagreement between BTG and AVIGEN
as to the amount of an underpayment which cannot be resolved in accordance with
Section 16.08, then the Parties shall agree upon the hiring of an independent
certified public accountant, at a cost to be shared equally by the Parties, to
review the verification or audit and provide a final determination of the amount
of underpayment in dispute.
7.05 Third Party Audits: In the event AVIGEN is required to carry out an
independent audit of its sales of Licensed Products on behalf of a third party
patent licensor, AVIGEN agrees to supply BTG with a copy of the report prepared
on the basis of such an audit. Such audit reports shall be subject to the
confidentiality and limited use provisions of Article 16, and AVIGEN may redact
any information not relevant to sales of Licensed Products that may be contained
in such reports.
8. PROGRESS REPORTS
8.01 Business Plan: Within ninety (90) days after the Effective Date, the
Licensee shall provide BTG with a business plan for the Licensed Territory-wide
development and marketing of Licensed Products. Such business plan should
include discussion of the regulatory approval process and estimated timelines
for Licensed Products, manufacturing plans, and commercialization plans for
marketing the Licensed Products in the United States and other countries within
the Licensed Territory.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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8.02 Progress Reports: AVIGEN shall provide BTG with twice yearly written
progress reports on the Licensed Products, within sixty (60) days after June 30
and December 31 of each calendar year. for the immediately prior six month
period. These progress reports shall include, but not be limited to: status of
applications for regulatory approvals and of its efforts to obtain regulatory
approvals for the Licensed Product, progress on research and development,
manufacturing plans and progress, sublicensing activities and marketing efforts,
as well as plans for the present calendar year. In addition, the progress
reports should inform BTG of the sales (and of other commercially relevant
transfers or disposals of Licensed Product) during the preceding six month
period and provide a good faith estimate of anticipated annual sales projections
for the present calendar year, on a country-by-country basis. At BTG's request,
the reports shall be discussed with BTG in annual meetings to be held at a
mutually agreed time and place.
8.03 First Commercial Sale: AVIGEN shall promptly, no more than thirty (30) days
after each occurrence, advise BTG in writing of the date of a First Commercial
Sale of a Licensed Product in each country within the Licensed Territory.
8.04 Confidentiality: All plans and reports required by this Article 8 shall be
subject to the confidentiality and limited use obligations of Article 16.
9. PERFORMANCE
9.01 AVIGEN Best Efforts: AVIGEN shall use commercially reasonable endeavors to
develop Licensed Products for commercialization and shall seek to achieve in a
timely manner the development milestones set forth in Article 4. AVIGEN shall
obtain all licenses, registrations and other approvals necessary to enable, as
soon as commercially practicable, the marketing and use of Licensed Products in
the United States and in other countries within the Licensed Territory. AVIGEN
shall use all reasonable commercial efforts to achieve a First Commercial Sale
in the United States before March 15, 2005 and to meet the market demand in the
United States for Licensed Products.
9.02 AVIGEN Commercialization Responsibilities: AVIGEN shall be solely
responsible for compliance with, and shall comply with, all governing laws and
regulations relating to clinical evaluation, use, commercial manufacture, sale
export and import of Licensed Product and for all costs and expenses related to
the foregoing.
10. PATENTS: MARKING, EXTENSIONS, INFRINGEMENT AND ENFORCEMENT
10.01 Patent Marking: AVIGEN agrees to mark the Licensed Products or their
packaging made, used, sold, imported or otherwise disposed of or transferred in
the United States with the applicable U.S. patent. All Licensed Products
manufactured in, shipped to, used or sold in other countries shall be marked in
such a manner as to preserve BTG patent rights in such countries. The Licensee
shall provide all reasonable means for allowing BTG, from time to time, to
verify that packaging for Licensed Product is being properly marked.
10.02 Patent Term Extension: AVIGEN shall cooperate fully with BTG in pursuing
and securing available extensions or restoration of patent term for the Licensed
Patents or other protection under regulations, directives and laws governing the
development of and protection of rights relating to drug products, including
Supplementary Protection Certificates. Any patent extension or restoration of
patent term or other supplemental product protection which is secured by BTG
shall be deemed the term of the applicable patent within the Licensed Patents.
This Agreement and the obligations respecting the
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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Licensed Patents shall survive until the expiration of such term(s), and AVIGEN
shall pay royalties and all other required payments applicable to Licensed
Patents until the expiration of such term(s).
10.03 AVIGEN Patent Term Option: The Parties recognize, at the Effective Date,
that commercial considerations may make it more advantageous for AVIGEN to seek
patent term extension or supplemental product protection via a Supplementary
Protection Certificate for a patent owned by or licensed to AVIGEN, that is not
a Licensed Patent. BTG agrees to give AVIGEN the option to elect, by written
notice to BTG within thirty (30) days after a biological product license
application (or its equivalent) is filed in any country within the Licensed
Territory, to seek patent term extension or supplementary product protection for
a patent other than a Licensed Patent.
10.04 Exercise of AVIGEN Patent Term Option: In consideration for BTG granting
to AVIGEN the option in Section 10.03 and for BTG's forgoing its right to
require patent term extension or supplementary product protection for a Licensed
Patent under Section 10.02, AVIGEN agrees to pay to BTG payments that are equal
to the annual royalty minimums and running royalties specified in Article 5
during the period for which the Licensed Patents would have otherwise been
extended or made the basis of Supplementary Protection Certificate(s). Such
payments shall be made by AVIGEN to BTG in the same manner and at times as would
have been applicable to the annual minimum payments and running royalties due
for the Licensed Patents had the latter been extended or made the basis of
Supplementary Protection Certificate(s).
10.05 Third Party Patent Term Extension: In the event BTG elects to have a third
party licensee of BTG under the Licensed Patents obtain extension of the
Licensed Patent in the United States, where such third party's licensed product
is first marketed prior to the First Commercial Sale of a Licensed Product under
this Agreement, then such extension of the Licensed Patent shall release AVIGEN
from its obligations under Section 10.02 to extend the U.S. patent that is a
Licensed Patent and from its obligation under Section 10.04, with respect to the
U.S. patent. In a similar manner, if BTG elects to have a third party licensee
seek supplementary patent protection via a Supplementary Protection Certificate
under a Licensed Patent for the third party's licensed product, then such
supplementary patent protection applicable to the Licensed Patent shall release
AVIGEN from its obligations under Section 10.02 to extend the same patent that
is a Licensed Patent and from its obligation under Section 10.04, with respect
to such patent.
10.06 Notice of Infringement: BTG and AVIGEN agree to notify each other promptly
of each infringement or possible infringement of the Licensed Patents by any
third party in the field of viral vector products for in vivo human gene therapy
of which either Party becomes aware. AVIGEN shall provide BTG with any evidence
of such possible infringement in AVIGEN's possession or readily available to
AVIGEN, its Affiliates or Sublicensees or Distributors.
10.07 BTG Response to Infringement: BTG will take appropriate steps, in BTG's
sole judgment, to protect its Licensed Patents from infringement in the field of
viral vector products for in vivo human gene therapy and to bring suit in its
own name when, in its sole judgment, such action may be reasonably necessary,
proper and justified. BTG shall have the sole and exclusive right to determine
all matters relating to the infringement, enforcement, validity and defense of
the Licensed Patents. BTG shall be under no obligation to prosecute any claim of
infringement in respect of the Licensed Patents or, furthermore, to defend any
claim of infringement asserted against AVIGEN, its Affiliates or Sublicensees or
Distributors in respect of intellectual property rights held by any third party.
AVIGEN shall inform BTG without delay if any legal proceeding is initiated
against AVIGEN, or its Affiliates or Sublicensees or Distributors and such
proceeding challenges or otherwise may adversely affect the validity and
enforceability of the Licensed Patents.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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10.08 AVIGEN Infringement Relief: In the event AVIGEN shall bring to the
attention of BTG any evidence of unlicensed infringement of the Licensed Patents
by a third party in the field of viral vector products for in vivo human gene
therapy in a country within the Licensed Territory and BTG does not, within six
months from receipt of such evidence, (i) secure cessation of the infringement
in that country or (ii) enter suit against the infringing third party, then
AVIGEN may withhold payment of royalties due to BTG for the country where the
infringement is occurring; such royalty withholding may start from the end of
the six month period and continue until the unlicensed infringement is ceased.
After the date of cessation of the unlicensed infringement, AVIGEN shall
immediately resume payment of royalties accruing to and due BTG under this
Agreement from that date forward.
10.09 BTG Third Party Licenses: BTG shall act with diligence in its relations
with its third party licensees under the Licensed Patents and take appropriate
steps, as may be necessary in BTG's sole judgment, to monitor the contractual
provisions applicable to such third party licenses.
11. NEGATION OF REPRESENTATIONS AND WARRANTIES; LIMITATION OF LIABILITY;
INDEMNIFICATION
11.01 BTG represents and warrants that it has all necessary authority and power
to enter into this Agreement and to grant the license rights under the Licensed
Patents. Other than that, no representation, condition or warranty whatsoever is
made or given by or on behalf of BTG. BTG HEREBY EXPRESSLY EXCLUDES ANY AND ALL
IMPLIED REPRESENTATIONS, CONDITIONS AND WARRANTIES, INCLUDING, WITHOUT
LIMITATION, THE FOLLOWING:
11.02 BTG DOES NOT REPRESENT OR WARRANT THE VALIDITY OF THE LICENSED PATENT
RIGHTS AND MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH REGARD TO THE
SCOPE OF THE LICENSED PATENTS, OR THAT THE LICENSED PATENTS MAY BE EXPLOITED
WITHOUT INFRINGING OTHER PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS OF THIRD
PARTIES AND HEREBY DISCLAIMS THE SAME.
11.03 BTG MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR ANY IMPLIED WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY OF THE LICENSED PATENTS or
LICENSED PRODUCTS AND HEREBY DISCLAIMS THE SAME.
11.04 BTG does not represent or warrant that it has any obligation to commence
or prosecute legal actions against third parties infringing the Licensed
Patents.
11.05 BTG SHALL BE UNDER NO LIABILITY WHATSOEVER TO AVIGEN, WHETHER IN
NEGLIGENCE OR OTHERWISE, FOR ANY EXPENSE, LOSS, DAMAGE OR INJURY OF ANY KIND,
INCLUDING LOSS OF PROFIT OR CONSEQUENTIAL DAMAGE, SUSTAINED BY AVIGEN OR ANY
THIRD PARTY AND ARISING OR INCURRED IN CONNECTION WITH THE MANUFACTURE, USE,
SALE, OFFER FOR SALE, IMPORTATION OR OTHER TRANSFER OR DISPOSAL OF LICENSED
PRODUCT.
11.06 AVIGEN shall defend, indemnify and hold BTG and its officers, employees,
agents and consultants, Licensors of the Licensed Patents, and its affiliated
companies BTG plc and BTG International Inc. (collectively, the "Indemnitees")
harmless from and against any and all claims, suits, losses, demands, actions,
liabilities, damages, costs and expenses (collectively, the "Liabilities")
incurred by any one or more of the Indemnitees, resulting from or arising in any
way from AVIGEN's
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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breach of this Agreement or any acts or omissions of AVIGEN in connection with
this Agreement, including without limitation any Liabilities arising from the
defense of any action, including attorneys' fees and expenses, in connection
with the manufacture, use, sale, offer for sale, importation, export or other
disposal or transfer of Licensed Product by or on behalf of AVIGEN, its
Affiliates or Sublicensees or Distributors, and the scope of such obligation to
defend, indemnify and hold harmless includes, without limitation, (i) any
damage, loss or liability with respect to death or injury to any person or
damage to property arising from or out of the possession, use or operation of
the Licensed Patents or any Licensed Product, and (ii) any fines or other
penalties of any nature imposed by any governmental body of competent
jurisdiction and arising from or related in any way to the manufacture, use,
sale, offer for sale, importation, export or other disposal or transfer of
Licensed Products.
11.07 Any Indemnitee which intends to claim indemnification under this Article
11 shall promptly notify AVIGEN in writing of any claim or other matter in
respect of which the Indemnitee intend to claim such indemnification; provided,
however, the failure to provide such notice within a reasonable period of time
shall not relieve AVIGEN of any of its obligations hereunder except to the
extent AVIGEN is prejudiced by such failure. The Indemnitee shall permit AVIGEN,
at its discretion, to settle any such action, claim or other matter. The
Indemnitee agrees to the complete control of such defense or settlement by
AVIGEN; provided however, such settlement does not adversely affect the
Indemnitee's rights hereunder or impose any obligations on the Indemnitee in
addition to those set forth herein in order for it to exercise such rights. No
such action, claim or other matter shall be settled without the prior written
consent of AVIGEN, and AVIGEN shall not be responsible for any attorneys' fees
or other costs incurred other than as provided herein. The Indemnitee shall have
the right, but not the obligation, to be represented by counsel of its own
selection and at its own expense.
12. INSURANCE
12.01 AVIGEN covenants that it shall promptly take out and maintain in force,
during the entire term of this Agreement and for a reasonable period thereafter,
and shall obligate its Sublicensees, commensurate with their sublicense rights,
to take out and maintain in force, during the entire term of the applicable
sub-license, commercial general liability insurance covering the manufacture,
use, sale, offer for sale, importation, transfer or other disposal of Licensed
Product, in coverage amounts reasonably acceptable to BTG and customarily
available to companies in the same or similar line of business as AVIGEN and in
coverage amounts and terms no less favorable to BTG than to other patent
licensors from whom AVIGEN has acquired patent rights with similar insurance
obligations. Such commercial general liability insurance shall include product
liability coverage for AVIGEN'S indemnification obligations under this
Agreement.
12.02 AVIGEN shall make available to BTG copies of such commercial general
liability insurance policy or policies promptly upon BTG's request. AVIGEN
covenants that AVIGEN shall also ensure that BTG is named as an insured party
under such insurance policy or policies and that BTG's rights are not subrogated
to those of the insurer or insurers, and that such policy or policies shall not
be canceled or amended so as to affect coverage of BTG's risks without the prior
written notice to BTG. AVIGEN shall provide BTG with written notice prior to the
cancellation, non-renewal or material change in such insurance; if AVIGEN does
not obtain replacement insurance providing comparable coverage in a timely
manner, BTG shall have the right to terminate this Agreement upon reasonable
notice to AVIGEN.
12.03 Any Sublicensee shall maintain insurance in favor of BTG under similar
terms as set forth above, commensurate with its sublicense rights.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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13. TERM AND TERMINATION
13.01 Term: This Agreement is effective upon the EFFECTIVE DATE, when signed by
the parties, and shall extend to the expiration of the last to expire of the
Licensed Patents unless sooner terminated as provided in this Article 13 or
unless extended by AVIGEN's election to exercise its rights relating to patent
term extension under Article 10.
13.02 AVIGEN Termination: AVIGEN may, at any time, terminate this Agreement, by
giving not less than three (3) months' prior written notice to that effect and
upon payment to BTG of an amount equal to the accrued royalties, if any, and any
other amounts required to have been paid by AVIGEN to BTG on or before the
effective date of such termination.
13.03 BTG Termination: BTG may, in its sole discretion, terminate this Agreement
by fifteen (15) days' advance written notice to AVIGEN, upon the happening of
any of the following events:
(i) if any royalties or other sums payable to BTG pursuant to this
Agreement remain unpaid for sixty (60) days after BTG's written
demand that AVIGEN pay such amounts to BTG; or
(ii) if AVIGEN becomes subject to a Bankruptcy Event; or
(iii) if control of AVIGEN shall be acquired by any entity, or entity
or person(s) not having control of AVIGEN at the Effective Date
and such change in control materially adversely affects the
development and marketing of Licensed Product as contemplated
under this Agreement or materially adversely affects BTG's
rights or legal interests under this Agreement or the economic
benefits to BTG under this Agreement. For the purposes hereof,
"control" shall mean the power to direct or cause the direction
of the management and policies of an entity, whether through the
ownership of voting securities, by contract or otherwise; or
(iv) if there is no First Commercial Sale by AVIGEN, its Affiliates
or its Sublicensees or Distributors before March 15, 2005 and
AVIGEN fails to make timely payment of the annual license
maintenance fee specified in Section 4.04; or
(v) if AVIGEN ceases to sell Licensed Product (except for a
temporary sales moratorium having a reasonable technical or
scientific basis) in the Licensed Territory for a continuous
period of twelve (12) months after the Licensed Product is first
made commercially available; or
(vi) if AVIGEN is in breach or default of any other material term of
this Agreement and such breach or default remains unremedied
after sixty (60) days has elapsed from the date of written
notice to AVIGEN specifying the breach and demanding remedy
thereof, or if such breach or default is not capable of remedy
within such sixty (60) day period, then if AVIGEN has not
commenced good faith substantial efforts to cure such breach or
default during the sixty (60) day period.
13.04 Notice of Bankruptcy Event: In the event that AVIGEN becomes subject to a
Bankruptcy Event, AVIGEN shall immediately notify BTG in writing.
13.05 Termination Report and Payments Due: Within ninety (90) days of
termination of this Agreement under this Article 13 or expiration under Section
13.01, a final royalty report in accordance with Section 6.01 shall be submitted
to BTG by AVIGEN. Any royalty and other payments, including outstanding deferred
royalty payments, due to BTG shall become immediately due and payable upon
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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termination or expiration. If terminated under this Article 13, BTG may elect,
at its sole discretion, to convert Sublicensee sublicenses to direct licenses
with the Sublicensees pursuant to Section 3.03.
14. MOST FAVORED PARTY
14.01 Offer of Favorable Terms: If, after the Effective Date and during the term
of this Agreement, BTG enters into an agreement granting a license under the
Licensed Patents to products for in vivo human gene therapy to a third party and
such license (i) contains royalty rates, annual minimum royalty payments, cash
signing fees (not including stock warrants or equity rights) or milestone
payments, or BTG in fact collects such payments, which, calculated on an
equivalent basis in respect to the Licensed Patents, are lower than those
provided in Article 4 (except Section 4.02) and Article 5 of this Agreement or
(ii) contains or BTG in fact collects royalties under patent term extension
provisions that are more favorable to the third party licensee than those
provided in Article 10 of this Agreement, then BTG will promptly provide notice
to AVIGEN of such third party license and offer to AVIGEN the lower royalty
rates, annual minimum royalty payments, signing fees, milestone payments or more
favorable patent term extension provisions of the third party license, effective
as of the date (or dates) from which they became effective in respect to the
third party license.
14.02 Acceptance of Favorable Terms: AVIGEN's opportunity to avail itself of
such more favorable license terms shall only be effective, however, if AVIGEN
advises BTG in writing, within sixty (60) days of the notice to AVIGEN, that it
accepts such terms of the third party license which are more favorable to AVIGEN
than corresponding terms of this Agreement and which are brought to the
attention of AVIGEN in the notice. AVIGEN shall be entitled to have the royalty
rate or other more favorable financial terms of the Noticed Third Party License
substituted in this Agreement, in respect of events occurring from the date (or
dates) from which they became effective in respect to the third party license.
15. ASSIGNMENTS; MERGERS
15.01 Assignability: This Agreement shall not be assigned by AVIGEN except a)
with the prior written consent of BTG; or b) as part of a sale or transfer of
substantially the entire business of AVIGEN provided that such assignee or
transferee has agreed in writing to be bound by the terms and provisions of this
Agreement and is so bound by operation of law and provided, further, that BTG
does not elect to terminate this Agreement in accordance with Section
13.03(iii). AVIGEN shall notify BTG in writing of any proposed assignment by
AVIGEN of this Agreement pursuant to this Section 15.01(b) at least thirty days
in advance of such proposed assignment. This Agreement shall be binding upon and
inure to the benefit of the successors, permitted assignees and personal
representatives of the Parties.
15.02 Stock Warrant for Merger or Acquisition: In the event AVIGEN is to be
merged with or acquired by a third party, then prior to such merger or
acquisition, [ * ], having an exercise price of the closing price for such stock
on the business day immediately prior to the Effective Date. Such warrant shall
be exercisable by BTG at any time after grant of the warrant and shall have an
expiration date on the fifth anniversary of the grant date. A copy of the form
Warrant Agreement is attached as an Exhibit to this Agreement.
16. CONFIDENTIALITY
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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16.01 Confidential Information: The Parties anticipate that it will be
necessary, in connection with their obligations under this Agreement, for BTG
and AVIGEN to disclose to each other confidential, proprietary business and
technical information ("Confidential Information") relating to their respective
businesses and technologies. The Confidential Information shall include
information marked "Confidential" or the like disclosed in writing or in other
tangible form, including samples of materials. If disclosed orally, the
Confidential Information shall be summarized in written form within thirty (30)
days by the disclosing Party and a copy marked "Confidential" provided to the
recipient. Past disclosures made under or covered by the Secrecy Agreements
dated July 17, 1997 and December 7, 1999 between AVIGEN and BTG are understood
to be covered by this Article 16 of this Agreement.
16.02 Confidentiality and Limited Use: With respect to all Confidential
Information, both BTG and AVIGEN agree as follows, it being understood that
"recipient" indicates the Party receiving the confidential, proprietary
information from the other "disclosing" Party. During the term of this Agreement
and for a period of five (5) years from the date of expiration or termination of
this Agreement, the recipient shall protect and hold in confidence the
Confidential Information of the disclosing Party, not disclose or use such
Confidential Information except in accordance with this Agreement or except with
the prior written consent of the disclosing Party, and protect the Confidential
Information with at least the same degree of care that it affords its own
Confidential Information.
16.03 Exceptions: The obligations of Confidentiality and limited use shall not
apply to any of the Confidential Information which
(i) at the time of disclosure is in the public domain by publication or
other documented means or later becomes part of the public domain, through no
act or fault of the recipient in violation of this Agreement; or
(ii) is already known to recipient before receipt from the disclosing
Party, as demonstrated by recipient's pre-existing written records; or
(iii) is received by recipient from a third party having a lawful right
to disclose the same and not in breach of an obligation to the disclosing Party
by virtue of such disclosure; or
(iv) is developed independently by the receiving Party by individuals
having no access to the Confidential Information; or
(v) is required to be disclosed to a third party pursuant to any
applicable law or the order of any court or tribunal of competent jurisdiction,
so long as reasonable prior written notice is given to the disclosing Party in
advance of such disclosure so as to enable the disclosing Party to take
reasonable steps to protect the confidentiality of the Confidential Information.
16.04 Return of Confidential Information: Upon termination of this Agreement and
upon request of the disclosing Party, originals and copies of Confidential
Information in written or other tangible form, including material samples, will
be returned to the disclosing Party by recipient or destroyed by recipient. One
copy of each document may be retained in the custody of recipient's legal
counsel solely to provide a record of what disclosures were made.
16.05 Confidential Status of Agreement: The milestone amounts and royalty terms
of this Agreement shall be deemed to be Confidential Information subject to the
provisions of this Article 16. Both Parties agree, furthermore, that neither
Party will make public disclosures concerning other specific terms of this
Agreement without giving reasonable prior notice to the other.
16. GENERAL PROVISIONS
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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16.01 Notices: Any payment, notice, consent or other communication required or
permitted by this Agreement shall be in writing and shall be deemed given on the
date sent to the receiving Party by hand delivery (personally delivered),
facsimile (receipt verified), overnight courier (receipt verified) or certified
or registered mail, postage prepaid, addressed as follows:
(i) in the case of BTG: Geoffrey C. Porges, Chief Operating Officer;
with a copy to: Senior Vice President, Finance; and
(ii) in the case of AVIGEN: Kenneth G. Chahine, Vice President of
Business Development and Chief Patent Counsel;
at the appropriate address for the Party set forth at above, or at such other
address as such Party may specify from time to time in writing.
16.02 Entire Understanding: This Agreement constitutes the entire understanding
between the Parties relating to the subject matter hereof, and all prior
negotiations, representations, communications, agreements, and understandings
are merged into, extinguished by, and completely expressed by this Agreement.
16.03 Severable Provisions: The provisions of this Agreement are severable, and
in the event that any provision of this Agreement shall be determined to be
invalid or unenforceable under any controlling body of law such determination
shall not in any way affect the validity or enforceability of the remaining
provisions of this Agreement. However, if this results in a material alteration
to the terms and conditions of this Agreement, the Parties will negotiate in
good faith an amendment to the terms and conditions thereof to restore to each
Party the benefits of its bargain to the extent reasonably possible under the
circumstances.
16.04 Amendments: No provision of this Agreement may be amended, waived, or
otherwise modified except by an instrument in writing duly executed by
authorized representatives of the Parties to be bound by such amendment, waiver
or modification. If either Party desires a modification to this Agreement, the
Parties shall, upon reasonable notice of the proposed modification by the Party
desiring the change, confer in good faith to determine the desirability of such
modification. No modification will be effective until a written amendment is
signed by the signatories to this Agreement or their authorized representatives.
16.05 Non-Waiver: Neither Party may waive or release any of its rights or
interests in this Agreement except in writing. The failure of a Party to assert
a right hereunder or to insist upon compliance with any term or condition of
this Agreement shall not constitute a waiver of that right by such Party or
excuse a similar subsequent failure to perform any such term or condition by the
other Party. The waiver by either Party of any breach, by the other Party, of
any of the terms of this Agreement shall not be deemed to be a waiver of any
other breach of the Agreement.
16.06 Cumulative Rights: The rights and remedies provided in this Agreement are
cumulative and not exclusive of any rights or remedies provided by law or in
equity.
16.07 No BTG Endorsement: By entering into this Agreement, BTG does not directly
or indirectly endorse any product or service provided, or to be provided, by
AVIGEN whether directly or indirectly related to this Agreement. AVIGEN shall
not state or imply that this Agreement is an endorsement by BTG or its employees
in any advertising, promotional, or sales literature without the prior written
consent of BTG. AVIGEN shall not otherwise use the name of BTG or its employees
in any advertising, promotional, sales literature or other publicity without the
prior written consent of BTG.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
18
<PAGE> 19
16.08 Good Faith Negotiation: The Parties agree to attempt to settle any and all
claims, disputes or contentions arising under, out of, or in connection with
this Agreement, by good faith negotiations between the Parties.
16.09 Independent Contractors: For the purposes of this Agreement, each Party
shall be, and shall be deemed to be, an independent contractor and not an agent,
partner, joint venturer, or employee of the other Party.
16.10 Force Majeure: Neither Party shall be responsible in any way to the other
Party for failure to perform any of its obligations under this Agreement when
such failure is due to any war, fire, flood, labor trouble, strike, natural
calamity, accident, riot, act of governmental authority, inability or economic
impracticality to comply with requirements imposed by environmental regulations
or orders, Acts of God, or other similar contingencies beyond the reasonable
control of either Party. The Party so affected shall nevertheless use its best
efforts to avoid or remove such cause of non-performance and shall continue
performance hereunder, with the utmost dispatch whenever such causes are
removed.
16.11 Law and Jurisdiction: The construction, validity, performance, and effect
of this Agreement shall be governed by the Laws of the United States of America
and the State of Delaware without regard to any choice or conflict of laws rule
or principles that would result in the application of the domestic substantive
law of any other jurisdiction other than (i) United States federal law, to the
extent applicable and (ii) in regard to any question affecting the construction
or effect of any patent, the law of the jurisdiction under which such patent is
granted. AVIGEN agrees to submit to the non-exclusive jurisdiction of the
Delaware courts or the United States District Courts for the Eastern District of
Pennsylvania.
16.12 Headings: The headings of Articles and Sections of this Agreement are for
convenience only and shall not in any way affect the interpretation of the
Agreement.
16.13 Schedule: The appended Schedule forms an integral part of this Agreement.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
19
<PAGE> 20
IN WITNESS WHEREOF the Parties have caused this Agreement to be executed by
their duly authorized officers.
BTG INTERNATIONAL LTD.
/s/ Geoffrey C. Porges March 3, 2000
- --------------------------------- ---------------------------------
Geoffrey C. Porges, M.B.B.S. Date:
Chief Operating Officer
/s/ [illegible] 3/3/2000
- --------------------------------- ---------------------------------
Name: Date:
Title:
AVIGEN INC.
/s/ John J. Monahan March 3, 2000
- --------------------------------- ---------------------------------
John J. Monahan, Ph.D. Date:
President & Chief Executive Officer
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
20
<PAGE> 21
SCHEDULE A - LICENSED PATENTS
<TABLE>
<CAPTION>
APPLN APPLN PATENT GRANT EXPIRY
TERRITORY NUMBER DATE NUMBER DATE DATE*
<S> <C> <C> <C> <C> <C>
AUSTRALIA 83/17521 02-AUG-83 560686 27-JUL-87 02-AUG-03
AUSTRIA E48015 03-AUG-83 EP0107278 15-NOV-89 02-AUG-03
BELGIUM 83304487.8 03-AUG-83 EP0107278 15-NOV-89 02-AUG-03
CANADA 433806 03-AUG-83 1214125 18-NOV-86 17-NOV-03
EPC** 88116366.1 04-OCT-88*** [PENDING]
FRANCE 83304487.8 03-AUG-83 EP0107278 15-NOV-89 02-AUG-03
GERMANY P3380848 03-AUG-83 EP0107278 15-NOV-89 02-AUG-03
ITALY 89/69173 03-AUG-83 EP0107278 15-NOV-89 02-AUG-03
JAPAN 83/502561 04-APR-84*** 2625412 11-APR-97 03-AUG-03
JAPAN 96/281135 23-OCT-96*** 2764034 27-MAR-98 03-AUG-03
LUXEMBOURG 83304487.8 03-AUG-83 EP0107278 15-NOV-89 02-AUG-03
NETHERLANDS 83304487.8 03-AUG-83 EP0107278 15-NOV-89 02-AUG-03
SWEDEN 83304487.8 03-AUG-83 EP0107278 15-NOV-89 02-AUG-03
SWITZERLAND 83304487.8 03-AUG-83 EP0107278 15-NOV-89 02-AUG-03
UNITED KINGDOM 8320975.9 03-AUG-83 2125409 13-NOV-85 03-AUG-03
USA 07/355900 19-MAY-89**** 4994371 19-FEB-91 19-FEB-08
</TABLE>
*Without patent term extension or Supplementary Protection
Certificate (SPC) protection.
**Designates United Kingdom, Austria, Belgium, France, Germany,
Italy, Luxembourg, Netherlands, Sweden and Switzerland.
***Actual date but deemed to have the date of 03-AUG-83 in the
European Patent Convention and in Japan.
****Actual date but deemed to have the date of 28-OCT-82.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
21
<PAGE> 1
EXHIBIT 10.41
LEASE AGREEMENT
THIS LEASE AGREEMENT is made this 29th day of February , 2000, between
ARE- 1201 HARBOR BAY, LLC, a Delaware limited liability company ("LANDLORD"),
and AVIGEN, INC., a Delaware corporation ("TENANT").
ADDRESS: 1201 Harbor Bay Parkway, Alameda, California
PREMISES: That portion of the Project, containing approximately 45,348
rentable square feet, as determined by Landlord, as shown on
EXHIBIT A.
PROJECT: The real property on which the building in which the Premises are
located, together with all improvements thereon and appurtenances
thereto as described on EXHIBIT B.
<TABLE>
<S> <C>
BASE RENT: $72,556.80, per month RENTABLE AREA OF PREMISES: 45,348 sq. ft.
RENTABLE AREA OF PROJECT: 61,015 sq. ft. TENANT'S SHARE OF OPERATING EXPENSES: 74.3%
SECURITY DEPOSIT: $217,670 TARGET COMMENCEMENT DATE: July 1, 2003
</TABLE>
RENT ADJUSTMENT PERCENTAGE: 5.0%
BASE TERM: Commencing on the Commencement Date and expiring on May 31, 2008
PERMITTED USE: Research and development laboratory, related office and other
related uses consistent with the character of the Project
ADDRESS FOR RENT PAYMENT: LANDLORD'S NOTICE ADDRESS:
135 N. Los Robles Avenue, Suite 250 135 N. Los Robles Avenue, Suite 250
Pasadena, CA 91101 Pasadena, CA 91101
Attention: Accounts Receivable Attention: General Counsel
TENANT'S NOTICE ADDRESS:
Avigen, Inc.
1201 Harbor Bay Parkway
Alameda, California 94502
Attention: Dr. John Monahan
The following Exhibits and Addenda are attached hereto and incorporated herein
by this reference:
[X] EXHIBIT A - PREMISES DESCRIPTION
[X] EXHIBIT B - DESCRIPTION OF PROJECT
[ ] EXHIBIT C - INTENTIONALLY OMITTED
[X] EXHIBIT D - COMMENCEMENT DATE
[X] EXHIBIT E - RULES AND REGULATIONS
[X] EXHIBIT F - TENANT'S PERSONAL PROPERTY
[X] EXHIBIT G - ESTOPPEL CERTIFICATE
[X] EXHIBIT H - NONDISTURBANCE AGREEMENT
1. LEASE OF PREMISES. Upon and subject to all of the terms and
conditions hereof, Landlord hereby leases the Premises to Tenant and Tenant
hereby leases the Premises from Landlord. The portions of the Project which are
for the non-exclusive use of tenants of the Project are collectively referred to
herein as the "COMMON AREAS." Landlord reserves the right to modify Common
Areas, provided that such modifications do not materially adversely affect
Tenant's use of the Premises for the Permitted Use.
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<PAGE> 2
2. DELIVERY; ACCEPTANCE OF PREMISES; COMMENCEMENT DATE. Tenant is as of
the date hereof occupying approximately 23,000 square feet of the Premises (the
"AVIGEN SPACE") and the balance (the "LUCENT SPACE") is leased by Lucent
Technologies, Inc. ("LUCENT") from Landlord pursuant to a Lease dated as of June
1, 1998, by and between Landlord and Ascend Communications, Inc., Lucent's
predecessor (the "LUCENT LEASE"). The Lucent Space is subleased to Tenant
pursuant to a Sublease dated as of February 1, 2000, by and between Lucent and
Tenant (the "SUBLEASE"). Landlord shall use reasonable efforts to deliver the
Lucent Space to Tenant on or before the Target Commencement Date ("DELIVERY" or
"DELIVER"). If Landlord fails to timely Deliver the Lucent Space, Landlord shall
not be liable to Tenant for any loss or damage resulting therefrom, and this
Lease shall not be void or voidable; provided, however, that Tenant shall not be
obligated to pay Rent with respect to the Lucent Space until Landlord Delivers
such space to Tenant.
The "COMMENCEMENT DATE" of this Lease shall be the earlier of (i) the
Lucent Space Commencement Date (as defined below) and (ii) May 15, 2003. If the
Lucent Lease terminates before June 30, 2003, for any reason other than a
default by Tenant under the Sublease, then this Lease shall commence with
respect to the Lucent Space as of the date of termination of the Lucent Lease
and such date shall be the "LUCENT COMMENCEMENT DATE" hereunder. Upon request of
Landlord, Tenant shall execute and deliver a written acknowledgment of the
commencement of the Term hereof with respect to each of the Avigen Space and the
Lucent Space, as applicable, and the expiration date of the Term when such are
established in the form attached to this Lease as EXHIBIT D; provided, however,
Tenant's failure to execute and deliver such acknowledgment shall not affect
Landlord's rights hereunder. The "TERM" of this Lease shall be the Base Term and
any Extension Term which Tenant may elect pursuant to Section 39 hereof.
Notwithstanding anything set forth herein to the contrary, if Landlord
terminates the existing Lease by and between Landlord and Tenant with respect to
the Avigen Space (the "EXISTING LEASE") as a result of any breach or default by
Tenant thereunder, or if Lucent terminates the Sublease as a result of any
breach or default by Tenant as sublessee thereunder, then Landlord shall have
the right to terminate this Lease by written notice to Tenant at any time
following the termination of the Existing Lease or the Sublease.
Tenant shall accept the Avigen Space and the Lucent Space in their
condition as of the date of delivery of each such space to Tenant, subject to
all applicable laws, ordinances, regulations, covenants and restrictions.
Landlord shall have no obligation for any defects in the Premises. Tenant's
taking possession of the Premises shall be conclusive evidence that Tenant
accepts the Premises and that the Premises were in good condition at the time
possession was taken. Any occupancy by Tenant of the Lucent Space hereunder
before May 15, 2003, shall be subject to all of the terms and conditions of this
Lease.
Tenant agrees and acknowledges that neither Landlord nor any agent of
Landlord has made any representation or warranty with respect to the condition
of any or all of the Premises or the Project, and/or the suitability of the
Premises or the Project for the conduct of Tenant's business, and Tenant waives
any implied warranty that the Premises or the Project are suitable for the
Permitted Use. This Lease constitutes the complete agreement of Landlord and
Tenant with respect to the subject matter hereof and supersedes any and all
prior representations, inducements, promises, agreements, understandings and
negotiations which are not contained herein. Landlord in executing this Lease
does so in reliance upon Tenant's representations, warranties, acknowledgments
and agreements contained herein.
3. RENT.
(a) BASE RENT. The first month's Base Rent and the Security Deposit
shall be due and payable not later than the earlier of (i) the Lucent
Commencement Date, and (ii) February 15, 2003. Tenant shall pay to Landlord in
advance, without demand, abatement, deduction or set-off, monthly installments
of Base Rent on or before the first day of each calendar month
2
<PAGE> 3
during the Term hereof, in lawful money of the United States of America, at the
office of Landlord for payment of Rent set forth above, or to such other person
or at such other place as Landlord may from time to time designate in writing.
Payments of Base Rent for any fractional calendar month shall be prorated. The
obligation of Tenant to pay Base Rent and other sums to Landlord and the
obligations of Landlord under this Lease are independent obligations. Tenant
shall have no right at any time to abate, reduce, or set-off any Rent (as
defined in Section 5) due hereunder except for any abatement as may be expressly
provided in this Lease.
(b) ADDITIONAL RENT. In addition to Base Rent, Tenant agrees to pay to
Landlord as additional rent ("ADDITIONAL RENT"): (i) Tenant's Share of
"Operating Expenses" (as defined in Section 5), and (ii) any and all other
amounts Tenant assumes or agrees to pay under the provisions of this Lease,
including, without limitation, any and all other sums that may become due by
reason of any default of Tenant or failure to comply with the agreements, terms,
covenants and conditions of this Lease to be performed by Tenant, after any
applicable notice and cure period.
4. BASE RENT ADJUSTMENTS. Base Rent shall be increased on each annual
anniversary of the first day of the first full month during the Term of this
Lease by multiplying the Base Rent payable immediately before such adjustment by
the Rent Adjustment Percentage and adding the resulting amount to the Base Rent
payable immediately before such adjustment. Base Rent, as so adjusted, shall
thereafter be due as provided herein. Base Rent adjustments for any fractional
calendar month shall be prorated.
5. OPERATING EXPENSE PAYMENTS. Landlord shall deliver to Tenant a
written estimate of Operating Expenses for each calendar year during the Term
(the "ANNUAL Estimate"), which may be revised by Landlord from time to time
during such calendar year. During each month of the Term, on the same date that
Base Rent is due, Tenant shall pay Landlord an amount equal to 1/12 of Tenant's
Share of the Annual Estimate. Payments for any fractional calendar month shall
be prorated.
The term "OPERATING EXPENSES" means all costs and expenses of any kind
or description whatsoever incurred or accrued each calendar year by Landlord
with respect to the Project (including, without duplication, Taxes (as defined
in Section 9), reasonable reserves consistent with good business practice for
future repairs and replacements, capital repairs and improvements amortized over
the lesser of 7 years and the useful life of such capital items, and the costs
of Landlord's third party property manager or, if there is no third party
property manager, administration rent in the amount of 5.0% of Base Rent),
excluding only:
(a) the original construction costs of the Project and renovation prior
to the date of the Lease and costs of correcting defects in such original
construction or renovation;
(b) capital expenditures for expansion of the Project;
(c) costs incurred in connection with environmental clean up, response
action or remediation on, in or under or about the Project, to the extent
related to the emergency generator and the related underground storage tank
formerly located on the Project;
(d) interest, principal payments of Mortgage (as defined in Section 27)
debts of Landlord, financing costs and amortization of funds borrowed by
Landlord, whether secured or unsecured and all payments of base rent (but not
taxes or operating expenses) under any ground lease or other underlying lease of
all or any portion of the Project;
(e) depreciation of the Project (except for capital improvements, the
cost of which are includable in Operating Expenses);
3
<PAGE> 4
(f) advertising, legal and space planning expenses and leasing
commissions and other costs and expenses incurred in procuring and leasing space
to tenants for the Project, including any leasing office maintained in the
Project, free rent and construction allowances for tenants;
(g) legal and other expenses incurred in the negotiation or enforcement
of leases;
(h) completing, fixturing, improving, renovating, painting, redecorating
or other work, which Landlord pays for or performs for specific tenants within
their premises, and costs of correcting defects in such work;
(i) costs of utilities outside normal business hours sold to tenants of
the Project;
(j) costs to be reimbursed by other tenants of the Project or Taxes to
be paid directly by Tenant or other tenants of the Project, whether or not
actually paid;
(k) salaries, wages, benefits and other compensation paid to officers
and employees of Landlord who are not assigned in whole or in part to the
operation, management, maintenance or repair of the Project;
(l) general organizational, administrative and overhead costs relating
to maintaining Landlord's existence, either as a corporation, partnership, or
other entity, including general corporate, legal and accounting expenses;
(m) costs (including attorneys' fees and costs of settlement, judgments
and payments in lieu thereof) incurred in connection with disputes with tenants,
other occupants, or prospective tenants, and costs and expenses, including legal
fees, incurred in connection with negotiations or disputes with employees,
consultants, management agents, leasing agents, purchasers or mortgagees of the
Building;
(n) costs incurred by Landlord due to the violation by Landlord, its
employees, agents or contractors or any tenant of the terms and conditions of
any lease of space in the Project or any Legal Requirement (as defined in
Section 7);
(o) tax penalties, fines or interest incurred as a result of Landlord's
negligence, inability or unwillingness to make payment and/or to file any tax or
informational returns when due, or from Landlord's failure to make any payment
required to be made by Landlord hereunder before delinquency;
(p) overhead and profit increment paid to the Landlord or to
subsidiaries or affiliates of Landlord for goods and/or services in or to the
Project to the extent the same exceeds the costs of such goods and/or services
rendered by unaffiliated third parties on a competitive basis;
(q) costs arising from Landlord's charitable or political contributions
or fine art maintained at the Project;
(r) costs in connection with services (including electricity), items or
other benefits of a type which are not standard for the Project and which are
not available to Tenant without specific charges therefor, but which are
provided to another tenant or occupant of the Project, whether or not such other
tenant or occupant is specifically charged therefore by Landlord;
(s) costs incurred in the sale or refinancing of the Project;
(t) net income taxes of Landlord or the owner of any interest in the
Project, franchise, capital stock, gift, estate or inheritance taxes or any
federal, state or local documentary taxes imposed against the Project or any
portion thereof or interest therein; and
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<PAGE> 5
(u) any expenses otherwise includable within Operating Expenses to the
extent actually reimbursed by persons other than tenants of the Project under
leases for space in the Project.
Within 90 days after the end of each calendar year (or such longer
period as may be reasonably required), Landlord shall furnish to Tenant a
statement (an "ANNUAL STATEMENT") showing in reasonable detail: (a) the total
and Tenant's Share of actual Operating Expenses for the previous calendar year,
and (b) the total of Tenant's payments in respect of Operating Expenses for such
year. If Tenant's Share of actual Operating Expenses for such year exceeds
Tenant's payments of Operating Expenses for such year, the excess shall be due
and payable by Tenant as Rent within 30 days after delivery of such Annual
Statement to Tenant. If Tenant's payments of Operating Expenses for such year
exceed Tenant's Share of actual Operating Expenses for such year Landlord shall
pay the excess to Tenant within 30 days after delivery of such Annual Statement,
except that after expiration, or earlier termination of the Term, Landlord shall
pay the excess to Tenant after deducting all other amounts due Landlord.
The Annual Statement shall be final and binding upon Tenant unless
Tenant, within 30 days after Tenant's receipt thereof, shall contest any item
therein by giving written notice to Landlord, specifying each item contested and
the reason therefor. If, during such 30 day period, Tenant reasonably and in
good faith questions or contests the correctness of Landlord's statement of
Tenant's Share of Operating Expenses, Landlord will provide Tenant with access
to Landlord's books and records relating to the operation of the Project and
such information as Landlord reasonably determines to be responsive to Tenant's
questions. If after Tenant's review of such information, Landlord and Tenant
cannot agree upon the amount of Tenant's Share of Operating Expenses, then
Tenant shall have the right to have an independent public accounting firm
selected by Tenant from among the 5 largest in the United States, working
pursuant to a fee arrangement other than a contingent fee (at Tenant's sole cost
and expense) and approved by Landlord (which approval shall not be unreasonably
withheld or delayed), audit and/or review Landlord's books and records relating
to the operation of the Project and such other information relating to the
operation of the Project for the year in question (the "INDEPENDENT REVIEW").
The results of any such Independent Review shall be binding on Landlord and
Tenant. If the Independent Review shows that Tenant's pro rata share of the
Operating Expenses actually paid by Tenant for the calendar year in question
exceeded Tenant's obligations for such calendar year, Landlord shall at
Landlord's option either (i) credit the excess amount to the next succeeding
installments of estimated Operating Expenses or (ii) pay the excess to Tenant
within 30 days after delivery of such statement, except that after expiration or
earlier termination of the Term, Landlord shall pay the excess to Tenant after
deducting all other amounts due Landlord. If the Independent Review shows that
Tenant's payments of Tenant's Share of Operating Expenses for such calendar year
were less than Tenant's obligation for the calendar year, Tenant shall pay the
deficiency to the Landlord within 30 days after delivery of such statement. If
the Independent Review shows that Tenant has overpaid Tenant's pro rata share of
Operating Expenses by more than 5% then Landlord shall reimburse Tenant for all
costs incurred by Tenant for the Independent Review. Operating Expenses for the
calendar years in which Tenant's obligation to share therein begins and ends
shall be prorated. Notwithstanding anything set forth herein to the contrary, if
the Project is not at least 95% occupied on average during any year of the Term,
Tenant's Share of Operating Expenses for such year shall be computed as though
the Project had been 95% occupied on average during such year.
"TENANT'S SHARE" shall be the percentage set forth on the first page of
this Lease as Tenant's Share as reasonably adjusted by Landlord for changes in
the physical size of the Premises or the Project occurring thereafter. Landlord
may equitably increase Tenant's Share for any item of expense or cost
reimbursable by Tenant that relates to a repair, replacement, or service that
benefits only the Premises or only a portion of the Project that includes the
Premises or that varies with occupancy or use. Base Rent, Tenant's Share of
Operating Expenses and all other amounts payable by Tenant to Landlord hereunder
are collectively referred to herein as
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<PAGE> 6
"RENT."
6. DEPOSITS.
(a) SECURITY DEPOSIT. On or before January 1, 2003, Tenant shall deposit
with Landlord security (the "SECURITY DEPOSIT") for the performance of all of
its obligations in the amount set forth in the Basic Lease Provisions, which
security shall be in the form of either cash or an unconditional and irrevocable
letter of credit or a combination thereof. Any such letter of credit (a "LETTER
OF CREDIT") shall: (i) be in form and substance satisfactory to Landlord, (ii)
name Landlord as beneficiary, (iii) expressly allow Landlord to draw upon it at
any time from time to time by delivering to the issuer notice that Landlord is
entitled to draw thereunder, (iv) be drawable on an FDIC-insured financial
institution reasonably satisfactory to Landlord, and (v) be redeemable in the
state of Landlord's choice. If Tenant does not provide Landlord with a
substitute Letter of Credit complying with all of the requirements hereof at
least ten (10) days before the stated expiration date of the then current Letter
of Credit, Landlord shall have the right to draw upon the current Letter of
Credit and hold the funds drawn as the Security Deposit. The Security Deposit
shall be held by Landlord as security for the performance of Tenant's
obligations under this Lease. The Security Deposit is not an advance rental
deposit or a measure of Landlord's damages in case of Tenant's default. Upon
each occurrence of a Default (as defined in Section 20), Landlord may use all or
any part of the Security Deposit to pay delinquent payments due under this
Lease, and the cost of any damage, injury, expense or liability caused by such
Default, without prejudice to any other remedy provided herein or provided by
law. Upon any such use of all or any portion of the Security Deposit, Tenant
shall pay Landlord on demand the amount that will restore the Security Deposit
to its original amount. Tenant hereby waives the provisions of any law, now or
hereafter in force, which provide that Landlord may claim from a security
deposit only those sums reasonably necessary to remedy defaults in the payment
of Rent, to repair damage caused by Tenant or to clean the Premises, it being
agreed that Landlord may, in addition, claim those sums reasonably necessary to
compensate Landlord for any other loss or damage, foreseeable or unforeseeable,
caused by the act or omission of Tenant or any officer, employee, agent or
invitee of Tenant. Upon bankruptcy or other debtor-creditor proceedings against
Tenant, the Security Deposit shall be deemed to be applied first to the payment
of Rent and other charges due Landlord for periods prior to the filing of such
proceedings. Upon any such use of all or any portion of the Security Deposit,
Tenant shall, within five (5) days after demand from Landlord, reinstate the
Security Deposit to its original amount. If Tenant shall fully perform every
provision of this Lease to be performed by Tenant, the Security Deposit, or any
balance thereof, shall be returned to Tenant (or, at Landlord's option, to the
last assignee of Tenant's interest hereunder) within 360 days after the
expiration or earlier termination of this Lease.
If Landlord transfers its interest in the Project or this Lease,
Landlord shall either (a) transfer any Security Deposit then held by Landlord to
a person or entity assuming Landlord's obligations under this Section 6, or (b)
return to Tenant any Security Deposit then held by Landlord and remaining after
the deductions permitted herein. Upon such transfer to such transferee or the
return of the Security Deposit to Tenant, Landlord shall have no further
obligation with respect to the Security Deposit, and Tenant's right to the
return of the Security Deposit shall apply solely against Landlord's transferee.
The Security Deposit is not an advance rental deposit or a measure of Landlord's
damages in case of Tenant's default. Landlord's obligation respecting the
Security Deposit is that of a debtor, not a trustee and; no interest shall
accrue thereon.
(b) RESTORATION DEPOSIT. While Tenant occupied the Lucent Space under
the Sublease, and during the Term of this Lease pursuant to Section 12, Tenant
made and may make certain improvements to the Lucent Space (the "DISFAVORED
IMPROVEMENTS") which Landlord may, in its sole discretion, want removed,
reconfigured or otherwise altered in connection with any reletting of all or any
portion of the Lucent Space following the expiration or termination of this
Lease. To the extent such Disfavored Improvements are made by Tenant
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<PAGE> 7
either during the term of the Sublease or this Lease, Landlord is to receive a
restoration deposit in the amount of $30 per rentable square foot of the
Disfavored Improvements (the "RESTORATION DEPOSIT"). Upon the Commencement Date
Tenant shall deposit with Landlord, or otherwise assure that Landlord holds, a
Restoration Deposit with respect to all Disfavored Improvements made during the
term of the Sublease.
Tenant hereby acknowledges and agrees that notwithstanding anything to
the contrary contained in this Lease, the Lucent Lease or the Sublease, Landlord
shall have the right to elect either:
(i) by written notice to Tenant delivered not less than 90 days
before the expiration of the Term, to cause Tenant to remove all
Disfavored Improvements and to fully restore the Lucent Space to the
condition existing prior to the installation of such Disfavored
Improvements, in which event upon full performance of all such
obligations the Restoration Deposit shall be returned to Tenant, or
(ii) by failing to give the notice described in clause (i) above,
to elect to hold the Restoration Deposit and the Security Deposit for up
to 12 months after the expiration or earlier termination of this Lease
for the removal, reconfiguration or other alteration of all or any
portion of the Disfavored Improvements; in which case Tenant shall have
no liability for such removal or restoration of the Disfavored
Improvements beyond the Restoration Deposit and the Security Deposit.
If Landlord exercises the right described in clause (ii) above, Landlord may use
all or any portion of the Restoration Deposit and the Security Deposit in
connection with any such removal, reconfiguration or other alteration at any
time up to 12 months after the expiration or earlier termination of this Lease.
The Restoration Deposit shall be held by Landlord as security for the
foregoing purposes. The Restoration Deposit is not an advance rental deposit or
a measure of Landlord's damages in case of Tenant's default under clause (i)
above. Landlord's obligation respecting the Restoration Deposit is that of a
debtor, not a trustee; no interest shall accrue thereon. The Restoration Deposit
shall be the property of Landlord, but any unused balance shall be paid to
Tenant as provided below. Landlord shall be released from any obligation with
respect to the Restoration Deposit upon transfer of this Lease and the Premises
to a person or entity assuming Landlord's obligations under this Section 6.
Tenant hereby waives the provisions of any law, now or hereafter in force, which
provide that Landlord may claim from a security deposit only those sums
reasonably necessary to remedy defaults in the payment of Rent, to repair damage
caused by Tenant or to clean the Premises. Any balance of the Restoration
Deposit remaining after Landlord has completed its removal, reconfiguration or
other alteration of the Disfavored Improvements shall be returned to Tenant (or,
at Landlord's option, to the last assignee of Tenant's interest hereunder)
within 360 days after the expiration or earlier termination of this Lease.
7. USE. The Premises shall be used solely for the Permitted Use set
forth in the Basic Lease Provisions, in compliance with all laws, orders,
judgments, ordinances, regulations, codes, directives, permits, licenses,
covenants and restrictions now or hereafter applicable to the Premises, and the
use and occupancy thereof (collectively, "LEGAL REQUIREMENTS"). Tenant shall,
upon 5 days' written notice from Landlord, discontinue any use of the Premises
which is declared by any Governmental Authority (as defined in Section 9) having
jurisdiction to be a violation of any Legal Requirement. Tenant will not use or
permit the Premises to be used for any purpose or in any manner that would void
Tenant's or Landlord's insurance, increase the insurance risk, or cause the
disallowance of any sprinkler or other credits. Tenant shall reimburse Landlord
promptly upon demand for any additional premium charged for any such insurance
policy by reason of Tenant's failure to comply with the provisions of this
Section or otherwise caused by Tenant's use and/or occupancy of the Premises.
Tenant will use the
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Premises in a careful, safe and proper manner and will not commit waste,
overload the floor or structure of the Premises, subject the Premises to use
that would damage the Premises or obstruct or interfere with the rights of
Landlord or other tenants or occupants of the Project, including conducting or
giving notice of any auction, liquidation, or going out of business sale on the
Premises, or using or allowing the Premises to be used for any unlawful purpose.
Tenant shall cause any equipment or machinery to be installed in the Premises so
as to reasonably prevent sounds or vibrations from the Premises from extending
into Common Areas, or other space in the Project. Tenant shall not place any
machinery or equipment weighing 500 pounds or more in or upon the Premises or
transport or move such items through the Common Areas of the Project or in the
Project elevators without the prior written consent of Landlord. Except as may
be provided under the Work Letter, Tenant shall not, without the prior written
consent of Landlord, use the Premises in any manner which will require
ventilation, air exchange, heating, gas, steam, electricity or water beyond the
existing capacity of the Project as proportionately allocated to the Premises
based upon Tenant's Share as usually furnished for the Permitted Use.
Landlord has received no notices that THE PREMISES are not in compliance
with the applicable provisions of the Americans With Disabilities Act, 42 U.S.C.
Section 12101, et seq. (together with regulations promulgated pursuant thereto,
"ADA"). Landlord shall be responsible, as an Operating Expense, for any
alterations or modifications to the interior or the exterior of the Premises or
the Project that are required by Legal Requirements (other than compliance of
the Premises with the ADA) which are generally applicable without regard to the
specific use or occupancy of, activity occurring in or alteration of any portion
of the Project. Tenant, at its sole expense, shall make all other alterations or
modifications to the interior or the exterior of the Premises or the Project
that are required by Legal Requirements (including in all circumstances
compliance of the Premises with the ADA) related to Tenant's use or occupancy of
the Premises, any activity occurring in the Premises or any alteration of the
Premises. Notwithstanding any other provision herein to the contrary, Tenant
shall be responsible for any and all demands, claims, liabilities, losses,
costs, expenses, actions, causes of action, damages or judgments, and all
reasonable expenses incurred in investigating or resisting the same (including,
without limitation, reasonable attorneys' fees, charges and disbursements and
costs of suit) (collectively, "CLAIMS") arising out of or in connection with
Legal Requirements, and Tenant shall indemnify, defend, hold and save Landlord
harmless from and against any and all Claims arising out of or in connection
with any failure of the Premises to comply with any Legal Requirement.
8 HOLDING OVER. If, with Landlord's express written consent, Tenant
retains possession of the Premises after the termination of the Term, (i) unless
otherwise agreed in such written consent, such possession shall be subject to
immediate termination by Landlord at any time, (ii) all of the other terms and
provisions of this Lease (including, without limitation, the adjustment of Base
Rent pursuant to Section 4 hereof) shall remain in full force and effect
(excluding any expansion or renewal option or other similar right or option)
during such holdover period, (iii) Tenant shall continue to pay Base Rent in the
amount payable upon the date of the expiration or earlier termination of this
Lease or such other amount as Landlord may indicate, in Landlord's sole and
absolute discretion, in such written consent (not to exceed 200% of the Rent in
effect during the last 30 days of the Term), and (iv) all other payments shall
continue under the terms of this Lease. If Tenant remains in possession of the
Premises after the expiration or earlier termination of the Term without the
express written consent of Landlord, (A) Tenant shall become a tenant at
sufferance upon the terms of this Lease except that the monthly rental shall be
equal to 200% of the Rent in effect during the last 30 days of the Term, and (B)
Tenant shall be responsible for all damages suffered by Landlord resulting from
or occasioned by Tenant's holding over, including consequential damages. No
holding over by Tenant, whether with or without consent of Landlord, shall
operate to extend this Lease except as otherwise expressly provided, and this
Section 8 shall not be construed as consent for Tenant to retain possession of
the Premises. Acceptance by Landlord of Rent after the expiration of the Term or
earlier termination of this Lease shall not result in a renewal or reinstatement
of this Lease.
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9 TAXES. Landlord shall pay, as part of Operating Expenses, all taxes,
levies, assessments and governmental charges of any kind (collectively referred
to as "TAXES") imposed by any federal, state, regional, municipal, local or
other governmental authority or agency, including, without limitation,
quasi-public agencies (collectively, "GOVERNMENTAL AUTHORITY") during the Term,
including, without limitation, all Taxes: (i) imposed on or measured by or
based, in whole or in part, on rent payable to Landlord under this Lease and/or
from the rental by Landlord of the Project or any portion thereof, or (ii) based
on the square footage, assessed value or other measure or evaluation of any kind
of the Premises or the Project, or (iii) assessed or imposed by or on the
operation or maintenance of any portion of the Premises or the Project,
including parking, or (iv) assessed or imposed by, or at the direction of, or
resulting from statutes or regulations, or interpretations thereof, promulgated
by, any Governmental Authority, or (v) imposed as a license or other fee on
Landlord's business of leasing space in the Project. Landlord may contest by
appropriate legal proceedings the amount, validity, or application of any Taxes
or liens securing Taxes. Taxes shall not include any net income taxes imposed on
Landlord unless such net income taxes are in substitution for any Taxes payable
hereunder. If any such Tax is levied or assessed directly against Tenant, then
Tenant shall be responsible for and shall pay the same at such times and in such
manner as the taxing authority shall require. Tenant shall pay, prior to
delinquency, any and all Taxes levied or assessed against any personal property
or trade fixtures placed by Tenant in the Premises, whether levied or assessed
against Landlord or Tenant. If any Taxes on Tenant's personal property or trade
fixtures are levied against Landlord or Landlord's property, or if the assessed
valuation of the Project is increased by a value attributable to improvements in
or alterations to the Premises, whether owned by Landlord or Tenant and whether
or not affixed to the real property so as to become a part thereof, higher than
the base valuation on which Landlord from time-to-time allocates Taxes to all
tenants in the Project, Landlord shall have the right, but not the obligation,
to pay such Taxes. Landlord's determination of any excess assessed valuation
shall be binding and conclusive, absent manifest error. The amount of any such
payment by Landlord shall constitute Additional Rent due from Tenant to Landlord
immediately upon demand.
10 PARKING. Tenant shall have the right, at no additional charge, to
park in common with other tenants of the Project pro rata in accordance with the
rentable area of the Premises and the rentable areas of the Project occupied by
such other tenants in those areas designated for non-reserved parking, subject
in each case to Landlord's rules and regulations. Landlord may allocate parking
spaces among Tenant and other tenants in the Project pro rata as described above
if Landlord determines that such parking facilities are becoming crowded.
Landlord shall not be responsible for enforcing Tenant's parking rights against
any third parties, including other tenants of the Project.
11 UTILITIES, SERVICES.
Landlord shall provide, subject to the terms of this Section 11, water,
electricity, heat, light, power, telephone, sewer, and other utilities
(including gas and fire sprinklers to the extent the Project is plumbed for such
services), refuse and trash collection and janitorial services (collectively,
"UTILITIES"). Landlord shall pay, as Operating Expenses or subject to Tenant's
reimbursement obligation, for all Utilities used on the Premises, all
maintenance charges for Utilities, and any storm sewer charges or other similar
charges for Utilities imposed by any Governmental Authority or Utility provider,
and any taxes, penalties, surcharges or similar charges thereon. Landlord may
cause, at Tenant's expense, any Utilities to be separately metered or charged
directly to Tenant by the provider. Tenant shall pay directly to the Utility
provider, prior to delinquency, any separately metered Utilities and services
which may be furnished to Tenant or the Premises during the Term. Tenant shall
pay, as part of Operating Expenses, its share of all charges for jointly metered
Utilities based upon consumption, as reasonably determined by Landlord. No
interruption or failure of Utilities, from any cause whatsoever other than
Landlord's willful misconduct, shall result in eviction or constructive
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eviction of Tenant, termination of this Lease or the abatement of Rent. Tenant
agrees to limit use of water and sewer with respect to Common Areas to normal
restroom use.
12 ALTERATIONS AND TENANT'S PROPERTY. Any alterations, additions, or
improvements made to the Premises by or on behalf of Tenant, including
additional locks or bolts of any kind or nature upon any doors or windows in the
Premises, but excluding installation, removal or realignment of furniture
systems (other than removal of furniture systems owned or paid for by Landlord)
not involving any modifications to the structure or connections (other then by
ordinary plugs or jacks) to Building Systems (as defined in Section 13)
("ALTERATIONS") shall be subject to Landlord's prior written consent, which may
be given or withheld in Landlord's sole discretion if any such Alteration
affects the structure or Building Systems. Tenant may construct nonstructural
Alterations in the Premises without Landlord's prior approval if the aggregate
cost of all such work in any 12 month period does not exceed $50,000 (a
"NOTICE-ONLY ALTERATION"), provided Tenant notifies Landlord in writing of such
intended Notice-Only Alteration, and such notice shall be accompanied by plans,
specifications, work contracts and such other information concerning the nature
and cost of the Notice-Only Alteration as may be reasonably requested by
Landlord, which notice and accompanying materials shall be delivered to Landlord
not less than 15 business days in advance of any proposed construction. If
Landlord approves any Alterations, Landlord may impose such conditions on Tenant
in connection with the commencement, performance and completion of such
Alterations as Landlord may deem appropriate in Landlord's reasonable
discretion, including requiring a Restoration Deposit, to be held and used as
described in Section 6(b), in connection with any such Alterations made to the
Lucent Space which, in Landlord's reasonable opinion, substantially destroy the
office improvements existing in the Lucent Space as of the date hereof. Any
request for approval shall be in writing, delivered not less than 15 business
days in advance of any proposed construction, and accompanied by plans,
specifications, bid proposals, work contracts and such other information
concerning the nature and cost of the alterations as may be reasonably requested
by Landlord, including the identities and mailing addresses of all persons
performing work or supplying materials. Landlord's right to review plans and
specifications and to monitor construction shall be solely for its own benefit,
and Landlord shall have no duty to ensure that such plans and specifications or
construction comply with applicable Legal Requirements. Tenant shall cause, at
its sole cost and expense, all Alterations to comply with insurance requirements
and with Legal Requirements and shall implement at its sole cost and expense any
alteration or modification required by Legal Requirements as a result of any
Alterations. Tenant shall pay to Landlord, as Additional Rent, on demand an
amount equal to 3% of all charges incurred by Tenant or its contractors or
agents in connection with any Alteration to cover Landlord's overhead and
expenses for plan review, coordination, scheduling and supervision. Before
Tenant begins any Alteration, Landlord may post on and about the Premises
notices of non-responsibility pursuant to applicable law. Tenant shall reimburse
Landlord for, and indemnify and hold Landlord harmless from, any expense
incurred by Landlord by reason of faulty work done by Tenant or its contractors,
delays caused by such work, or inadequate cleanup.
Tenant shall furnish security or make other arrangements reasonably
satisfactory to Landlord to assure payment for the completion of all Alterations
work free and clear of liens, and shall provide certificates of insurance for
workers' compensation and other coverage in amounts and from an insurance
company satisfactory to Landlord protecting Landlord against liability for
personal injury or property damage during construction. Upon completion of any
Alterations, Tenant shall deliver to Landlord: (i) sworn statements setting
forth the names of all contractors and subcontractors who did the work and final
lien waivers from all such contractors and subcontractors; and (ii) "as built"
plans for any such Alteration.
Other than (i) the items, if any, listed on EXHIBIT F attached hereto,
(ii) any items agreed by Landlord in writing to be included on EXHIBIT F in the
future, and (iii) any trade fixtures, machinery, equipment and other personal
property which may be removed without material
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damage to the Premises, which damage shall be repaired (including capping or
terminating utility hook-ups behind walls) by Tenant during the Term
(collectively, "TENANT'S PROPERTY"), all property of any kind paid for with the
TI Fund, all Alterations, built-in casework and cabinets and other similar
additions and improvements built into the Premises so as to become an integral
part of the Premises such as built-in plumbing, electrical and mechanical
systems (collectively, "INSTALLATIONS") shall be and shall remain the property
of Landlord during the Term and following the expiration or earlier termination
of the Term, shall not be removed by Tenant at any time during the Term and
shall remain upon and be surrendered with the Premises as a part thereof
following the expiration or earlier termination of this Lease; provided,
however, that Landlord shall, at the time its approval of such Installation is
requested or at the time it receives notice of a Notice-Only Alteration notify
Tenant if it has elected to cause Tenant to remove such Installation upon the
expiration or earlier termination of this Lease. If Landlord so elects, Tenant
shall remove such Installation upon the expiration or earlier termination of
this Lease and restore any damage caused by or occasioned as a result of such
removal, including, when removing any of Tenant's Property which was plumbed,
wired or otherwise connected to any of the Building Systems, capping off all
such connections behind the walls of the Premises and repairing any holes.
During any such restoration period, Tenant shall pay Rent to Landlord as
provided herein as if said space were otherwise occupied by Tenant.
13 LANDLORD'S REPAIRS. Landlord, as an Operating Expense, shall maintain
all of the structural, exterior, parking and other Common Areas of the Project,
including HVAC, plumbing, fire sprinklers, elevators and all other building
systems serving the Premises and other portions of the Project ("BUILDING
SYSTEMS"), in good repair, reasonable wear and tear and uninsured losses and
damages caused by Tenant, its agents, servants, employees, invitees and
contractors excluded. Losses and damages caused by Tenant, its agents, servants,
employees, invitees and contractors shall be repaired by Landlord, to the extent
not covered by insurance, at Tenant's sole cost and expense. Landlord reserves
the right to stop Building System services when necessary (i) by reason of
accident or emergency, or (ii) for planned repairs, alterations or improvements,
which are, in the reasonable judgment of Landlord, desirable or necessary to be
made, until said repairs, alterations or improvements shall have been completed.
Landlord shall have no responsibility or liability for failure to supply
Building System services during any such period of interruption; provided,
however, that Landlord shall give Tenant 24 hours advance notice of any planned
stoppage of Building System services for routine maintenance, repairs,
alterations or improvements. Tenant shall promptly give Landlord written notice
of any repair required by Landlord pursuant to this Section, after which
Landlord shall have a reasonable opportunity to effect such repair. Landlord
shall not be liable for any failure to make any repairs or to perform any
maintenance unless such failure shall persist for an unreasonable time after
Tenant's written notice of the need for such repairs or maintenance. Tenant
waives its rights under any state or local law to terminate this Lease or to
make such repairs at Landlord's expense and agrees that the parties' respective
rights with respect to such matters shall be solely as set forth herein. Repairs
required as the result of fire, earthquake, flood, vandalism, war, or similar
cause of damage or destruction shall be controlled by Section 18.
14 TENANT'S REPAIRS. Subject to Section 13 hereof, Tenant, at its
expense, shall repair, replace and maintain in good condition all portions of
the Premises, including, without limitation, entries, doors, ceilings, interior
windows, interior walls, and the interior side of demising walls. Such repair
and replacements may include capital expenditures and repairs whose benefit may
extend beyond the Term. Should Tenant fail to make any such repair or
replacement or fail to maintain the Premises, Landlord shall give Tenant notice
of such failure. If Tenant fails to commence cure of such default within 10 days
of Landlord's notice, and thereafter diligently prosecute such cure to
completion, Landlord may perform such work and shall be reimbursed by Tenant
within 10 days after demand therefor; provided, however, that if such default by
Tenant creates or could create an emergency, Landlord may immediately commence
cure of such default and shall thereafter be entitled to recover the costs of
such cure from Tenant. Subject to Sections 17 and 18, Tenant shall bear the full
uninsured cost of any
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repair or replacement to any part of the Project that results from damage caused
by Tenant, its agents, contractors, or invitees and any repair that benefits
only the Premises.
15 MECHANIC'S LIENS. Tenant shall discharge, by bond or otherwise, any
mechanic's lien filed against the Premises or against the Project for work
claimed to have been done for, or materials claimed to have been furnished to,
Tenant within 10 days after the filing thereof, at Tenant's sole cost and shall
otherwise keep the Premises and the Project free from any liens arising out of
work performed, materials furnished or obligations incurred by Tenant. Should
Tenant fail to discharge any lien described herein, Landlord shall have the
right, but not the obligation, to pay such claim or post a bond or otherwise
provide security to eliminate the lien as a claim against title to the Project
and the cost thereof shall be immediately due from Tenant as Additional Rent. If
Tenant shall lease or finance the acquisition of office equipment, furnishings,
or other personal property of a removable nature utilized by Tenant in the
operation of Tenant's business, Tenant warrants that any Uniform Commercial Code
Financing Statement executed by Tenant will upon its face or by exhibit thereto
indicate that such Financing Statement is applicable only to removable personal
property of Tenant located within the Premises. In no event shall the address of
the Project be furnished on the statement without qualifying language as to
applicability of the lien only to removable personal property, located in an
identified suite held by Tenant.
16 INDEMNIFICATION. Tenant hereby indemnifies and agrees to defend, save
and hold Landlord harmless from and against any and all Claims for injury or
death to persons or damage to property occurring within or about the Premises,
arising directly or indirectly out of use or occupancy of the Premises or a
breach or default by Tenant in the performance of any of its obligations
hereunder, unless caused solely by the willful misconduct or gross negligence of
Landlord. Landlord shall not be liable to Tenant for, and Tenant assumes all
risk of damage to, personal property (including, without limitation, loss of
records kept within the Premises). Tenant further waives any and all Claims for
injury to Tenant's business or loss of income relating to any such damage or
destruction of personal property (including, without limitation, any loss of
records). Landlord shall not be liable for any damages arising from any act,
omission or neglect of any tenant in the Project or of any other third party.
17 INSURANCE. Landlord shall maintain all insurance against any peril
generally included within the classification "Fire and Extended Coverage,"
sprinkler damage (if applicable), vandalism and malicious mischief covering the
full replacement cost of the Project. Landlord shall further carry commercial
general liability insurance with a single loss limit of not less than $2,000,000
for death or bodily injury, or property damage with respect to the Project.
Landlord may, but is not obligated to, maintain such other insurance and
additional coverages as it may deem necessary, including, but not limited to,
flood, environmental hazard and earthquake, loss or failure of building
equipment, errors and omissions, rental loss during the period of repair or
rebuilding, workers' compensation insurance and fidelity bonds for employees
employed to perform services and insurance for any improvements installed by
Tenant or which are in addition to the standard improvements customarily
furnished by Landlord without regard to whether or not such are made a part of
the Project. All such insurance shall be included as part of the Operating
Expenses. The Project may be included in a blanket policy (in which case the
cost of such insurance allocable to the Project will be determined by Landlord
based upon the insurer's cost calculations). Tenant shall also reimburse
Landlord for any increased premiums or additional insurance which Landlord
reasonably deems necessary as a result of Tenant's use of the Premises.
Tenant, at its sole cost and expense, shall maintain during the Term:
all risk property insurance covering the full replacement cost of all property
and improvements installed or placed in the Premises by Tenant at Tenant's
expense; workers' compensation insurance with no less than the minimum limits
required by law; employer's liability insurance with such limits as required by
law; and commercial general liability insurance, with a minimum limit of not
less than
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$2,000,000 per occurrence for death or bodily injury and not less than
$1,000,000 for property damage with respect to the Premises. The commercial
general liability insurance policies shall name Landlord, its officers,
directors, employees, managers, agents, invitees and contractors (collectively,
"RELATED PARTIES"), as additional insureds; insure on an occurrence and not a
claims-made basis; be issued by insurance companies which have a rating of not
less than policyholder rating of A and financial category rating of at least
Class XII in "Best's Insurance Guide"; shall not be cancelable unless 30 days
prior written notice shall have been given to Landlord from the insurer; contain
a hostile fire endorsement and a contractual liability endorsement; and provide
primary coverage to Landlord (any policy issued to Landlord providing duplicate
or similar coverage shall be deemed excess over Tenant's policies). Such
policies or certificates thereof shall be delivered to Landlord by Tenant upon
commencement of the Term and upon each renewal of said insurance. Tenant's
policy may be a "blanket policy" which specifically provides that the amount of
insurance shall not be prejudiced by other losses covered by the policy. Tenant
shall, at least 20 days prior to the expiration of such policies, furnish
Landlord with renewals or binders. Tenant agrees that if Tenant does not take
out and maintain such insurance, Landlord may (but shall not be required to)
procure said insurance on Tenant's behalf and at its cost to be paid as
Additional Rent.
In each instance where insurance is to name Landlord as an additional
insured, Tenant shall upon written request of Landlord also designate and
furnish certificates so evidencing Landlord as additional insured to: (i) any
lender of Landlord holding a security interest in the Project or any portion
thereof, (ii) the landlord under any lease wherein Landlord is tenant of the
real property on which the Project is located, if the interest of Landlord is or
shall become that of a tenant under a ground or other underlying lease rather
than that of a fee owner, and/or (iii) any management company retained by
Landlord to manage the Project.
The property insurance obtained by Landlord and Tenant shall include a
waiver of subrogation by the insurers and all rights based upon an assignment
from its insured, against Landlord or Tenant, and their respective Related
Parties, in connection with any loss or damage thereby insured against. Neither
party nor its respective Related Parties shall be liable to the other for loss
or damage caused by any risk insured against under property insurance required
to be maintained hereunder, and each party waives any claims against the other
party, and its respective Related Parties, for such loss or damage. The failure
of a party to insure its property shall not void this waiver. Landlord and its
respective Related Parties shall not be liable for, and Tenant hereby waives all
claims against such parties for, business interruption and losses occasioned
thereby sustained by Tenant or any person claiming through Tenant resulting from
any accident or occurrence in or upon the Premises or the Project from any cause
whatsoever. If the foregoing waivers shall contravene any law with respect to
exculpatory agreements, the liability of Landlord or Tenant shall be deemed not
released but shall be secondary to the other's insurer.
Landlord may require insurance policy limits to be raised to conform
with requirements of Landlord's lender and/or to bring coverage limits to levels
then being generally required of new tenants within the Project.
18 RESTORATION. If at any time during the Term the Project or the
Premises are damaged by a fire or other insured casualty, Landlord shall notify
Tenant within 60 days after discovery of such damage as to the amount of time
Landlord reasonably estimates it will take to restore the Project or the
Premises, as applicable. If the restoration time is estimated to exceed 12
months, Landlord may, in such notice, elect to terminate this Lease as of the
date that is 75 days after the date of discovery of such damage or destruction;
provided, however, that notwithstanding Landlord's election to restore the
Premises, Tenant may elect to terminate this Lease by written notice to Landlord
delivered within 5 business days of receipt of Landlord's notice electing to
restore the Premises over a 12 month or longer period. Unless either Landlord or
Tenant elects to terminate this Lease, Landlord shall, subject to receipt of
sufficient insurance
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proceeds (with any deductible to be treated as a current Operating Expense),
promptly restore the Premises (excluding the improvements installed by Tenant or
by Landlord and paid for by Tenant, subject to delays arising from the
collection of insurance proceeds, from Force Majeure events or as needed to
obtain any license, clearance or other authorization of any kind required to
enter into and restore the Premises issued by any governmental or
quasi-governmental agency having jurisdiction over the use, storage, release or
removal of Hazardous Materials (as defined in Section 30) in, on or about the
Premises (collectively referred to herein as "HAZARDOUS MATERIALS CLEARANCES");
provided, however, that if repair or restoration of the Premises is not
substantially complete as of the end of 12 months from the date of damage or
destruction, Landlord may, in its sole and absolute discretion, elect not to
proceed with such repair and restoration, or Tenant may by written notice to
Landlord delivered within 5 business days of the expiration of such 12 month
period, elect to terminate this Lease, in which event Landlord shall be relieved
of its obligation to make such repairs or restoration and this Lease shall
terminate as of the date that is 75 days after the later of: (i) discovery of
such damage or destruction, or (ii) the date all required Hazardous Materials
Clearances are obtained.
Tenant, at its expense, shall promptly perform, subject to delays
arising from the collection of insurance proceeds, from Force Majeure (as
defined in Section 34) events or to obtain Hazardous Material Clearances, all
repairs or restoration not required to be done by Landlord and shall promptly
re-enter the Premises and commence doing business in accordance with this Lease.
Notwithstanding the foregoing, Landlord may terminate this Lease if the Premises
are damaged during the last year of the Term and Landlord reasonably estimates
that it will take more than three months to repair such damage, or if insurance
proceeds are not available for such restoration. Rent shall be abated from the
date all required Hazardous Material Clearances are obtained until the Premises
are repaired and restored, in the proportion which the area of the Premises, if
any, which is not usable by Tenant bears to the total area of the Premises,
unless Landlord provides Tenant with other space during the period of repair
that is suitable for the temporary conduct of Tenant's business. Such abatement
shall be the sole remedy of Tenant, and except as provided herein, Tenant waives
any right to terminate the Lease by reason of damage or casualty loss.
The provisions of this Lease, including this Section 18, constitute an
express agreement between Landlord and Tenant with respect to any and all damage
to, or destruction of, all or any part of the Premises, or any other portion of
the Project, and any statute or regulation which is now or may hereafter be in
effect shall have no application to this Lease or any damage or destruction to
all or any part of the Premises or any other portion of the Project, the parties
hereto expressly agreeing that this Section 18 sets forth their entire
understanding and agreement with respect to such matters.
19 CONDEMNATION. If the whole or any material part of the Premises or
the Project is taken for any public or quasi-public use under governmental law,
ordinance, or regulation, or by right of eminent domain, or by private purchase
in lieu thereof (a "TAKING" or "Taken"), and the Taking would in Landlord's
reasonable judgment either (i) prevent or materially interfere with Tenant's use
of the Premises or (ii) materially interfere with or impair Landlord's ownership
or operation of the Project, then upon written notice by Landlord this Lease
shall terminate and Rent shall be apportioned as of said date. If part of the
Premises shall be Taken, and this Lease is not terminated as provided above,
Landlord shall promptly restore the Premises and the Project as nearly as is
commercially reasonable under the circumstances to their condition prior to such
partial Taking and the rentable square footage of the Building, the rentable
square footage of the Premises, Tenant's Share of Operating Expenses and the
Rent payable hereunder during the unexpired Term shall be reduced to such extent
as may be fair and reasonable under the circumstances. Upon any such Taking,
Landlord shall be entitled to receive the entire price or award from any such
Taking without any payment to Tenant, and Tenant hereby assigns to Landlord
Tenant's interest, if any, in such award. Tenant shall have the right, to the
extent that same shall not diminish Landlord's award, to make a separate claim
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against the condemning authority (but not Landlord) for such compensation as may
be separately awarded or recoverable by Tenant for moving expenses and damage to
Tenant's trade fixtures, if a separate award for such items is made to Tenant.
Tenant hereby waives any and all rights it might otherwise have pursuant to any
provision of state law to terminate this Lease upon a partial Taking of the
Premises or the Project.
20 EVENTS OF DEFAULT. Each of the following events shall be a default
("Default") by Tenant under this Lease:
(a) PAYMENT DEFAULTS. Tenant shall fail to pay any installment of Rent
or any other payment hereunder when due; provided, however, that Landlord will
give Tenant notice and an opportunity to cure any failure to pay Rent within 3
days of any such notice not more than once in any 12 month period and Tenant
agrees that such notice shall be in lieu of and not in addition to, or shall be
deemed to be, any notice required by law.
(b) INSURANCE. Any insurance required to be maintained by Tenant
pursuant to this Lease shall be canceled or terminated or shall expire or shall
be reduced or materially changed, or Landlord shall receive a notice of
nonrenewal of any such insurance and Tenant shall fail to obtain replacement
insurance at least 20 days before the expiration of the current coverage.
(c) ABANDONMENT. Tenant shall abandon the Premises.
(d) IMPROPER TRANSFER. Tenant shall assign, sublease or otherwise
transfer or attempt to transfer all or any portion of Tenant's interest in this
Lease or the Premises except as expressly permitted herein, or Tenant's interest
in this Lease shall be attached, executed upon, or otherwise judicially seized
and such action is not released within 90 days of the action.
(e) LIENS. Tenant shall fail to discharge or otherwise obtain the
release of any lien placed upon the Premises in violation of this Lease within
20 days after any such lien is filed against the Premises.
(f) INSOLVENCY EVENTS. Tenant or any guarantor or surety of Tenant's
obligations hereunder shall: (A) make a general assignment for the benefit of
creditors; (B) commence any case, proceeding or other action seeking to have an
order for relief entered on its behalf as a debtor or to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or of any substantial part of its property (collectively a
"PROCEEDING FOR RELIEF"); (C) become the subject of any Proceeding for Relief
which is not dismissed within 90 days of its filing or entry; or (D) die or
suffer a legal disability (if Tenant, guarantor, or surety is an individual) or
be dissolved or otherwise fail to maintain its legal existence (if Tenant,
guarantor or surety is a corporation, partnership or other entity).
(g) ESTOPPEL CERTIFICATE OR SUBORDINATION AGREEMENT. Tenant fails to
execute any document required from Tenant under Sections 23 or 27 within 5 days
after a second notice requesting such document.
(h) OTHER DEFAULTS. Tenant shall fail to comply with any provision of
this Lease other than those specifically referred to in this Section 20, and,
except as otherwise expressly provided herein, such failure shall continue for a
period of 10 days after written notice thereof from Landlord to Tenant.
Any notice given under Section 20 (h) hereof shall: (i) specify the alleged
default, (ii) demand that Tenant cure such default, (iii) be in lieu of, and not
in addition to, or shall be deemed to be, any notice required under any
provision of applicable law, and (iv) not be deemed a forfeiture or
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a termination of this Lease unless Landlord elects otherwise in such notice;
provided that if the nature of Tenant's default pursuant to Section 20(h) is
such that it cannot be cured by the payment of money and reasonably requires
more than 10 days to cure, then Tenant shall not be deemed to be in default if
Tenant commences such cure within said 10 day period and thereafter diligently
prosecutes the same to completion; provided, however, that such cure shall be
completed no later than 150 days from the date of Landlord's notice.
21 LANDLORD'S REMEDIES.
(a) PAYMENT BY LANDLORD; INTEREST. Upon a Default by Tenant hereunder,
Landlord may, without waiving or releasing any obligation of Tenant hereunder,
make such payment or perform such act. All sums so paid or incurred by Landlord,
together with interest thereon, from the date such sums were paid or incurred,
at the annual rate equal to 12% per annum or the highest rate permitted by law
(the "DEFAULT RATE"), whichever is less, shall be payable to Landlord on demand
as Additional Rent. Nothing herein shall be construed to create or impose a duty
on Landlord to mitigate any damages resulting from Tenant's Default hereunder.
(b) LATE PAYMENT RENT. Late payment by Tenant to Landlord of Rent and
other sums due will cause Landlord to incur costs not contemplated by this
Lease, the exact amount of which will be extremely difficult and impracticable
to ascertain. Such costs include, but are not limited to, processing and
accounting charges and late charges which may be imposed on Landlord under any
Mortgage covering the Premises. Therefore, if any installment of Rent due from
Tenant is not received by Landlord within 5 days after the date such payment is
due, Tenant shall pay to Landlord an additional sum equal to 6% of the overdue
Rent as a late charge. The parties agree that this late charge represents a fair
and reasonable estimate of the costs Landlord will incur by reason of late
payment by Tenant. In addition to the late charge, Rent not paid when due shall
bear interest at the Default Rate from the 5th day after the date due until
paid.
(c) REMEDIES. Upon the occurrence of a Default, Landlord, at its option,
without further notice or demand to Tenant, shall have in addition to all other
rights and remedies provided in this Lease, at law or in equity, the option to
pursue any one or more of the following remedies, each and all of which shall be
cumulative and nonexclusive, without any notice or demand whatsoever.
(i) Terminate this Lease, or at Landlord's option, Tenant's right
to possession only, in which event Tenant shall immediately surrender
the Premises to Landlord, and if Tenant fails to do so, Landlord may,
without prejudice to any other remedy which it may have for possession
or arrearages in rent, enter upon and take possession of the Premises
and expel or remove Tenant and any other person who may be occupying the
Premises or any part thereof, without being liable for prosecution or
any claim or damages therefor;
(ii) Upon any termination of this Lease, whether pursuant to the
foregoing Section 21(c)(i) or otherwise, Landlord may recover from
Tenant the following:
(A) The worth at the time of award of any unpaid rent
which has been earned at the time of such termination; plus
(B) The worth at the time of award of the amount by which
the unpaid rent which would have been earned after termination
until the time of award exceeds the amount of such rental loss
that Tenant proves could have been reasonably avoided; plus
(C) The worth at the time of award of the amount by which
the unpaid
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rent for the balance of the Term after the time of award exceeds
the amount of such rental loss that Tenant proves could have been
reasonably avoided; plus
(D) Any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure to
perform its obligations under this Lease or which in the ordinary
course of things would be likely to result therefrom,
specifically including, but not limited to, brokerage commissions
and advertising expenses incurred, expenses of remodeling the
Premises or any portion thereof for a new tenant, whether for the
same or a different use, and any special concessions made to
obtain a new tenant; and
(E) At Landlord's election, such other amounts in addition
to or in lieu of the foregoing as may be permitted from time to
time by applicable law.
The term "RENT" as used in this Section 21 shall be deemed to be and to
mean all sums of every nature required to be paid by Tenant pursuant to
the terms of this Lease, whether to Landlord or to others. As used in
Sections 21(c)(ii) (A) and (B), above, the "WORTH AT THE TIME OF AWARD"
shall be computed by allowing interest at the Default Rate. As used in
Section 21(c)(ii)(C) above, the "WORTH AT THE TIME OF award" shall be
computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus 1%.
(iii) Landlord may continue this Lease in effect after Tenant's
Default and recover rent as it becomes due (Landlord and Tenant hereby
agreeing that Tenant has the right to sublet or assign hereunder,
subject only to reasonable limitations). Accordingly, if Landlord does
not elect to terminate this Lease following a Default by Tenant,
Landlord may, from time to time, without terminating this Lease, enforce
all of its rights and remedies hereunder, including the right to recover
all Rent as it becomes due.
(iv) Whether or not Landlord elects to terminate this Lease
following a Default by Tenant, Landlord shall have the right to
terminate any and all subleases, licenses, concessions or other
consensual arrangements for possession entered into by Tenant and
affecting the Premises or may, in Landlord's sole discretion, succeed to
Tenant's interest in such subleases, licenses, concessions or
arrangements. Upon Landlord's election to succeed to Tenant's interest
in any such subleases, licenses, concessions or arrangements, Tenant
shall, as of the date of notice by Landlord of such election, have no
further right to or interest in the rent or other consideration
receivable thereunder.
(v) Independent of the exercise of any other remedy of Landlord
hereunder or under applicable law, Landlord may conduct an environmental
test of the Premises as generally described in Section 30(d) hereof, at
Tenant's expense.
(d) EFFECT OF EXERCISE. Exercise by Landlord of any remedies hereunder
or otherwise available shall not be deemed to be an acceptance of surrender of
the Premises and/or a termination of this Lease by Landlord, it being understood
that such surrender and/or termination can be effected only by the express
written agreement of Landlord and Tenant. Any law, usage, or custom to the
contrary notwithstanding, Landlord shall have the right at all times to enforce
the provisions of this Lease in strict accordance with the terms hereof; and the
failure of Landlord at any time to enforce its rights under this Lease strictly
in accordance with same shall not be construed as having created a custom in any
way or manner contrary to the specific terms, provisions, and covenants of this
Lease or as having modified the same and shall not be deemed a waiver of
Landlord's right to enforce one or more of its rights in connection with any
subsequent default. A receipt by Landlord of Rent or other payment with
knowledge of the breach of any covenant hereof shall not be deemed a waiver of
such breach, and no waiver by Landlord of any provision of this Lease shall be
deemed to have been made unless expressed in
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writing and signed by Landlord. To the greatest extent permitted by law, Tenant
waives the service of notice of Landlord's intention to re-enter, re-take or
otherwise obtain possession of the Premises as provided in any statute, or to
institute legal proceedings to that end, and also waives all right of redemption
in case Tenant shall be dispossessed by a judgment or by warrant of any court or
judge. Any reletting of the Premises or any portion thereof shall be on such
terms and conditions as Landlord in its sole discretion may determine. Landlord
shall not be liable for, nor shall Tenant's obligations hereunder be diminished
because of, Landlord's failure to relet the Premises or collect rent due in
respect of such reletting or otherwise to mitigate any damages arising by reason
of Tenant's Default.
22 ASSIGNMENT AND SUBLETTING.
(a) GENERAL PROHIBITION. Without Landlord's prior written consent
subject to and on the conditions described in this Section 22, Tenant shall not,
directly or indirectly, voluntarily or by operation of law, assign this Lease or
sublease the Premises or any part thereof or mortgage, pledge, or hypothecate
its leasehold interest or grant any concession or license within the Premises,
and any attempt to do any of the foregoing shall be void and of no effect.
(b) PERMITTED TRANSFERS. If Tenant desires to assign, sublease,
hypothecate or otherwise transfer this Lease or sublet the Premises other than
pursuant to a Permitted Assignment (as defined below), then at least 15 business
days, but not more than 45 business days, before the date Tenant desires the
assignment or sublease to be effective (the "ASSIGNMENT DATE"), Tenant shall
give Landlord a notice (the "ASSIGNMENT NOTICE") containing such information
about the proposed assignee or sublessee, including the proposed use of the
Premises and any Hazardous Materials proposed to be used or stored in the
Premises, the Assignment Date, any relationship between Tenant and the proposed
assignee or sublessee, and all material terms and conditions of the proposed
assignment or sublease, including a copy of any proposed assignment or sublease
in its final form, and such other information as Landlord may deem reasonably
necessary or appropriate to its consideration whether to grant its consent.
Landlord may, by giving written notice to Tenant within 15 business days after
receipt of the Assignment Notice: (i) grant or refuse such consent, in its sole
discretion with respect to a proposed assignment, hypothecation or other
transfer or subletting of more than (together with all other then effective
subleases) 50% of the Premises, or grant or refuse such consent, in its
reasonable discretion with respect to a proposed subletting of up to (together
with all other then effective subleases) 50% of the Premises (provided that
Landlord shall further have the right to review and approve or disapprove the
proposed form of sublease prior to the effective date of any such subletting),
or (ii) terminate this Lease with respect to the space described in the
Assignment Notice as of the Assignment Date (an "ASSIGNMENT TERMINATION"). If
Landlord elects an Assignment Termination, Tenant shall have the right to
withdraw such Assignment Notice by written notice to Landlord of such election
within 5 days after Landlord's notice electing to exercise the Assignment
Termination. If Tenant withdraws such Assignment Notice, this Lease shall
continue in full force and effect. If Tenant does not withdraw such Assignment
Notice, this Lease, and the term and estate herein granted, shall terminate as
of the Assignment Date with respect to the space described in such Assignment
Notice. No failure of Landlord to exercise any such option to terminate this
Lease shall be deemed to be Landlord's consent to the proposed assignment,
sublease or other transfer. Tenant shall reimburse Landlord for all of
Landlord's reasonable out-of-pocket expenses in connection with its
consideration of any Assignment Notice.
In addition, Tenant shall have the right to assign this Lease, upon
written notice to Landlord but without obtaining Landlord's prior written
consent, to a corporation or other entity which is a successor-in-interest to
Tenant, by way of merger, consolidation or corporate reorganization, or by the
purchase of all or substantially all of the assets or the ownership interests of
the Tenant provided that (i) such merger or consolidation, or such acquisition
or assumption, as the case may be, is for a good business purpose and not
principally for the
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purpose of transferring the Lease, and (ii) the net worth (as determined in
accordance with generally accepted accounting principles ("GAAP")) of the
assignee is not less than the net worth (as determined in accordance with GAAP)
of Tenant as of the date of Tenant's most current quarterly or annual financial
statements, and (iii) such assignee shall agree in writing to assume all of the
terms, covenants and conditions of this Lease arising after the effective date
of the assignment (a "PERMITTED ASSIGNMENT").
(c ADDITIONAL CONDITIONS. As a condition to any such assignment or
subletting, whether or not Landlord's consent is required, Landlord may require:
(i that any assignee or subtenant agree, in writing at the time
of such assignment or subletting, that if Landlord gives such party
notice that Tenant is in default under this Lease, such party shall
thereafter make all payments otherwise due Tenant directly to Landlord,
which payments will be received by Landlord without any liability except
to credit such payment against those due under the Lease, and any such
third party shall agree to attorn to Landlord or its successors and
assigns should this Lease be terminated for any reason; provided,
however, in no event shall Landlord or its successors or assigns be
obligated to accept such attornment; and
(ii A list of Hazardous Materials, certified by the proposed
assignee or sublessee to be true and correct, which the proposed
assignee or sublessee intends to use or store in the Premises together
with copies of all documents relating to the handling, storage, disposal
and emission of Hazardous Materials by the proposed assignee or
subtenant in the Premises or on the Project, prior to the proposed
assignment or subletting, including, without limitation: permits;
approvals; reports and correspondence; storage and management plans;
plans relating to the installation of any storage tanks to be installed
in or under the Project (provided, said installation of tanks shall only
be permitted after Landlord has given its written consent to do so,
which consent may be withheld in Landlord's sole and absolute
discretion); and all closure plans or any other documents required by
any and all federal, state and local governmental agencies and
authorities for any storage tanks installed in, on or under the Project
for the closure of any such tanks. Neither Tenant nor any such proposed
assignee or subtenant is required, however, to provide Landlord with any
portion(s) of the such documents containing information of a proprietary
nature which, in and of themselves, do not contain a reference to any
Hazardous Materials or hazardous activities.
(d NO RELEASE OF TENANT, SHARING OF EXCESS RENTS. Notwithstanding any
assignment or subletting, Tenant and any guarantor or surety of Tenant's
obligations under this Lease shall at all times remain fully and primarily
responsible and liable for the payment of Rent and for compliance with all of
Tenant's other obligations under this Lease. If the Rent due and payable by a
sublessee or assignee (or a combination of the rental payable under such
sublease or assignment plus any bonus or other consideration therefor or
incident thereto) exceeds the rental payable under this Lease, (excluding
however, any Rent payable under this Section), then Tenant shall be bound and
obligated to pay Landlord as Additional Rent hereunder 50% (or 40% with respect
to any assignment or subletting of any portion of the Lucent Space as to which a
Restoration Deposit has been made) of such excess rental and other excess
consideration within 10 days following receipt thereof by Tenant. If Tenant
shall sublet the Premises or any part thereof, Tenant hereby immediately and
irrevocably assigns to Landlord, as security for Tenant's obligations under this
Lease, all rent from any such subletting, and Landlord as assignee and as
attorney-in-fact for Tenant, or a receiver for Tenant appointed on Landlord's
application, may collect such rent and apply it toward Tenant's obligations
under this Lease; except that, until the occurrence of a Default, Tenant shall
have the right to collect such rent.
(e NO WAIVER. The consent by Landlord to an assignment or subletting
shall not
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relieve Tenant or any assignees of this Lease or any sublessees of the Premises
from obtaining the consent of Landlord to any further assignment or subletting
nor shall it release Tenant or any assignee or sublessee of Tenant from full and
primary liability under the Lease. The acceptance of Rent hereunder, or the
acceptance of performance of any other term, covenant, or condition thereof,
from any other person or entity shall not be deemed to be a waiver of any of the
provisions of this Lease or a consent to any subletting, assignment or other
transfer of the Premises.
(f PRIOR CONDUCT OF PROPOSED TRANSFEREE. Notwithstanding any other
provision of this Section 22, if (i) the proposed assignee or sublessee of
Tenant has been required by any prior landlord, lender or Governmental Authority
to take remedial action in connection with Hazardous Materials contaminating a
property, where the contamination resulted from such party's action or use of
the property in question, or (ii) the proposed assignee or sublessee is subject
to an enforcement order issued by any governmental authority in connection with
the use, disposal or storage of Hazardous Materials, Landlord shall have the
absolute right to refuse to consent to any assignment or subletting to any such
party.
23. ESTOPPEL CERTIFICATE. Tenant shall, within 10 business days of
written notice from Landlord, execute, acknowledge and deliver a statement in
writing substantially in the form attached to this Lease as EXHIBIT G with the
blanks filled in, or on any other form reasonably requested by a proposed lender
or purchaser, (i) certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and certifying
that this Lease as so modified is in full force and effect) and the dates to
which the rental and other charges are paid in advance, if any, (ii)
acknowledging that there are not any uncured defaults on the part of Landlord
hereunder, or specifying such defaults if any are claimed, and (iii) setting
forth such further information with respect to the status of this Lease or the
Premises as may be requested thereon. Any such statement may be relied upon by
any prospective purchaser or encumbrancer of all or any portion of the real
property of which the Premises are a part. Tenant's failure to deliver such
statement within such time shall, at the option of Landlord, constitute a
Default under this Lease, and, in any event, shall be conclusive upon Tenant
that the Lease is in full force and effect and without modification except as
may be represented by Landlord in any certificate prepared by Landlord and
delivered to Tenant for execution.
24. QUIET ENJOYMENT. So long as Tenant shall perform all of the
covenants and agreements herein required to be performed by Tenant, Tenant
shall, subject to the terms of this Lease, at all times during the Term, have
peaceful and quiet enjoyment of the Premises against any person claiming by,
through or under Landlord.
25. PRORATIONS. All prorations required or permitted to be made
hereunder shall be made on the basis of a 360 day year and 30 day months.
26. RULES AND REGULATIONS. Tenant shall, at all times during the Term
and any extension thereof, comply with all reasonable rules and regulations at
any time or from time to time established by Landlord covering use of the
Premises and the Project. The current rules and regulations are attached hereto
as EXHIBIT E. If there is any conflict between said rules and regulations and
other provisions of this Lease, the terms and provisions of this Lease shall
control. Landlord shall not have any liability or obligation for the breach of
any rules or regulations by other tenants in the Project and shall not enforce
such rules and regulations in a discriminatory manner.
27. SUBORDINATION. This Lease and Tenant's interest and rights hereunder
are and shall be subject and subordinate at all times to the lien of any
Mortgage now existing or hereafter created on or against the Project or the
Premises, and all amendments, restatements, renewals, modifications,
consolidations, refinancing, assignments and extensions thereof, without the
necessity of any further instrument or act on the part of Tenant; provided,
however that so long
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as there is no Default hereunder, Tenant's right to possession of the Premises
shall not be disturbed by the Holder of any such Mortgage. Tenant agrees, at the
election of the Holder of any such Mortgage, to attorn to any such Holder.
Tenant agrees upon demand to execute, acknowledge and deliver a Subordination,
Non-disturbance and Attornment Agreement in substantially the form attached
hereto as EXHIBIT H, or such other instruments, confirming such subordination,
and such instruments of attornment as shall be requested by any such Holder,
provided any such instruments contain appropriate non-disturbance provisions
assuring Tenant's quiet enjoyment of the Premises as set forth in Section 24
hereof. Notwithstanding the foregoing, any such Holder may at any time
subordinate its Mortgage to this Lease, without Tenant's consent, by notice in
writing to Tenant, and thereupon this Lease shall be deemed prior to such
Mortgage without regard to their respective dates of execution, delivery or
recording and in that event such Holder shall have the same rights with respect
to this Lease as though this Lease had been executed prior to the execution,
delivery and recording of such Mortgage and had been assigned to such Holder.
The term "MORTGAGE" whenever used in this Lease shall be deemed to include deeds
of trust, security assignments and any other encumbrances, and any reference to
the "HOLDER" of a Mortgage shall be deemed to include the beneficiary under a
deed of trust.
28. SURRENDER. Upon expiration of the Term or earlier termination of
Tenant's right of possession, Tenant shall surrender the Premises to Landlord in
the same condition as received, subject to any Alterations permitted by Landlord
to remain in the Premises, free of Hazardous Materials brought upon, kept or
used in or about the Premises by any person other than Landlord, its agents,
employees, contractors or invitees (or Hazardous Materials brought upon, kept or
used in or about the Project by Tenant or any of its agents, employees,
contractors or invitees) and released of all Hazardous Materials Clearances,
broom clean, ordinary wear and tear and casualty loss and condemnation covered
by Sections 18 and 19 excepted. Tenant shall immediately return to Landlord all
keys and/or access cards to parking, the Project, restrooms or all or any
portion of the Premises furnished to or otherwise procured by Tenant. If any
such access card or key is lost, Tenant shall pay to Landlord, at Landlord's
election, either the cost of replacing such lost access card or key or the cost
of reprogramming the access security system in which such access card was used
or changing the lock or locks opened by such lost key. Any Tenant's Property,
Alterations and property not so removed by Tenant as permitted or required
herein shall be deemed abandoned and may be stored, removed, and disposed of by
Landlord at Tenant's expense, and Tenant waives all claims against Landlord for
any damages resulting from Landlord's retention and/or disposition of such
property. All obligations of Tenant hereunder not fully performed as of the
termination of the Term, including the obligations of Tenant under Section 30
hereof, shall survive the expiration or earlier termination of the Term,
including, without limitation, indemnity obligations, payment obligations with
respect to Rent and obligations concerning the condition and repair of the
Premises.
29. WAIVER OF JURY TRIAL. TENANT AND LANDLORD WAIVE ANY RIGHT TO TRIAL
BY JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD AND TENANT ARISING OUT OF THIS
LEASE OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
30. ENVIRONMENTAL REQUIREMENTSENVIRONMENTAL REQUIREMENTSENVIRONMENTAL
REQUIREMENTS.
(a PROHIBITION/COMPLIANCE/INDEMNITY. Tenant shall not cause or permit
any Hazardous Materials (as hereinafter defined) to be brought upon, kept or
used in or about the Premises or the Project in violation of applicable law by
Tenant, its agents, employees, contractors or invitees. If Tenant breaches the
obligation stated in the preceding sentence, or if the presence of Hazardous
Materials in the Premises during the Term or any holding over
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results in contamination of the Premises, the Project or any adjacent property
or if contamination of the Premises, the Project or any adjacent property by
Hazardous Materials brought into the Premises by anyone other than Landlord and
Landlord's employees, agents and contractors otherwise occurs during the Term or
any holding over, Tenant hereby indemnifies and shall defend and hold Landlord,
its officers, directors, employees, agents and contractors harmless from any and
all claims, judgments, damages, penalties, fines, costs, liabilities, or losses
(including, without limitation, diminution in value of the Premises or any
portion of the Project, damages for the loss or restriction on use of rentable
or usable space or of any amenity of the Premises or the Project, damages
arising from any adverse impact on marketing of space in the Premises or the
Project, and sums paid in settlement of claims, attorneys' fees, consultant fees
and expert fees) which arise during or after the Term as a result of such
contamination. This indemnification of Landlord by Tenant includes, without
limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal, or restoration work required by
any federal, state or local governmental agency or political subdivision because
of Hazardous Materials present in the air, soil or ground water above, on, or
under the Premises. Without limiting the foregoing, if the presence of any
Hazardous Materials on the Premises, the Project or any adjacent property caused
or permitted by Tenant results in any contamination of the Premises, the Project
or any adjacent property, Tenant shall promptly take all actions at its sole
expense and in accordance with applicable law as are necessary to return the
Premises, the Project or any adjacent property as nearly as economically
practicable to the condition existing prior to the time of such contamination,
but in no event leaving more residual contamination than permitted by law,
provided that Landlord's approval of such action shall first be obtained, which
approval shall not unreasonably be withheld so long as such actions would not
potentially have any material adverse long-term or short-term effect on the
Premises or the Project.
(b BUSINESS. Landlord acknowledges that it is not the intent of this
Section 30 to prohibit Tenant from using the Premises for the Permitted Use.
Tenant may operate its business according to the custom of the industry so long
as the use or presence of Hazardous Materials is strictly and properly monitored
according to all then applicable governmental requirements. As a material
inducement to Landlord to allow Tenant to use Hazardous Materials in connection
with its business, Tenant agrees to deliver to Landlord prior to the
Commencement Date, a list identifying each type of Hazardous Materials to be
present on the Premises and setting forth any and all governmental approvals or
permits required in connection with the presence of such Hazardous Materials on
the Premises ("HAZARDOUS MATERIALS LIST"). Tenant shall deliver to Landlord an
updated Hazardous Materials List at least once a year and shall also deliver an
updated list before any new Hazardous Material is brought onto the Premises.
Tenant shall deliver to Landlord true and correct copies of the following
documents (the "HAZ MAT DOCUMENTS") relating to the handling, use, storage,
disposal and emission of Hazardous Materials prior to the Commencement Date, or
if unavailable at that time, concurrent with the receipt from or submission to a
governmental agency: permits; approvals; reports and correspondence; storage and
management plans, notice of violations of any laws; plans relating to the
installation of any storage tanks to be installed in or under the Project
(provided, said installation of tanks shall only be permitted after Landlord has
given Tenant its written consent to do so, which consent may be withheld in
Landlord's sole and absolute discretion); and all closure plans or any other
documents required by any and all federal, state and local governmental agencies
and authorities for any storage tanks installed in, on or under the Project for
the closure of any such tanks. Tenant is not required, however, to provide
Landlord with any portion(s) of the Haz Mat Documents containing information of
a proprietary nature which, in and of themselves, do not contain a reference to
any Hazardous Materials or hazardous activities. It is not the intent of this
Section to provide Landlord with information which could be detrimental to
Tenant's business should such information become possessed by Tenant's
competitors.
(c TENANT REPRESENTATION AND WARRANTY. Tenant hereby represents and
warrants to Landlord that (i) neither Tenant nor any of its legal predecessors
has been required by any
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prior landlord, lender or governmental authority at any time to take remedial
action in connection with Hazardous Materials contaminating a property which
contamination was permitted by Tenant of such predecessor or resulted from
Tenant's or such predecessor's action or use of the property in question, and
(ii) Tenant is not subject to any enforcement order issued by any governmental
authority in connection with the use, disposal or storage of a Hazardous
Materials. If Landlord determines that this representation and warranty was not
true as of the date of this lease, Landlord shall have the right to terminate
this Lease in Landlord's sole and absolute discretion.
(d TESTING. Landlord shall have the right to conduct annual tests of the
Premises to determine whether any contamination has occurred as a result of
Tenant's use. Tenant shall be required to pay the cost of such annual test of
the Premises; provided, however, that if Tenant conducts its own tests of the
Premises using third party contractors and test procedures acceptable to
Landlord which tests are certified to Landlord, Landlord shall accept such tests
in lieu of the annual tests to be paid for by Tenant. In addition, at any time,
and from time to time pursuant to Section 32, prior to the expiration or earlier
termination of the Term, Landlord shall have the right to conduct appropriate
tests of the Premises and the Project to determine if contamination has occurred
as a result of Tenant's use of the Premises. If contamination has occurred for
which Tenant is liable under this Section 30, Tenant shall pay all costs to
conduct such tests. If no such contamination is found, Landlord shall pay the
costs of such tests (which shall not constitute an Operating Expense). Landlord
shall provide Tenant with a copy of all third party, non-confidential reports
and tests of the Premises made by or on behalf of Landlord during the Term
without representation or warranty and subject to a confidentiality agreement.
Landlord's receipt of or satisfaction with any environmental assessment in no
way waives any rights which Landlord may have against Tenant.
(e UNDERGROUND TANKS. If underground or other storage tanks storing
Hazardous Materials located on the Premises or the Project are used by Tenant or
are hereafter placed on the Premises or the Project by Tenant, Tenant shall
monitor such storage tanks, maintain appropriate records, implement reporting
procedures, properly close any underground storage tanks, and take or cause to
be taken all other actions necessary or required under applicable state and
federal law, as such now exists or may hereafter be adopted or amended in
connection with the use, maintenance, operation and closure of such storage
tanks.
(f TENANT'S OBLIGATIONS. Tenant's obligations under this Section 30
shall survive the expiration or earlier termination of the Lease. During any
period of time after the expiration or earlier termination of this Lease
required by Tenant or Landlord to complete the removal from the Premises of any
Hazardous Materials as required pursuant to Tenant's obligations hereunder and
the release and termination of any licenses or permits held by Tenant or any
person claiming by or through Tenant restricting the use of the Premises, Tenant
shall continue to pay the full Rent in accordance with this Lease for any
portion of the Premises not relet by Landlord in Landlord's sole discretion,
which Rent shall be prorated daily.
(g DEFINITIONS. As used herein, the term "ENVIRONMENTAL REQUIREMENTS"
means all applicable present and future statutes, regulations, ordinances,
rules, codes, judgments, orders or other similar enactments of any governmental
authority or agency regulating or relating to health, safety, or environmental
conditions on, under, or about the Premises or the Project, or the environment,
including without limitation, the following: the Comprehensive Environmental
Response, Compensation and Liability Act; the Resource Conservation and Recovery
Act; and all state and local counterparts thereto, and any regulations or
policies promulgated or issued thereunder. As used herein, the term "HAZARDOUS
MATERIALS" means and includes any substance, material, waste, pollutant, or
contaminant listed or defined as hazardous or toxic, or regulated by reason of
its impact or potential impact on humans, animals and/or the environment under
any Environmental Requirements, asbestos and petroleum, including crude oil or
any fraction thereof, natural gas liquids, liquefied natural gas, or synthetic
gas usable for fuel (or
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mixtures of natural gas and such synthetic gas). As defined in Environmental
Requirements, Tenant is and shall be deemed to be the "operator" of Tenant's
"facility" and the "owner" of all Hazardous Materials brought on the Premises by
Tenant, its agents, employees, contractors or invitees, and the wastes,
by-products, or residues generated, resulting, or produced therefrom.
31. TENANT'S REMEDIES/LIMITATION OF LIABILITY. Landlord shall not be in
default hereunder unless Landlord fails to perform any of its obligations
hereunder within 30 days after written notice from Tenant specifying such
failure (unless such performance will, due to the nature of the obligation,
require a period of time in excess of 30 days, then after such period of time as
is reasonably necessary). Upon any default by Landlord, Tenant shall give notice
by registered or certified mail to any Holder of a Mortgage covering the
Premises and to any landlord of any lease of property in or on which the
Premises are located and Tenant shall offer such Holder and/or landlord a
reasonable opportunity to cure the default, including time to obtain possession
of the Project by power of sale or a judicial action if such should prove
necessary to effect a cure; provided Landlord shall have furnished to Tenant in
writing the names and addresses of all such persons who are to receive such
notices. All obligations of Landlord hereunder shall be construed as covenants,
not conditions; and, except as may be otherwise expressly provided in this
Lease, Tenant may not terminate this Lease for breach of Landlord's obligations
hereunder.
Notwithstanding the foregoing, if any claimed Landlord default hereunder
will immediately, materially and adversely affect Tenant's ability to conduct
its business in the Premises (a "MATERIAL LANDLORD DEFAULT"), Tenant shall, as
soon as reasonably possible, but in any event within 2 business days of
obtaining knowledge of such claimed Material Landlord Default, give Landlord
written notice of such claim and telephonic notice to Tenant's principal contact
with Landlord. Landlord shall then have 2 business days to commence cure of such
claimed Material Landlord Default and shall diligently prosecute such cure to
completion. If such claimed Material Landlord Default is not a default by
Landlord hereunder, or if Tenant failed to give Landlord the notice required
hereunder within 2 business days of learning of the conditions giving rise to
the claimed Material Landlord Default, Landlord shall be entitled to recover
from Tenant, as Additional Rent, any costs incurred by Landlord in connection
with such cure in excess of the costs, if any, that Landlord would otherwise
have been liable to pay hereunder. If Landlord fails to commence cure of any
claimed Material Landlord Default as provided above, Tenant may commence and
prosecute such cure to completion, and shall be entitled to recover the costs of
such cure (but not any consequential or other damages) from Landlord, to the
extent of Landlord's obligation to cure such claimed Material Landlord Default
hereunder, subject to the limitations set forth in the immediately preceding
sentence of this paragraph and the other provisions of this Lease.
All obligations of Landlord under this Lease will be binding upon
Landlord only during the period of its ownership of the Premises and not
thereafter. The term "LANDLORD" in this Lease shall mean only the owner for the
time being of the Premises. Upon the transfer by such owner of its interest in
the Premises, such owner shall thereupon be released and discharged from all
obligations of Landlord thereafter accruing, but such obligations shall be
binding during the Term upon each new owner for the duration of such owner's
ownership.
32. INSPECTION AND ACCESS. Landlord and its agents, representatives, and
contractors may enter the Premises at any reasonable time on not less than 48
hours advance written notice (except in the case of emergencies in which case no
such notice shall be required and such entry may be at any time) (i) to inspect
the Premises, (ii) to make such repairs as may be required or permitted pursuant
to this Lease and (iii) for any other business purpose. Landlord and Landlord's
representatives may enter the Premises during business hours for the purpose of
effecting any such repairs, inspecting the Premises, showing the Premises to
prospective purchasers and, during the last year of the Term, to prospective
tenants or for any other business purpose. Landlord may erect a suitable sign on
the Premises stating the
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Premises are available to let or that the Project is available for sale.
Landlord may grant easements, make public dedications, designate Common Areas
and create restrictions on or about the Premises, provided that no such
easement, dedication, designation or restriction materially, adversely affects
Tenant's use or occupancy of the Premises for the Permitted use. At Landlord's
request, Tenant shall execute such instruments as may be necessary for such
easements, dedications or restrictions. Tenant shall at all times, except in the
case of emergencies, have the right to escort Landlord or its agents,
representatives, contractors or guests while the same are in the Premises,
provided such escort does not materially and adversely affect Landlord's access
rights hereunder.
33. SECURITY. Tenant acknowledges and agrees that security devices and
services, if any, while intended to deter crime may not in given instances
prevent theft or other criminal acts and that Landlord is not providing any
security services with respect to the Premises. Tenant agrees that Landlord
shall not be liable to Tenant for, and Tenant waives any claim against Landlord
with respect to, any loss by theft or any other damage suffered or incurred by
Tenant in connection with any unauthorized entry into the Premises or any other
breach of security with respect to the Premises. Tenant shall be solely
responsible for the personal safety of Tenant's officers, employees, agents,
contractors, guests and invitees while any such person is in, on or about the
Premises and/or the Project. Tenant shall at Tenant's cost obtain insurance
coverage to the extent Tenant desires protection against such criminal acts.
34. FORCE MAJEURE. Neither Landlord nor Tenant shall be held responsible
for delays in the performance of its obligations hereunder (other than
obligations which may be performed by the payment of any sum) when caused by
strikes, lockouts, labor disputes, weather, natural disasters, inability to
obtain labor or materials or reasonable substitutes therefor, governmental
restrictions, governmental regulations, governmental controls, delay in issuance
of permits, enemy or hostile governmental action, civil commotion, fire or other
casualty, and other causes beyond the reasonable control of such party ("FORCE
MAJEURE").
35. BROKERS, ENTIRE AGREEMENT, AMENDMENT. Landlord and Tenant each
represents and warrants that it has not dealt with any broker, agent or other
person (collectively, "BROKER) in connection with this transaction and that no
Broker brought about this transaction, other than COLLIERS INTERNATIONAL.
Landlord and Tenant each hereby agree to indemnify and hold the other harmless
from and against any claims by any Broker, other than the broker, if any named
in this Section 35, claiming a commission or other form of compensation by
virtue of having dealt with Tenant or Landlord, as applicable, with regard to
this leasing transaction. This Lease may not be amended except by an instrument
in writing signed by both parties hereto.
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36. LIMITATION ON LANDLORD'S LIABILITY. NOTWITHSTANDING ANYTHING SET
FORTH HEREIN OR IN ANY OTHER AGREEMENT BETWEEN LANDLORD AND TENANT TO THE
CONTRARY: (A) LANDLORD SHALL NOT BE LIABLE TO TENANT OR ANY OTHER PERSON FOR
(AND TENANT AND EACH SUCH OTHER PERSON ASSUME ALL RISK OF) LOSS, DAMAGE OR
INJURY, WHETHER ACTUAL OR CONSEQUENTIAL TO: TENANT'S PERSONAL PROPERTY OF EVERY
KIND AND DESCRIPTION, INCLUDING, WITHOUT LIMITATION TRADE FIXTURES, EQUIPMENT,
INVENTORY, SCIENTIFIC RESEARCH, SCIENTIFIC EXPERIMENTS, LABORATORY ANIMALS,
PRODUCT, SPECIMENS, SAMPLES, AND/OR SCIENTIFIC, BUSINESS, ACCOUNTING AND OTHER
RECORDS OF EVERY KIND AND DESCRIPTION KEPT AT THE PREMISES AND ANY AND ALL
INCOME DERIVED OR DERIVABLE THEREFROM; (B) THERE SHALL BE NO PERSONAL RECOURSE
TO LANDLORD FOR ANY ACT OR OCCURRENCE IN, ON OR ABOUT THE PREMISES OR ARISING IN
ANY WAY UNDER THIS LEASE OR ANY OTHER AGREEMENT BETWEEN LANDLORD AND TENANT WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND ANY LIABILITY OF LANDLORD HEREUNDER
SHALL BE STRICTLY LIMITED SOLELY TO LANDLORD'S INTEREST IN THE PROJECT; AND (C)
IN NO EVENT SHALL ANY PERSONAL LIABILITY BE ASSERTED AGAINST LANDLORD IN
CONNECTION WITH THIS LEASE NOR SHALL ANY RECOURSE BE HAD TO ANY OTHER PROPERTY
OR ASSETS OF LANDLORD OR ANY OF LANDLORD'S OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS OR CONTRACTORS. UNDER NO CIRCUMSTANCES SHALL LANDLORD OR ANY OF
LANDLORD'S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR CONTRACTORS BE LIABLE FOR
INJURY TO TENANT'S BUSINESS OR FOR ANY LOSS OF INCOME OR PROFIT THEREFROM.
37. SEVERABILITY. If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws, then and in that event,
it is the intention of the parties hereto that the remainder of this Lease shall
not be affected thereby. It is also the intention of the parties to this Lease
that in lieu of each clause or provision of this Lease that is illegal, invalid
or unenforceable, there be added, as a part of this Lease, a clause or provision
as similar in effect to such illegal, invalid or unenforceable clause or
provision as shall be legal, valid and enforceable.
38. SIGNS; EXTERIOR APPEARANCESIGNS; EXTERIOR APPEARANCESIGNS; EXTERIOR
Appearance. Tenant shall not, without the prior written consent of Landlord,
which may be granted or withheld in Landlord's sole discretion: (i) attach any
awnings, exterior lights, decorations, balloons, flags, pennants, banners,
painting or other projection to any outside wall of the Project, (ii) use any
curtains, blinds, shades or screens other than Landlord's standard window
coverings, (iii) coat or otherwise sunscreen the interior or exterior of any
windows, (iv) place any bottles, parcels, or other articles on the window sills,
(v) place any equipment, furniture or other items of personal property on any
exterior balcony, or (vi) paint, affix or exhibit on any part of the Premises or
the Project any signs, notices, window or door lettering, placards, decorations,
or advertising media of any type which can be viewed from the exterior of the
Premises. Interior signs on doors and the directory tablet shall be inscribed,
painted or affixed for Tenant by Landlord at the sole cost and expense of
Tenant, and shall be of a size, color and type acceptable to Landlord. Nothing
may be placed on the exterior of corridor walls or corridor doors other than
Landlord's standard lettering. The directory tablet shall be provided
exclusively for the display of the name and location of tenants.
39. RIGHT TO EXTEND TERM. Tenant shall have the right to extend the Term
of the Lease upon the following terms and conditions:
(a EXTENSION RIGHTS. Tenant shall have the right (the "EXTENSION RIGHT")
to extend the term of this Lease for five years (the "EXTENSION TERM") on the
same terms and conditions as this Lease (other than Base Rent) by giving
Landlord written notice of its election to exercise each Extension Right at
least 6 months prior to the expiration of the Base Term of the Lease or
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the expiration of any prior Extension Term. Upon the commencement of any
Extension Term, Base Rent shall be payable at the Market Rate (as defined
below). Base Rent shall thereafter be adjusted on each annual anniversary of the
commencement of such Extension Term by a percentage as determined by Landlord
and agreed to by Tenant at the time the Market Rate is determined. As used
herein, "MARKET RATE" shall mean the then market rental rate as determined by
Landlord and agreed to by Tenant, which shall in no event be less than the Base
Rent payable as of the date immediately preceding the commencement of such
Extension Term increased by the Rent Adjustment Percentage multiplied by such
Base Rent.
If, on or before the date which is 120 days prior to the expiration of
the Base Term of this Lease, or the expiration of any prior Extension Term,
Tenant has not agreed with Landlord's determination of the Market Rate and the
rent escalations during such subsequent Extension Term after negotiating in good
faith, Tenant may by written notice to Landlord not later than 120 days prior to
the expiration of the Base Term of this Lease, or the expiration of any then
effective Extension Term, elect arbitration as described in Section 39(b) below.
If Tenant does not elect such arbitration, Tenant shall be deemed to have waived
any right to extend, or further extend, the Term of the Lease and all of the
remaining Extension Rights shall terminate.]
(b ARBITRATION
(i Within 10 days of Tenant's notice to Landlord of its election
to arbitrate Market Rate and escalations, each party shall deliver to
the other a proposal containing the Market Rate and escalations that the
submitting party believes to be correct ("EXTENSION PROPOSAL"). If
either party fails to timely submit an Extension Proposal, the other
party's submitted proposal shall determine the Base Rent and escalations
for the Extension Term. If both parties submit Extension Proposals, then
Landlord and Tenant shall meet within 7 days after delivery of the last
Extension Proposal and make a good faith attempt to mutually appoint a
single Arbitrator (and defined below) to determine the Market Rate and
escalations. If Landlord and Tenant are unable to agree upon a single
Arbitrator, then each shall, by written notice delivered to the other
within 10 days after the meeting, select an Arbitrator. If either party
fails to timely give notice of its selection for an Arbitrator, the
other party's submitted proposal shall determine the Base Rent for the
Extension Term. The 2 Arbitrators so appointed shall, within 5 business
days after their appointment, appoint a third Arbitrator. If the 2
Arbitrators so selected cannot agree on the selection of the third
Arbitrator within the time above specified, then either party, on behalf
of both parties, may request such appointment of such third Arbitrator
by application to any state court of general jurisdiction in the
jurisdiction in which the Premises are located, upon 10 days prior
written notice to the other party of such intent.
(ii The decision of the Arbitrator(s) shall be made within 30
days after the appointment of a single Arbitrator or the third
Arbitrator, as applicable. The decision of the single Arbitrator shall
be final and binding upon the parties. The average of the two closest
Arbitrators in a three Arbitrator panel shall be final and binding upon
the parties. Each party shall pay the fees and expenses of the
Arbitrator appointed by or on behalf of such party and the fees and
expenses of the third Arbitrator shall be borne equally by both parties.
If the Market Rate and escalations are not determined by the first day
of the Extension Term, then Tenant shall pay Landlord Base Rent in an
amount equal to the Base Rent in effect immediately prior to the
Extension Term and increased by the Rent Adjustment Percentage until
such determination is made. After the determination of the Market Rate
and escalations, the parties shall make any necessary adjustments to
such payments made by Tenant. Landlord and Tenant shall then execute an
amendment recognizing the Market Rate and escalations for the Extension
Term.
(iii An "ARBITRATOR" shall be any person appointed by or on
behalf of either party or appointed pursuant to the provisions hereof
and: (i) shall be (A) a member of the
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American Institute of Real Estate Appraisers with not less than 10 years
of experience in the appraisal of improved office and high tech
industrial real estate in the greater Alameda, California metropolitan
area, or (B) a licensed commercial real estate broker with not less than
15 years experience representing landlords and/or tenants in the leasing
of high tech or life sciences space in the greater Alameda, California
metropolitan area, (ii) devoting substantially all of their time to
professional appraisal or brokerage work, as applicable, at the time of
appointment and (iii) be in all respects impartial and disinterested.
(c RIGHTS PERSONAL. Extension Rights are personal to Tenant and are not
assignable without Landlord's consent, which may be granted or withheld in
Landlord's sole discretion separate and apart from any consent by Landlord to an
assignment of Tenant's interest in the Lease, except that they may be assigned
in connection with any Permitted Assignment of this Lease.
(d EXCEPTIONS. Notwithstanding anything set forth above to the contrary,
Extension Rights shall not be in effect and Tenant may not exercise any of the
Extension Rights:
(i during any period of time that Tenant is in Default under any
provision of this Lease; or
(ii if Tenant has been in Default under any provision of this
Lease 3 or more times, whether or not the Defaults are cured, during the
12 month period immediately prior to the date that Tenant intends to
exercise an Extension Right, whether or not the Defaults are cured.
(e NO EXTENSIONS. The period of time within which any Extension Rights
may be exercised shall not be extended or enlarged by reason of the Tenant's
inability to exercise the Extension Rights.
(f TERMINATION. The Extension Rights shall terminate and be of no
further force or effect even after Tenant's due and timely exercise of an
Extension Right, if, after such exercise, but prior to the commencement date of
an Extension Term, (i) Tenant fails to timely cure any default by Tenant under
this Lease; or (ii) Tenant has Defaulted 3 or more times during the period from
the date of the exercise of an Extension Right to the date of the commencement
of the Extension Term, whether or not such Defaults are cured.
40. MISCELLANEOUS.
(a NOTICES. All notices or other communications between the parties
shall be in writing and shall be deemed duly given upon delivery or refusal to
accept delivery by the addressee thereof if delivered in person, or upon actual
receipt if delivered by reputable overnight guaranty courier, addressed and sent
to the parties at their addresses set forth above. Landlord and Tenant may from
time to time by written notice to the other designate another address for
receipt of future notices.
(b JOINT AND SEVERAL LIABILITY. If and when included within the term
"TENANT," as used in this instrument, there is more than one person or entity,
each shall be jointly and severally liable for the obligations of Tenant.
(c RECORDATION. Neither this Lease nor a memorandum of lease shall be
filed by or on behalf of Tenant in any public record. Landlord may prepare and
file, and upon request by Landlord Tenant will execute, a memorandum of lease.
(d INTERPRETATION. The normal rule of construction to the effect that
any ambiguities
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are to be resolved against the drafting party shall not be employed in the
interpretation of this Lease or any exhibits or amendments hereto. Words of any
gender used in this Lease shall be held and construed to include any other
gender, and words in the singular number shall be held to include the plural,
unless the context otherwise requires. The captions inserted in this Lease are
for convenience only and in no way define, limit or otherwise describe the scope
or intent of this Lease, or any provision hereof, or in any way affect the
interpretation of this Lease.
(e NOT BINDING UNTIL EXECUTED. The submission by Landlord to Tenant of
this Lease shall have no binding force or effect, shall not constitute an option
for the leasing of the Premises, nor confer any right or impose any obligations
upon either party until execution of this Lease by both parties.
(f LIMITATIONS ON INTEREST. It is expressly the intent of Landlord and
Tenant at all times to comply with applicable law governing the maximum rate or
amount of any interest payable on or in connection with this Lease. If
applicable law is ever judicially interpreted so as to render usurious any
interest called for under this Lease, or contracted for, charged, taken,
reserved, or received with respect to this Lease, then it is Landlord's and
Tenant's express intent that all excess amounts theretofore collected by
Landlord be credited on the applicable obligation (or, if the obligation has
been or would thereby be paid in full, refunded to Tenant), and the provisions
of this Lease immediately shall be deemed reformed and the amounts thereafter
collectible hereunder reduced, without the necessity of the execution of any new
document, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder.
(g CHOICE OF LAW. Construction and interpretation of this Lease shall be
governed by the internal laws of the state in which the Premises are located,
excluding any principles of conflicts of laws.
(h TIME. Time is of the essence as to the performance of Tenant's
obligations under this Lease.
(i INCORPORATION BY REFERENCE. All exhibits and addenda attached hereto
are hereby incorporated into this Lease and made a part hereof. If there is any
conflict between such exhibits or addenda and the terms of this Lease, such
exhibits or addenda shall control.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
TENANT:
AVIGEN, INC.,
a Delaware corporation
By: /s/ John Monahan
------------------------------------
Its: CEO / President
------------------------------------
LANDLORD:
ARE- 1201 HARBOR BAY, LLC,
a Delaware limited liability company
BY: ARE-QRS CORP.,
a Maryland corporation
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By: /s/ Laurie A. Allen
------------------------------------
Its: Senior Vice President, Business
Development & Legal Affairs
------------------------------------
[NOTARY SEAL]
1
<PAGE> 31
EXHIBIT A TO LEASE
DESCRIPTION OF PREMISES
[A graphic depicting the floor plan of the building located at 1201 Harbor Way,
depicting proposed tenant occupation.]
1
<PAGE> 32
EXHIBIT B TO LEASE
DESCRIPTION OF PROJECT
PARCEL ONE:
PARCEL ONE, PARCEL MAP 4124, FILED SEPTEMBER 13, 1983, MAP BOOK 141, PAGE 8,
ALAMEDA COUNTY RECORDS.
PARCEL TWO:
RIGHTS RESERVED IN THE GRANT OF EASEMENT TO THE CITY OF ALAMEDA, RECORDED MARCH
19, 1982. SERIES 82-039799, OFFICIAL RECORDS.
RESERVING THEREFROM:
RESERVING TO THE GRANTOR AND ITS SUCCESSORS AND ASSIGNS, ALL OVERLYING AND OTHER
WATER RIGHTS, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO APPROPRIATE WATER AND
DISTRIBUTE IT TO OTHER PROPERTIES WITHOUT ANY RIGHT TO THE USE OF OR RIGHTS IN
OR TO ANY PORTION OF THE SURFACE OF SAID LAND. THE OWNER OF THE RESERVED WATER
RIGHTS, HOWEVER, COVENANTS THAT IT WILL NOT EXERCISE THE RIGHTS RESERVED OVER
THE SURFACE OF THE PROPERTY DESCRIBED ABOVE OR WITHIN THE SUBSURFACE OF SUCH
PROPERTY ABOVE A DEPTH OF 100 FEET BELOW THE SURFACE OF SAID PROPERTY. BREACH OF
THE FOREGOING COVENANT SHALL NOT, HOWEVER, TERMINATE OR FORFEIT THE RIGHTS SO
RESERVED, BUT INJUNCTIVE RELIEF MAY BE SOUGHT AND OBTAINED TO PREVENT OR REMEDY
ANY SUCH BREACH:
AND, RESERVING FURTHER, TO THE GRANTOR AND ITS SUCCESSORS AND ASSIGNS, ALL OIL,
GAS, MINERAL, GEOTHERMAL AND HYDROCARBON SUBSTANCES IN AND UNDER OR THAT MAY BE
PRODUCED BELOW A DEPTH OF 500 FEET BELOW THE SURFACE OF SAID PROPERTY WITHOUT
ANY RIGHT OF ENTRY UPON THE SURFACE OF SAID LAND FOR THE PURPOSE OF MINING,
DRILLING, EXPLORING OR EXTRACTING SUCH OIL, GAS, MINERAL, GEOTHERMAL, OR
HYDROCARBON SUBSTANCES AND, EXCEPT AS PROVIDED ABOVE WITH RESPECT TO WATER
RIGHTS, WITHOUT ANY RIGHT TO THE USE OF OR RIGHTS IN OR TO ANY PORTION OF THE
SURFACE OF SAID LAND TO A DEPTH OF 500 FEET BELOW THE SURFACE THEREOF, AS
RESERVED IN THE DEED FROM HARBOR BAY ISLE ASSOCIATES, A PARTNERSHIP, RECORDED
FEBRUARY 5, 1985, SERIES NO. 85-027883, OFFICIAL RECORDS.
ASSESSOR'S PARCEL NO. 074-1339-025
1
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EXHIBIT D TO LEASE
ACKNOWLEDGMENT OF COMMENCEMENT DATE
This ACKNOWLEDGMENT OF COMMENCEMENT DATE is made this _____ day
of ______________, ______________, between ARE- 1201 HARBOR BAY, LLC, a Delaware
limited liability company ("LANDLORD"), and AVIGEN, INC., a Delaware corporation
("TENANT"), and is attached to and made a part of the Lease dated s of February
, 2000 (the "Lease"), by and between Landlord and Tenant. Any initially
capitalized terms used but not defined herein shall have the meanings given them
in the Lease.
Landlord and Tenant hereby acknowledge and agree, for all purposes of
the Lease, that the Commencement Date of the Base Term of the Lease is
_______________, _______________ and the termination date of the Base Term of
the Lease shall be midnight on _______________,_______________ .
IN WITNESS WHEREOF, Landlord and Tenant have executed this
ACKNOWLEDGMENT OF COMMENCEMENT DATE to be effective on the date first above
written.
TENANT:
AVIGEN, INC.,
a Delaware corporation ("TENANT")
By:
----------------------------------------
Its:
----------------------------------
LANDLORD:
ARE- 1201 HARBOR BAY, LLC,
a Delaware limited liability company
BY: ARE-QRS CORP.,
a Maryland corporation
By:
--------------------------------
Its:
--------------------------------
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EXHIBIT E TO LEASE
RULES AND REGULATIONS
1. The sidewalk, entries, and driveways of the Project shall not be
obstructed by Tenant, or its agents, or used by them for any purpose other than
ingress and egress to and from the Premises.
2. Tenant shall not place any objects, including antennas, outdoor
furniture, etc., in the parking areas, landscaped areas or other areas outside
of its Premises, or on the roof of the Project.
3. Except for seeing-eye dogs, no animals shall be allowed in the
offices, halls, or corridors in the Project.
4. Tenant shall not disturb the occupants of the Project or adjoining
buildings by the use of any radio or musical instrument or by the making of loud
or improper noises.
5. If Tenant desires telegraphic, telephonic or other electric
connections in the Premises, Landlord or its agent will direct the electrician
as to where and how the wires may be introduced; and, without such direction, no
boring or cutting of wires will be permitted. Any such installation or
connection shall be made at Tenant's expense.
6. Tenant shall not install or operate any steam or gas engine or
boiler, or other mechanical apparatus in the Premises, except as specifically
approved in the Lease. The use of oil, gas or inflammable liquids for heating,
lighting or any other purpose is expressly prohibited. Explosives or other
articles deemed extra hazardous shall not be brought into the Project.
7. Parking any type of recreational vehicles is specifically prohibited
on or about the Project. Except for the overnight parking of operative vehicles,
no vehicle of any type shall be stored in the parking areas at any time. In the
event that a vehicle is disabled, it shall be removed within 48 hours. There
shall be no "For Sale" or other advertising signs on or about any parked
vehicle. All vehicles shall be parked in the designated parking areas in
conformity with all signs and other markings. All parking will be open parking,
and no reserved parking, numbering or lettering of individual spaces will be
permitted except as specified by Landlord.
8. Tenant shall maintain the Premises free from rodents, insects and
other pests.
9. Landlord reserves the right to exclude or expel from the Project any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs or who shall in any manner do any act in violation of the
Rules and Regulations of the Project.
10. Tenant shall not cause any unnecessary labor by reason of Tenant's
carelessness or indifference in the preservation of good order and cleanliness.
Landlord shall not be responsible to Tenant for any loss of property on the
Premises, however occurring, or for any damage done to the effects of Tenant by
the janitors or any other employee or person.
11. Tenant shall give Landlord prompt notice of any defects in the
water, lawn sprinkler, sewage, gas pipes, electrical lights and fixtures,
heating apparatus, or any other service equipment affecting the Premises.
12. Tenant shall not permit storage outside the Premises, including
without limitation, outside storage of trucks and other vehicles, or dumping of
waste or refuse or permit any
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harmful materials to be placed in any drainage system or sanitary system in or
about the Premises.
13. All moveable trash receptacles provided by the trash disposal firm
for the Premises must be kept in the trash enclosure areas, if any, provided for
that purpose.
14. No auction, public or private, will be permitted on the Premises or
the Project.
15. No awnings shall be placed over the windows in the Premises except
with the prior written consent of Landlord.
16. The Premises shall not be used for lodging, sleeping or cooking or
for any immoral or illegal purposes or for any purpose other than that specified
in the Lease. No gaming devices shall be operated in the Premises.
17. Tenant shall ascertain from Landlord the maximum amount of
electrical current which can safely be used in the Premises, taking into account
the capacity of the electrical wiring in the Project and the Premises and the
needs of other tenants, and shall not use more than such safe capacity.
Landlord's consent to the installation of electric equipment shall not relieve
Tenant from the obligation not to use more electricity than such safe capacity.
18. Tenant assumes full responsibility for protecting the Premises from
theft, robbery and pilferage.
19. Tenant shall not install or operate on the Premises any machinery or
mechanical devices of a nature not directly related to Tenant's ordinary use of
the Premises and shall keep all such machinery free of vibration, noise and air
waves which may be transmitted beyond the Premises.
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EXHIBIT F TO LEASE
TENANT'S PERSONAL PROPERTY
[TENANT TO PROVIDE]
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EXHIBIT G TO LEASE
ESTOPPEL CERTIFICATE
THIS TENANT ESTOPPEL CERTIFICATE ("CERTIFICATE"), dated as of ________,
______, is executed by ______________________ ("TENANT") in favor of [BUYER], a
___________________________ , together with its nominees, designees and assigns
(collectively, "BUYER"), and in favor of _____________, together with its
nominees, designees and assigns (collectively, "LENDER").
RECITALS
A. Buyer and ____________ ("LANDLORD") have entered into that certain
Purchase and Sale Agreement and Joint Escrow Instructions, dated as of
_________, 20__ (the "PURCHASE AGREEMENT"), whereby Buyer has agreed to
purchase, among other things, the improved real property located in the City of
_________, County of _________, State of _________, more particularly described
on Exhibit A attached to the Purchase Agreement (the "PROPERTY").
B. Tenant and Landlord have entered into that certain Lease Agreement,
dated as of ___________ (together with all amendments, modifications,
supplements, guarantees and restatements thereof, the "LEASE"), for a portion of
the Property.
C. Pursuant to the Lease, Tenant has agreed that upon the request of
Landlord, Tenant would execute and deliver an estoppel certificate certifying
the status of the Lease.
D. In connection with the Purchase Agreement, Landlord has requested
that Tenant execute this Certificate with an understanding that Lender will rely
on the representations and agreements below in granting to Buyer a loan.
NOW, THEREFORE, Tenant certifies, warrants, and represents to Buyer and
Lender as follows:
1. LEASE. Attached hereto as Exhibit B is a true, correct and complete copy of
the Lease, including the following amendments, modifications, supplements,
guarantees and restatements thereof, which together represent all of the
amendments, modifications, supplements, guarantees and restatements thereof:
________________________________________________ (If none, please state "None.")
2. PREMISES. Pursuant to the Lease, Tenant leases those certain premises (the
"Premises") consisting of approximately _______________ rentable square feet
within the Property, as more particularly described in the Lease. In addition,
pursuant to the terms of the Lease, Tenant has the [non-exclusive] right to use
[_____ parking spaces/the parking area] located on the Property during the term
of the Lease. [Cross-out the preceding sentence or portions thereof if
inapplicable.]
3. FULL FORCE OF LEASE. The Lease has been duly authorized, executed and
delivered by Tenant, is in full force and effect, has not been terminated, and
constitutes a legally valid instrument, binding and enforceable against Tenant
in accordance with its terms, subject only to applicable limitations imposed by
laws relating to bankruptcy and creditor's rights.
4. COMPLETE AGREEMENT. The Lease constitutes the complete agreement between
Landlord and Tenant for the Premises and the Property, and except as modified by
the Lease amendments noted above (if any), has not been modified, altered or
amended.
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5. ACCEPTANCE OF PREMISES. Tenant has accepted possession of and is currently
occupying the Premises.
6. LEASE TERM. The term of the Lease commenced on ______________ and ends on
_______________, subject to the following options to extend: ___________________
_________________________________.
(If none, please state "None.")
7. PURCHASE RIGHTS. Tenant has no option, right of first refusal, right of first
offer, or other right to acquire or purchase all or any portion of the Premises
or all or any portion of, or interest in, the Property, except as follows:
________________________________________________________________________________
_________________________________.
(If none, please state "None.")
8. RIGHTS OF TENANT. Except as expressly stated in this Certificate, Tenant:
(a) has no right to renew or extend the term of the Lease;
(b) has no option or other right to purchase all or any part of
the Premises or all or any part of the Property; and
(c) has no right, title, or interest in the Premises, other than
as Tenant under the Lease.
9. RENT.
(a) The obligation to pay rent under the Lease commenced on
___________. The rent under the Lease is current, and Tenant is not in
default in the performance of any of its obligations under the Lease.
(b) Tenant is currently paying base rent under the Lease in the
amount of $__________ per month. Tenant has not received and is not
presently entitled to any abatement, refunds, rebates, concessions or
forgiveness of rent or other charges, free rent, partial rent, or
credits, offsets or reductions in rent, except as follows: _____________
________________________________________________________________________
_________________________________. (If none, please state "None.")
(c) Tenant's estimated share of operating expenses, common area
charges, insurance, real estate taxes and administrative and overhead
expenses is ________% and is currently being paid at the rate of
$__________ per month, payable to:_____________________________________.
(d) There are no existing defenses or offsets against rent due or
to become due under the terms of the Lease, and there presently is no
default or other wrongful act or omission by Landlord under the Lease or
otherwise in connection with Tenant's occupancy of the Premises, nor is
there a state of facts which with the passage of time or the giving of
notice or both could ripen into a default on the part of Tenant, or, to
the best knowledge of Tenant, could ripen into a default on the part of
Landlord under the Lease, except as follows:____________________________
________________________________________________________________________
_________________________________. (If none, please state "None.")
10. SECURITY DEPOSIT. The amount of Tenant's security deposit held by Landlord
under the
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Lease is $ __________.
11. PREPAID RENT. The amount of prepaid rent, separate from the security
deposit, is $___________, covering the period from ________ to ________.
12. INSURANCE. All insurance, if any, required to be maintained by Tenant under
the Lease is presently in effect.
13. PENDING ACTIONS. There is not pending or, to the knowledge of Tenant,
threatened against or contemplated by the Tenant, any petition in bankruptcy,
whether voluntary or otherwise, any assignment for the benefit of creditors, or
any petition seeking reorganization or arrangement under the federal bankruptcy
laws or those of any state, except as follows:__________________________________
_______________________________________________________________________________.
(If none, please state "None.")
14. TENANT IMPROVEMENTS. As of the date of this Certificate, to the best of
Tenant's knowledge, Landlord has performed all obligations required of Landlord
pursuant to the Lease; no offsets, counterclaims, or defenses of Tenant under
the Lease exist against Landlord; and no events have occurred that, with the
passage of time or the giving of notice or both, would constitute a basis for
offsets, counterclaims, or defenses against Landlord, except as follows:________
_______________________________________________________________________________.
(If none, please state "None.")
15. ASSIGNMENTS BY LANDLORD. Tenant has received no notice of any assignment,
hypothecation or pledge of the Lease or rentals under the Lease by Landlord.
Tenant hereby consents to an assignment of the Lease and rents to be executed by
Landlord to Buyer or Lender in connection with the Loan and acknowledges that
said assignment does not violate the provisions of the Lease. Tenant
acknowledges that the interest of the Landlord under the Lease is to be assigned
to Buyer or Lender solely as security for the purposes specified in said
assignment and Buyer or Lender shall have no duty, liability or obligation
whatsoever under the Lease or any extension or renewal thereof, either by virtue
of said assignment or by any subsequent receipt or collection of rents
thereunder, unless Buyer or Lender shall specifically undertake such liability
in writing. Tenant agrees that upon receipt of a written notice from Buyer or
Lender of a default by Landlord under the Loan, Tenant will thereafter pay rent
to Buyer or Lender in accordance with the terms of the Lease.
16. ASSIGNMENTS BY TENANT. Tenant has not sublet or assigned the Premises or the
Lease or any portion thereof to any sublessee or assignee. No one except Tenant
and its employees will occupy the Premises. The address for notices to be sent
to Tenant is as set forth in the Lease, except as follows:______________________
_______________________________________________________________________________.
(If none, please state "None.")
17. ENVIRONMENTAL MATTERS. The operation and use of the Premises does not
involve the generation, treatment, storage, disposal or release into the
environment of any hazardous materials, regulated materials and/or solid waste,
except those used in the ordinary course of operating for the Permitted Use, as
defined in the Lease, or otherwise used in accordance with all applicable laws.
18. SUCCESSION OF INTEREST. Tenant agrees that, in the event Buyer or Lender
succeeds to the interest of Landlord under the Lease:
(a) Buyer or Lender shall not be liable for any act or omission
of any prior landlord (including Landlord);
(b) Buyer or Lender shall not be liable for the return of any
security deposit
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<PAGE> 40
unless delivered or credited to such Buyer or delivered to such Lender;
(c) Buyer or Lender shall not be bound by any rent or additional
rent which Tenant might have prepaid under the Lease for more than the
current month;
(d) Buyer or Lender shall not be bound by any amendments or
modifications of the Lease made without the prior consent of Buyer or
Lender;
(e) Buyer or Lender shall not be subject to any offsets or
defenses which Tenant might have against any prior landlord (including
Landlord); and
(f) Buyer or Lender shall not be liable under the Lease to Tenant
for the performance of Landlord's obligations under the Lease beyond
Buyer or Lender's interest in the Property.
19. NOTICE OF DEFAULT. Tenant agrees to give Buyer and Lender a copy of any
notice of default under the Lease served upon Landlord at the same time as such
notice is given to Landlord. Tenant further agrees that if Landlord shall fail
to cure such default within the applicable grace period, if any, provided in the
Lease, then Buyer or Lender shall have an additional 60 days within which to
cure such default, or if such default cannot be cured within such 60-day period,
such 60-day period shall be extended so long as Buyer or Lender has commenced
and is diligently pursuing the remedies necessary to cure such default,
including, but not limited to, commencement of foreclosure proceedings, if
necessary to effect such cure, in which event the Lease shall not be terminated
while such remedies are being pursued.
20. NOTIFICATION BY TENANT. From the date of this Certificate and continuing
until ____________, Tenant agrees to immediately notify Buyer and Lender, in
writing by registered or certified mail, return receipt requested, at the
following addresses, on the occurrence of any event or the discovery of any fact
that would make any representation contained in this Certificate inaccurate:
If To Buyer: _________________________________
_________________________________
_________________________________
_________________________________
_________________________________
With A Copy To: _________________________________
_________________________________
_________________________________
_________________________________
_________________________________
If To Lender: _________________________________
_________________________________
_________________________________
_________________________________
_________________________________
Tenant makes this Certificate with the knowledge that it will be relied
upon by Buyer and Lender in agreeing to purchase the Property.
Tenant has executed this Certificate as of the date first written above
by the person named below, who is duly authorized to do so.
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TENANT: [INSERT APPROPRIATE SIGNATURE BLOCK]
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EXHIBIT A TO ESTOPPEL CERTIFICATE
LEGAL DESCRIPTION
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EXHIBIT B TO ESTOPPEL CERTIFICATE
COPY OF LEASE
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EXHIBIT H TO LEASE
SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT is made and
entered into as of __________ ____, _____ ("AGREEMENT"), by and between ARE- , a
together with its nominees, designees and assigns (collectively, "LANDLORD"), ,
a _______________ ("TENANT"), and ____________________, a
_______________("MORTGAGEE").
WHEREAS, Mortgagee is making a loan to Landlord and others evidenced by
a certain promissory note ("NOTE"), and secured by, among other things, a deed
of trust/mortgage to be recorded prior hereto in the public records of the City
of _________, County of ________, State of ________ ("MORTGAGE") constituting a
lien upon the real property described in Exhibit A hereto (the "REAL PROPERTY");
and
WHEREAS, ______________________________ and Tenant have entered into a
Lease Agreement dated as of____________________, _____ ("LEASE"), for certain
leased premises encompassing _______________________________________ located in
_____________, containing approximately __________________________ net square
feet (hereinafter collectively referred to as "PREMISES"); and
WHEREAS, the Lease is subordinate to the Mortgage and to the right,
title, and interests of Mortgagee thereto and thereunder; and
WHEREAS, Mortgagee wishes to obtain from Tenant certain assurances that
Tenant will attorn to Mortgagee in the event of a foreclosure by Mortgagee or
the exercise of other rights under the Mortgage; and
WHEREAS, Tenant wishes to obtain from Mortgagee certain assurances that
Tenant's possession of the Premises will not, subject to the terms and
conditions of this Agreement, be disturbed by reason of a foreclosure of the
lien of the Mortgage on the Real Property; and
WHEREAS, Tenant and Mortgagee are both willing to provide such
assurances to each other upon and subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the above, the mutual promises
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto mutually
agree as follows:
1. AFFIRMATION. Tenant hereby agrees that the Lease now is and shall be
subject and subordinate in all respects to the Mortgage and to all renewals,
modifications and extensions thereof until such time that the Mortgage is
released, satisfied or otherwise discharged, subject to the terms and conditions
of this Agreement. Landlord and Tenant hereby affirm that the Lease is in full
force and effect and that the Lease has not been modified or amended. Mortgagee
hereby confirms that it is the holder of the Note and the beneficiary of the
Mortgage and has full power and authority to enter into this Agreement.
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2. ATTORNMENT AND NON-DISTURBANCE.
(a) So long as Tenant is not in default under the Lease (beyond Tenant's
receipt of notice from Landlord and any grace period granted Tenant under the
Lease to cure such default) as would entitle the Landlord to terminate the Lease
or would cause, without any further action of the Landlord, the termination of
the Lease or would entitle the Landlord to dispossess Tenant thereunder then
Mortgagee agrees with Tenant that in the event the interest of Landlord shall be
acquired by Mortgagee or in the event Mortgagee comes into possession of or
acquires title to the Real Property by reason of foreclosure or foreclosure sale
or the enforcement of the Mortgage or the Note or other obligation secured
thereby or by a conveyance in lieu thereof, or as a result of any other means
then:
(i) Subject to the provisions of this Agreement, Tenant's
occupancy and possession of the Premises and Tenant's rights and
privileges under the Lease or any extensions, modifications or renewals
thereof or substitutions therefor (in accordance with the Lease and the
Mortgage) shall not be disturbed, diminished or interfered with by
Mortgagee during the term of the Lease (or any extensions or renewals
thereof provided for in the Lease);
(ii) Mortgagee will not join Tenant as a party defendant in any
action or proceeding for the purpose of terminating Tenant's interest
and estate under the Lease because of any default under the Mortgage;
and
(iii) The Lease shall continue in full force and effect and shall
not be terminated except in accordance with the terms of the Lease.
(b) Tenant shall be bound to Mortgagee under all of the terms, covenants
and conditions of the Lease for the balance of the term thereof remaining (and
any extensions or renewals thereof which may be effected in accordance with any
option contained in the Lease) with the same force and effect as if Mortgagee
were the landlord under the Lease, and Tenant does hereby agree to attorn to
Mortgagee as its landlord, said attornment to be effective and self-operative
without the execution of any other instruments on the part of either party
hereto immediately upon Mortgagee's succeeding to the interest of Landlord under
the Lease. Upon request of Lender, Tenant shall execute and deliver to Lender an
agreement reaffirming such attornment.
(c) If the Mortgage is foreclosed and any party ("PURCHASER") other than
Mortgagee purchases the Premises and succeeds to the interest of Landlord under
the Lease, Tenant shall likewise be bound to Purchaser and Tenant hereby
covenants and agrees to attorn to Purchaser in accordance with all of the
provisions of this Agreement; provided, however, that Purchaser shall have
transmitted to Tenant a written document in recordable form, whereby Purchaser
agrees to recognize Tenant as its lessee under the Lease and agrees to be
directly bound to Tenant for the performance and observance of all the terms and
conditions of the Lease required to be performed or observed by Landlord
thereunder, subject to and in accordance with the terms of this Agreement.
(d) Mortgagee agrees that if Mortgagee shall succeed to the interest of
Landlord under the Lease as above provided, Mortgagee shall be bound to Tenant
under all of the terms, covenants, and conditions of the Lease, and Tenant
shall, from and after Mortgagee's succession to the interest of Landlord under
the Lease, have the same remedies against Mortgagee that Tenant might have had
under the Lease against Landlord if Mortgagee had not succeeded to the interest
of Landlord; provided, however, that Mortgagee (and Purchaser, as the case may
be) shall not be:
(i) liable for any act or omission of any prior lessor (including
Landlord)
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occurring prior to the date that Mortgagee or Purchaser acquired title
to the Premises;
(ii) subject to any offsets, counterclaims or defenses which
Tenant might have against any prior lessor (including Landlord);
(iii) bound by any previous payment of rent or additional rent
for a period greater than 1 month unless such prepayment shall have been
consented to in writing by Mortgagee;
(iv) bound by any amendment or modification of the Lease made
prior to the date Mortgagee or Purchaser succeeds to the interest of
Landlord without Mortgagee's written consent;
(v) liable to Tenant for any loss of business or any other
indirect or consequential damages from whatever cause; provided,
however, no inference shall be drawn from this clause (v) that Tenant
would otherwise be entitled (or not entitled) to recover for loss of
business or any other indirect or consequential damages; or
(vi) liable for the return of any security deposit unless such
deposit has been paid over to the Mortgagee.
The foregoing shall not be construed to modify or limit any right Tenant
may have at law or in equity against Landlord or any other prior owner
of the Real Property.
3. NOTICES. All notices required or permitted to be given pursuant to
this Agreement shall be in writing and shall be sent postage prepaid, by
certified mail, return receipt requested, or other nationally utilized overnight
delivery service. All notices shall be deemed delivered when received or
refused. Rejection or other refusal to accept or inability to deliver because of
changed address of which no notice has been given shall constitute receipt of
the notice, demand or request sent. Any such notice if given to Tenant shall be
addressed as follows:
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
if given to Landlord shall be addressed as follows:
c/o Alexandria Real Estate Equities, Inc.
135 N. Los Robles Avenue
Suite 250
Pasadena, California 91101
Attention: General Counsel
if given to Mortgagee shall be addressed as follows:
_________________________________
_________________________________
_________________________________
_________________________________
4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns. The words "foreclosure" and "foreclosure sale" as used herein shall be
deemed to also include the acquisition of Landlord's estate in the Real Property
by voluntary deed, assignment or other
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conveyance or transfer in lieu of foreclosure.
5. MODIFICATIONS TO LEASE. Tenant shall not modify or amend the Lease or
terminate the same without Mortgagee's prior written consent. If Mortgagee fails
to provide Tenant with a written approval of the proposed modification,
amendment or termination within 10 business days after notice to Mortgagee of
such proposal, then Mortgagee shall be deemed to have rejected such proposal.
6. ADDITIONAL AGREEMENTS. Tenant agrees that:
(a) it shall give Mortgagee copies of all notices of default and
requests for approval or consent by Landlord that Tenant gives to Landlord
pursuant to the Lease in the same manner as they are given to Landlord and no
such notice or other communication shall be deemed to be effective until a copy
is given to Mortgagee;
(b) whenever any consent or approval by Landlord is required to be
obtained by Tenant or is requested by Tenant such consent or approval shall not
be effective until it is also confirmed by or obtained from Mortgagee, provided
that Mortgagee shall respond within 30 days after Mortgagee's receipt of
Tenant's request and failure of Mortgagee to respond in such time period shall
be deemed to be a denial of such consent or approval;
(c) in all provisions of the Lease where Landlord is indemnified, the
reference to Landlord as an indemnitee shall be deemed to include Mortgagee and
any Purchaser and such agreement of indemnification shall survive the repayment
of the loan secured by the Mortgage and, to the extent provided in the Lease,
the expiration or termination of the Lease;
(d) Tenant shall name Mortgagee and any Purchaser as additional insureds
and loss payees, as applicable and appropriate, on all insurance policies
required by the Lease;
(e) this Agreement satisfies any condition or requirement in the Lease
relating to the granting of a non-disturbance agreement by Mortgagee, and if
there are inconsistencies between the terms and provisions of this Agreement and
the terms and provisions of the Lease dealing with non-disturbance by Mortgagee,
the terms and provisions hereof shall be controlling; and
(f) Mortgagee shall have no liability under the Lease until Mortgagee
succeeds to the rights of the Landlord under the Lease, and then only during
such period as Mortgagee is the landlord. At all times during which Mortgagee is
liable under the Lease, Mortgagee's liability shall be limited to Mortgagee's
interest in the Real Property.
7. MORTGAGEE CURE RIGHTS. If Landlord shall have failed to cure any
default within the time period provided for in the Lease (including any
applicable notice and grace periods) and Tenant exercises any right to terminate
the Lease, Mortgagee shall have an additional 30 days within which to cure such
default, or if such default cannot by the exercise of reasonable efforts by
Mortgagee be cured within such period, then such additional time as may be
reasonable necessary to effect such a cure (including, if necessary, sufficient
time to complete foreclosure proceedings) provided that Mortgagee shall commence
and thereafter diligently pursue remedies to cure such default. The Lease shall
not be terminated (i) while such remedies are being diligently pursued or (ii)
based upon a default which is personal to Landlord and therefore not susceptible
to cure by Mortgagee or which requires possession of the Premises to cure.
Mortgagee shall in no event be obligated to cure any such default by Landlord
unless it forecloses. Nothing in this Section 7 shall affect any of Tenant's
termination rights under the Lease due to casualty or condemnation.
8. DIRECTION TO PAY. Landlord hereby directs Tenant and Tenant agrees to
make all
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<PAGE> 48
payments of amounts owed by Tenant under the Lease directly to Mortgagee from
and after receipt by Tenant of notice from Mortgagee directing Tenant to make
such payments to Mortgagee. (As between Landlord and Mortgagee, the foregoing
provision shall not be construed to modify any rights of Landlord under any
provisions of the Mortgage or any other instrument securing the Note).
9. CONDITIONAL ASSIGNMENT. With reference to any assignment by Landlord
of Landlord's interest in the Lease, or the rents payable thereunder,
conditional in nature or otherwise, which assignment is made to Mortgagee,
Tenant agrees that the execution thereof by Landlord, and the acceptance thereof
by Mortgagee, shall never be treated as an assumption by Mortgagee of any of the
obligations of Landlord under the Lease unless and until Mortgagee shall have
succeeded to the interest of Landlord. The foregoing sentence shall not affect
any of Tenant's rights against Landlord under the Lease.
[ SIGNATURES ON NEXT PAGE ]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
properly executed by their duly authorized representatives as of the date first
above written.
TENANT: [INSERT APPROPRIATE SIGNATURE BLOCK]
LANDLORD: [INSERT APPROPRIATE SIGNATURE BLOCK]
MORTGAGEE: [INSERT APPROPRIATE SIGNATURE BLOCK]
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<PAGE> 1
EXHIBIT 10.42
SUBLEASE
BETWEEN
LUCENT TECHNOLOGIES INC.,
SUBLANDLORD
and
AVIGEN INC.
SUBTENANT
1201 Harbor Bay Parkway, Alameda, California
Dated: February 1, 2000
<PAGE> 2
* * * *
The mailing, delivery or negotiation of this Sublease shall not be
deemed an offer to enter into any transaction or to enter into any other
relationship, whether on the terms contained herein or on any other terms. This
Sublease shall not be binding nor shall either party have any obligations or
liabilities or any rights with respect thereto, or with respect to the premises,
unless and until both parties have executed and delivered this Sublease and the
Prime Landlord has consented in writing to this Sublease. Until such execution
and delivery of, and consent to this Sublease, either party may terminate all
negotiation and discussion of the subject matter hereof, without cause and for
any reason, without recourse or liability.
* * * *
<PAGE> 3
Table of Contents
<TABLE>
<CAPTION>
Page
----
<S> <C>
1. SUBLEASE.......................................................................2
2. PARKING........................................................................3
3. PRIME LEASE....................................................................3
4. DEFINITIONS....................................................................6
5. PRIME LANDLORD.................................................................6
6. TERM...........................................................................7
7. RENT/SECURITY DEPOSIT..........................................................8
8. Intentionally Deleted.........................................................11
9. Intentionally Deleted.........................................................11
10. USE AND CONDITION OF SUBLEASED PREMISES......................................11
11. ALTERATIONS..................................................................14
12. REPAIRS AND MAINTENANCE......................................................17
13. UTILITIES AND SERVICES.......................................................17
14. ASSIGNMENT AND SUBLEASING....................................................18
15. INSURANCE....................................................................18
16. SIGNS - BUILDING DIRECTORY...................................................19
17. COMPLIANCE WITH LAWS.........................................................19
18. NON-BINDING MEDIATION........................................................22
19. ESTOPPEL CERTIFICATES........................................................23
20. SUBORDINATION................................................................24
21. CASUALTY AND CONDEMNATION....................................................24
22. CONSENT OR APPROVAL OF PRIME LANDLORD........................................24
</TABLE>
(i)
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
23. NOTICES......................................................................25
24. BROKERS......................................................................26
25. SUBLANDLORD'S AND SUBTENANT'S POWER TO EXECUTE...............................26
26. CONSENT TO SUBLEASE BY PRIME LANDLORD........................................26
27. HOLDOVER.....................................................................27
28. DEFAULT AND REMEDIES.........................................................27
29. ENTIRE AGREEMENT.............................................................29
30. TABLE OF CONTENTS - CAPTIONS.................................................29
EXHIBIT A Description of Subleased Premises....................................
EXHIBIT B Intentionally Deleted................................................
EXHIBIT C Prime Lease..........................................................
</TABLE>
(ii)
<PAGE> 5
SUBLEASE
This Sublease is dated for reference purposes as of this 1st day of
February, 2000 and entered into by and between LUCENT TECHNOLOGIES INC., a
Delaware corporation, with offices at 475 South Street, Morristown, New Jersey
07962, (hereinafter "Sublandlord") and AVIGEN, INC., a Delaware corporation,
with offices at 1201 Harbor Bay Parkway, Suite 1000, Alameda, California 94502
(hereinafter "Subtenant").
INTRODUCTORY STATEMENTS
A. By Lease dated June 1, 1998 (the "Prime Lease") ARE-1201 HARBOR BAY,
LLC, a Delaware limited liability company (the "Prime Landlord") leased to
ASCEND COMMUNICATIONS, INC., a Delaware corporation ("Ascend"), certain portions
of the building located at 1201 Harbor Bay Parkway, Alameda, California
(hereinafter called the "Building").
B. Sublandlord acquired Ascend on January 12, 1999 and was assigned all
of Ascend's rights and benefits under the Prime Lease as part of the
acquisition.
C. Sublandlord has agreed to sublet to, and Subtenant has agreed to
sublet from Sublandlord, certain portions of the Building.
- 1 -
<PAGE> 6
D. The parties desire to enter into this Sublease defining their
respective rights, duties and liabilities relating to the Subleased Premises
(defined below).
WITNESSETH
NOW THEREFORE, Sublandlord and Subtenant, in consideration of the mutual
promises and covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
each with intent to be legally bound, for themselves and their respective
successors and assigns, agree as follows:
1. SUBLEASE
Sublandlord, for and in consideration of the Subtenant's payment of the
rent and performance of the covenants contained in this Sublease, does hereby
demise and lease to Subtenant, on the dates set forth below, the following
portions of the Building:
<TABLE>
<CAPTION>
Date Portion of Building
---- -------------------
<S> <C>
Phase I 15,348 square feet of Suite 150 of
Commencement Date: the Building, as shown on the floor
(as defined below) plan which is attached hereto as Exhibit A,
referred to hereinafter as "Phase I"
Phase II 7,000 square feet of Suite 150 of
Commencement Date: the Building, as shown on the floor
</TABLE>
- 2 -
<PAGE> 7
<TABLE>
<S> <C>
(as defined below) plan which is attached hereto as Exhibit A,
referred to hereinafter as "Phase II"
</TABLE>
The term "Subleased Premises" as used hereinafter shall refer to Phase I until
the Phase II Commencement Date, after which date the term "Subleased Premises"
shall refer to both Phase I and Phase II. Subtenant shall have the non-exclusive
right to use all Common Areas as defined and depicted in the Prime Lease during
the term of this Sublease.
The restrooms serving Phase I and Phase II are located in Phase I.
Subtenant agrees that until the Phase II Commencement Date Sublandlord and its
employees and agents shall at all times have unrestricted access through Phase I
in order to use these restrooms. Phase I and Phase II combined, represent all of
the space that Sublandlord leases pursuant to the Prime Lease.
2. PARKING
Subtenant shall be entitled to use three and one half parking spaces per
one thousand rentable square feet of space (3.5/1,000 rsf) without additional
charge in the Common Areas. Subtenant acknowledges that its right to use the
parking spaces located in the Common Area is on a non-exclusive and non-reserved
basis.
- 3 -
<PAGE> 8
3. PRIME LEASE
(a) A true copy of the Prime Lease is attached hereto as Exhibit C. For
purposes of this Sublease, the term "Prime Lease" shall include the lease
amendments contained in the Consent to Sublease dated as of February 10, 2000
among Prime Landlord, Sublandlord and Subtenant (the "Consent to Sublease").
Where not expressly inconsistent with the terms hereof, this Sublease shall be
subject and subordinate to all of the terms and conditions contained in the
Prime Lease as said terms and conditions affect the Subleased Premises, and all
of the terms and conditions of the Prime Lease, except as otherwise set forth
herein, are hereby incorporated into this Sublease and shall be binding upon
Subtenant and Sublandlord with respect to the Subleased Premises to the same
extent as if Subtenant were named as tenant and Sublandlord to the same extent
as if Sublandlord were named as landlord under the Prime Lease. For purposes of
this Sublease, references in the Prime Lease to the "Term" shall mean the Term
of this Sublease and references to the "Demised Premises" in the Prime Lease
shall mean the Subleased Premises. Upon the expiration or earlier termination of
the Prime Lease, this Sublease and Subtenant's right to use and occupy the
Subleased Premises shall immediately terminate. Except as otherwise provided
herein, when any fraction, factor or formula, which is based on the number of
square feet leased, is expressed in the Prime Lease, it will be adjusted by
substituting the number of
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<PAGE> 9
square feet of the Subleased Premises for the number of square feet of the
Demised Premises leased in the Prime Lease.
(b) Subtenant agrees that it shall not do or omit to do anything which
would result in a default under the Prime Lease, and Subtenant agrees to
indemnify, defend and hold Sublandlord, its officers, directors, employees and
agents, and each of their respective successors and assigns, harmless from and
against all claims, demands or liabilities resulting from Subtenant's breach,
violation or nonperformance of any of provisions of the Prime Lease, as
incorporated herein. With the exceptions set forth herein, Subtenant shall be
entitled to all of the rights and privileges of the Sublandlord as tenant under
the terms of the Prime Lease with respect to the Subleased Premises. The
following provisions of the Prime Lease shall not be incorporated into this
Sublease: Sections 1.1 (except 1.1.1, 1.1.2 and 1.1.5), 1.2, 3, 4, 5, 6, 7, 8,
9, 11, 22, 23, 28 and 42, Right to Extend Addendum, and Exhibits B, D and F.
Additionally, references in the following sections to Landlord shall be deemed
to refer to Prime Landlord only: 30.1, 30.2, 31, 33 and 35.
(c) Sublandlord represents to Subtenant that the Prime Lease is in full
force and effect, and that no default or event that, with the passing of time or
the giving of notice or both, would constitute a default, exists on the part of
Sublandlord, or, to Sublandlord's knowledge, the Prime Landlord. Sublandlord
agrees to maintain the Prime Lease in full force and effect,
- 5 -
<PAGE> 10
except to the extent that any failure to maintain the Prime Lease is due to the
failure of Subtenant to comply with any of its obligations under this Sublease.
Sublandlord shall not amend or modify the Prime Lease in such a manner as to
materially adversely affect Subtenant's use of the Subleased Premises or
increase the obligations or decrease the rights of Subtenant hereunder, without
the prior written consent of Subtenant, which may be granted or withheld at
Subtenant's sole discretion.
4. DEFINITIONS
All terms not expressly defined in this Sublease shall have the meanings
given to them in the Prime Lease.
5. PRIME LANDLORD
Subtenant agrees to look solely to the Prime Landlord, and not to
Sublandlord, for the performance of services and obligations which are the
obligations of Prime Landlord under the Prime Lease with respect to the
Subleased Premises. At Subtenant's expense and written request, Sublandlord
will, at its election, either (i) exercise commercially reasonable efforts, at
Subtenant's sole cost and expense, to cause Prime Landlord to perform such
obligations, or (ii) assign its rights to enforce the terms of the Prime Lease
against Prime Landlord to Subtenant such that Subtenant can pursue enforcement
efforts directly against Prime Landlord (the matters discussed in clauses (i)
and (ii) being "Enforcement Efforts"). Provided that Sublandlord undertakes
Enforcement Efforts, Subtenant hereby releases
- 6 -
<PAGE> 11
Sublandlord from any and all loss, cost, expense, liability, claims or causes of
action that Subtenant may have or hereafter acquire against Sublandlord as a
result of the failure of Prime Landlord to perform any services or obligations
that it is obligated to perform under the Prime Lease.
6. TERM
The term of this Sublease (the "Term") shall commence on the dates set
forth below and shall end, as to both Phase I and Phase II, on June 30, 2003
(the "Expiration Date"):
<TABLE>
<CAPTION>
Phase Phase Commencement Date
----- -----------------------
<S> <C>
Phase I Approximately February 1, 2000
Phase II Approximately August 1, 2000.
</TABLE>
The "Phase I Commencement Date" and the "Phase II Commencement Date" shall occur
when Sublandlord has delivered exclusive possession of Phase I and Phase II,
respectively, to Subtenant in the condition required under this Sublease. The
commencement dates for Phase I and Phase II set forth above are approximate
dates and Sublandlord shall not be subject to any liability to Subtenant, nor
shall Subtenant be entitled to terminate this Sublease, if it fails to deliver
possession of the Subleased Premises to Subtenant on the approximate dates set
forth above.
- 7 -
<PAGE> 12
Notwithstanding anything to the contrary contained herein, if the Phase I
Commencement Date, or the Phase II Commencement Date have not occurred before
April 1, 2000 and October 1, 2000, then Subtenant shall have the right
thereafter to cancel this Sublease with respect to such Phase I and/or Phase II
space, and upon such cancellation, Sublandlord shall return all sums theretofore
deposited or prepaid by Subtenant to Sublandlord, and neither party shall have
any further liability to the other.
7. RENT/SECURITY DEPOSIT
a. The basic rent ("Monthly Basic Rent") during the Term hereunder shall
be as set forth below:
<TABLE>
<CAPTION>
Months Monthly Basic Rent
------ ------------------
<S> <C>
Phase I Commencement Date -
the day immediately preceding
the Phase II Commencement Date
(anticipated to be 07/31/00) $14,580.80
Phase II Commencement Date
(anticipated to be 08/01/00) -
02/09/01 $21,230.60
02/10/01 - 06/30/03 $23,465.40
</TABLE>
The Monthly Basic Rent shall be payable in lawful money of the United States of
America, in advance on the first day of each calendar month during the Term,
except that a proportionately lesser sum may be paid for the first and last
months of the Term of this Sublease if the Term commences on a date other than
the first day of the month or ends on other than the last day of a month.
Subtenant shall pay Sublandlord, concurrently with the
- 8 -
<PAGE> 13
execution of this Sublease, the sum of $14,680.80, which represents the Monthly
Basic Rent due for the first month of the Term of this Sublease. If the Phase I
Commencement Date occurs on other than the first day of a month, then the
$14,680.80 shall be credited to the partial Monthly Basic Rent due for the first
month of the Term and the unapplied balance shall be credited against Monthly
Basic Rent due for the following month.
b. In addition to the Monthly Basic Rent set forth in section 7.a.
above, Subtenant shall pay Sublandlord (as and when due under the terms of the
Prime Lease), as additional rent, all Operating Expenses, as such term is
defined in the Prime Lease, due with respect to the Subleased Premises.
Operating Expenses shall include, without limitation, property taxes and
assessments, landscaping, property management, parking lot, roof, foundation and
building maintenance, mechanical, fire system monitoring, pest control, Common
Area utilities, and property, liability and, if carried by Master Landlord,
earthquake, insurance. Until the Phase II Commencement Date, Subtenant shall
only be obligated to pay to Sublandlord that portion of the Operating Expenses
allocable to Phase I (based on the relative square footage of Phase I and Phase
II). Following the occurrence of the Phase II Commencement Date, Subtenant shall
pay all Operating Expenses due under the Prime Lease.
c. The terms "Monthly Basic Rent" and "additional rent" are sometimes
referred to herein as "Rent" or "rent" and shall
- 9 -
<PAGE> 14
include all sums due from Subtenant to Sublandlord under the terms of this
Sublease. All Rent shall be payable at the office of the Sublandlord at the
following address:
Lucent Technologies Inc.
475 South Street
Morristown, New Jersey 07962
Attention: Lease Administration
or at such other address as directed by notice from Sublandlord to Subtenant.
d. Subtenant shall pay to Sublandlord, concurrently with the execution
of this Sublease and in lawful money of the United States of America, a security
deposit ("Security Deposit") in the amount of $93,861.60 for the full and
faithful performance of Subtenant's obligations under this Sublease. If at any
time during the term of this Sublease, Subtenant shall be in default in the
payment of Rent or in the performance of any other obligation under this
Sublease, Sublandlord may use, apply or retain all or part of the Security
Deposit for payment of any amount due Sublandlord or to cure such default or to
compensate Sublandlord for any liability, loss, cost, expense or damage
(including attorney's fees) which Sublandlord may suffer or incur by reason of
Subtenant's defaults. If Sublandlord uses or applies all or any part of the
Security Deposit, Subtenant shall, within ten (10) business days of demand, pay
to Sublandlord a sum sufficient to restore the Security Deposit to the full
amount required by this Sublease. Sublandlord shall have no obligation
- 10 -
<PAGE> 15
to segregate the Security Deposit from its general funds or to pay interest in
respect thereof. No part of the Security Deposit shall be considered to be held
in trust, or to be prepayment of any monies to be paid by Subtenant under this
Sublease. If Subtenant performs all of its obligations hereunder, the Security
Deposit or such portion thereof as had not theretofore been applied by
Sublandlord, shall be returned to Subtenant within fifteen (15) days after the
expiration of the term hereof or after Subtenant has vacated the Subleased
Premises, whichever is later.
8. Intentionally Deleted.
9. Intentionally Deleted.
10. USE AND CONDITION OF SUBLEASED PREMISES
a. Subtenant acknowledges that its intended use of the Subleased
Premises for biotechnology research and development purposes does not fall
within the "Permitted Use" under the Prime Lease. Subtenant cannot engage in any
use outside of the Permitted Use unless it has received the prior written
consent to such other uses from Prime Landlord and has provided Subtenant with a
copy of such prior written consent.
b. Subtenant acknowledges that: (i) it has been advised by Sublandlord
to satisfy itself with respect to the condition of the Subleased Premises
(including, without limitation, the HVAC, electrical, plumbing and other
mechanical installations, fire sprinkler systems, security, environmental
aspects, and
- 11 -
<PAGE> 16
compliance with applicable laws, ordinances, rules and regulations) and the
present and future suitability of the Subleased Premises for Subtenant's
intended use; (ii) Subtenant has had the opportunity to make such inspection and
investigation as it deems necessary with reference to such matters; (iii)
neither Sublandlord or nor any of Sublandlord's agents has made any oral or
written representations or warranties with respect to the condition, suitability
or fitness of the Subleased Premises other than as may be specifically set forth
in this Sublease; and (iv) neither Sublandlord nor any of Sublandlord's agents
has agreed to undertake any alterations, additions, or improvements to or to
perform any maintenance or repair of the Subleased Premises prior to or at
delivery of possession of the Subleased Premises or during the term of this
Sublease, except that Sublandlord shall (i) at Subtenant's sole cost and
expense, construct the Subtenant Improvements (as defined below), and (ii) prior
to the Phase II Commencement Date, dismantle and remove its computer lab
equipment from Phase II. Except for the foregoing, Subtenant accepts the
Subleased Premises in its "As-Is" condition existing on the date Subtenant
executes this Sublease, subject to all matters of record and applicable laws,
ordinances, rules and regulations. Subtenant agrees to reimburse Sublandlord
within 30 days after written demand therefor, together with a copy of invoices
and other documentation that reasonably supports such costs, for Sublandlord's
reasonable, actual, out-of-pocket costs
- 12 -
<PAGE> 17
to prepare for the dismantling and removal of, and dismantle and remove, the
computer lab equipment from Phase II, which reimbursement obligation shall not
exceed $200,000.
c. Upon the Phase I Commencement Date, Sublandlord shall promptly
commence and thereafter diligently pursue to completion the following work
("Phase I Improvements"), at Subtenant's sole cost and expense: (i) installation
of a demising wall between Phase I and Phase II (which is needed because
Sublandlord will continue to use and occupy Phase II until the Phase II
Commencement Date); (ii) close off one door that leads to Phase II and move one
door that leads to Phase II, (iii) install security features on the door
installed in the demising wall such that Sublandlord can limit Subtenant's
access to Phase II while Sublandlord is occupying Phase II, and (iv) re-balance
the distribution of electrical service and HVAC service serving Phase I and
Phase II such that electrical and HVAC service adequate for Subtenant's and
Sublandlord's respective uses in Phase I and Phase II is available. It is
estimated that the Phase I Improvements will cost approximately $25,000.
Subtenant shall reimburse Sublandlord for all costs incurred by it in completing
the Phase I Improvements within 30 days after Sublandlord delivers to Subtenant
a bill for such costs, together with a copy of invoices and other documentation
that reasonably supports such costs; provided, however, such reimbursement
obligation shall not
- 13 -
<PAGE> 18
exceed $35,000, and any costs in excess of $35,000 shall be paid by Sublandlord.
Since Phase I and Phase II will not be separately metered or
sub-metered, Subtenant shall pay for all utilities consumed in Phase I and Phase
II. Until the Phase II Commencement Date Sublandlord shall reimburse Subtenant
for Sublandlord's proportionate share (based on the relative square footage of
Phase I and Phase II) of electrical and HVAC service, provided that Subtenant
has given Sublandlord a copy of the utility bills for such service and the
calculation showing apportionment of such utility bills between Subtenant and
Sublandlord. Sublandlord shall make such reimbursement within 30 days after
receiving the utility bills.
d. Notwithstanding anything to the contrary in this Sublease,
Sublandlord warrants that, to its actual knowledge, without investigation, as of
the date of this Sublease with respect to Phase I and Phase II (i) Phase I and
Phase II comply with all laws, codes, ordinances and other governmental
requirements then applicable to Phase I and Phase II, (ii) Phase I and Phase II,
including the improvements and equipment located therein, are in good working
order, condition and repair, (iii) Phase I and Phase II are free of any
Hazardous Materials contamination, and (iv) there are no material physical
defects in Phase I and Phase II which would unreasonably interfere with the
- 14 -
<PAGE> 19
use of Phase I and Phase II for research and development purposes.
11. ALTERATIONS
Subtenant shall not make alterations, improvements or installations in
or to the Subleased Premises without the prior written consent of Sublandlord,
which consent shall not be unreasonably withheld, and without the prior written
consent of Prime Landlord, as provided in the Prime Lease. Any alterations,
improvements or installations permitted under this Sublease and the Prime Lease
or which are consented to by the Sublandlord and the Prime Landlord shall be
made by Subtenant or Subtenant's contractors at the sole cost and expense of
Subtenant. All alterations, improvements or installations to the Subleased
Premises made by Subtenant shall remain the property of the Prime Landlord and
shall be surrendered to the Prime Landlord with the Subleased Premises at the
Expiration Date of this Sublease, as set forth in the Prime Lease; provided,
however, Subtenant shall remove any or all of such alterations, improvements, or
installations, together with the Phase I Improvements and any alterations,
improvements or installations made by Sublandlord prior to Subtenant's occupancy
of the Subleased Premises, and immediately repair any resulting damage to the
Subleased Premises if and to the extent required by Prime Landlord under the
Prime Lease at the expiration or earlier termination of this Sublease.
- 15 -
<PAGE> 20
Under the Consent to Sublease, Prime Landlord is requiring a Restoration
Deposit (as defined therein) to secure the restoration obligations under the
Prime Lease ("Restoration Obligations"). Subtenant agrees to pay the Restoration
Deposit to Prime Landlord, as well as any future restoration deposits that Prime
Landlord may require in connection with any future alterations to the Subleased
Premises that Subtenant may seek to make (collectively, "Restoration Deposits").
Sublandlord agrees that Subtenant is entitled, upon the expiration of the Term
and provided that there has not occurred and is not continuing a material
default by Subtenant under this Sublease, to the return of that portion of the
Restoration Deposits that has not been applied pursuant to the Consent to
Sublease or any future agreements among Sublandlord, Subtenant and Prime
Landlord. If this Sublease terminates prior to the expiration of the Term,
Subtenant agrees that Prime Landlord shall be entitled to retain the Restoration
Deposits until the expiration of the term of the Prime Lease. At that time, (i)
if Prime Landlord completes the Restoration Obligations then Subtenant shall be
entitled to the return of the unapplied portion of the Restoration Deposits, and
(ii) if Sublandlord completes the Restoration Obligations, then Sublandlord
shall be entitled to apply the Restoration Deposits against Sublandlord's actual
costs to complete the Restoration Obligations, together with a ten percent (10%)
construction management fee to compensate Sublandlord for its time in
- 16 -
<PAGE> 21
undertaking the Restoration Obligations. Upon its completion of the Restoration
Obligations, Sublandlord shall refund the balance of the Restoration Deposits,
if any, to Subtenant, and if Sublandlord's actual costs and construction
management fee exceed the amount of the Restoration Deposits, then Subtenant
shall reimburse Sublandlord within 20 days after written demand for such excess
amounts.
Subtenant acknowledges that until the Phase II Commencement Date
Sublandlord will be continuously operating a computer lab from Phase II. It is
of critical importance that Sublandlord's operations in Phase II not be
disrupted or interfered with in any manner whatsoever by any alterations,
additions or improvements to Phase I made by Subtenant. Accordingly, until the
Phase II Commencement Date Subtenant shall not undertake any construction in
Phase I without (i) providing Sublandlord with at least 10 days' prior written
notice of the date of commencement of any such construction, (ii) establishing
and enforcing rules and regulations with its contractors and suppliers such that
the construction will not disrupt or interfere with Sublandlord's operations in
Phase II, and (iii) allowing Sublandlord and its agents continual access to
Phase I and continuing updates concerning such construction so that Sublandlord
can evaluate the potential of such construction disrupting or interfering with
Sublandlord's operations in Phase II. If at any time during such construction
Sublandlord
- 17 -
<PAGE> 22
reasonably believes that such construction is disrupting or interfering with, or
there is a significant likelihood that such construction will disrupt or
interfere with, Sublandlord's operations in Phase II, Sublandlord shall have the
right to require Subtenant, at Subtenant's sole cost and expense, to immediately
cease the construction or to modify the manner of construction so as to
eliminate or reduce the likelihood of any such disruption or interference.
Without diminishing any other indemnities given by Subtenant in this Sublease
(including all indemnities applicable to Subtenant through the Prime Lease),
Subtenant agrees to indemnify, defend and hold Sublandlord, its officers,
directors, employees and agents, and each of their respective successors and
assigns, harmless from and against all loss, cost, claims, causes of action,
expenses, liability and damages of any kind whatsoever threatened against or
incurred by such parties as a result of any disruption or interference with
Sublandlord's operations in Phase II resulting, directly or indirectly, from
Subtenant's construction of any work in Phase I.
12. REPAIRS AND MAINTENANCE
Any repair and maintenance obligations with respect to the Subleased
Premises which are the responsibility of the Sublandlord, as tenant under the
Prime Lease, shall be performed, in a timely manner, by Subtenant at Subtenant's
sole cost and expense. In the event that Prime Landlord is obligated to repair
or maintain any portions of the Subleased Premises under the
- 18 -
<PAGE> 23
terms of the Prime Lease, Subtenant shall look solely to Prime Landlord for the
performance of such obligations. If Subtenant provides Sublandlord with written
notice of Prime Landlord's failure to perform any such obligations, Sublandlord
shall undertake Enforcement Efforts, whereupon Sublandlord shall not be liable
to Subtenant for Prime Landlord's failure to fulfill any such obligations.
13. UTILITIES AND SERVICES
Subtenant shall be entitled to all those services and utilities which
Prime Landlord is required to provide under the terms of the Prime Lease;
provided, however, that Subtenant shall pay for the costs of all utilities and
garbage services provided to or consumed in the Subleased Premises, subject to
Sublandlord's obligation to reimburse Subtenant for Sublandlord's Proportionate
Share of such costs. Subtenant shall look solely to the Prime Landlord for the
provision of those services and utilities which Prime Landlord is required to
provide under the terms of the Prime Lease, and, provided that Sublandlord
undertakes Enforcement Efforts following receipt of written notice from
Subtenant of Prime Landlord's failure to provide such services and utilities,
Sublandlord shall not be responsible for Prime Landlord's failure to provide the
same. Until the Phase II Commencement Date, Sublandlord shall pay and provide
for its own janitorial service for Phase II.
- 19 -
<PAGE> 24
14. ASSIGNMENT AND SUBLEASING
Subtenant shall not have the right to assign this Sublease or sublet the
Subleased Premises, in whole or in part, without the prior written consent of
Sublandlord, which consent shall not be unreasonably withheld, and without the
prior written consent of the Prime Landlord, all under the terms and conditions
set forth in the Prime Lease.
15. INSURANCE
Subtenant agrees to comply with all of the insurance requirements and
obligations of Sublandlord as set forth in the Prime Lease. In addition to any
such insurance requirements and obligations, Subtenant hereby agrees to procure
and maintain throughout the term of this Sublease, at its sole costs and
expense, environmental remediation insurance for Use of Hazardous Substances (as
such term is defined in Section 17 below), which environmental remediation
insurance shall be on such terms and underwritten by such companies as are
reasonably acceptable to Sublandlord
16. SIGNS - BUILDING DIRECTORY
Subtenant shall have the right to place any sign on the exterior of the
Building or in such manner within the Subleased Premises as may be visible from
the exterior of the Building only in accordance with the terms and conditions of
the Prime Lease. Subtenant shall have the right to place identification signs on
- 20 -
<PAGE> 25
its entrance doors to the Subleased Premises in accordance with the terms and
conditions of the Prime Lease.
17. COMPLIANCE WITH LAWS
a. In addition to any obligations under the Prime Lease, Subtenant shall
promptly comply with all statutes, ordinances, rules, orders, regulations and
requirements of the Federal, State and municipal Governments and of any and all
their Departments and Bureaus applicable to its intended use and occupancy of
the Subleased Premises by Subtenant or any subtenant or assignee of Subtenant,
for the correction, prevention and abatement of nuisances, violations or other
grievances, in, upon or connected with Subtenant's specific use of the Subleased
Premises during the Term or any renewal thereof, including without limitation,
all laws relating to environmental matters and the Americans with Disabilities
Act, and shall also promptly comply with, and execute all rules, orders and
regulations of the Board of Fire Underwriters relating to Subtenant's specific
use of the Subleased Premises and promulgated for the prevention of fires
(collectively referred to as "Legal Requirements") at its own cost and expense.
b. Without limiting the generality of Section 17.a above, Subtenant
agrees to comply with all Legal Requirements and prudent business practices
applicable to Subtenant's use, transportation, storage, disposal, release,
discharge or generation (collectively, shall be referred to hereinafter "Use
- 21 -
<PAGE> 26
of Hazardous Materials") of any Hazardous Materials in, on, to, under, from or
about the Subleased Premises or the Building. Subtenant shall indemnify, defend
(by counsel reasonably acceptable to the indemnified party), protect and hold
Sublandlord, its officers, directors, employees and agents, and each of their
respective successors and assigns, free and harmless from and against any and
all claims, demands, causes of action, damages, liabilities, penalties, fines,
losses or expenses (including, without limitation, attorneys' fees and costs and
court costs), arising from or caused in whole or in part, directly or
indirectly, by Subtenant's Use of Hazardous Substances to, in, on, under, about
or from the Subleased Premises or Building or Subtenant's failure to comply with
any Legal Requirements as set forth above. For purposes of the indemnity
provisions hereof, any acts or omissions of Subtenant, or by employees, agents,
assignees, contractors or subcontractors of Subtenant or others for whose acts
Subtenant is legally responsible or liable (whether or not they are negligent,
intentional, willful or unlawful) shall be strictly attributable to Subtenant.
This indemnification shall include without limitation any diminution in the
value of the Subleased Premises or Building, damages for the loss or restriction
on use of the Subleased Premises or Building, and remediation expenses. The
indemnification contained herein shall survive the expiration or earlier
termination of this Sublease.
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<PAGE> 27
c. As used in this Sublease, the term "Hazardous Substances" shall mean
hazardous wastes, hazardous chemicals, biological and/or medical waste,
flammable or explosive materials, radioactive materials, toxic materials or
related materials (whether potentially injurious to persons or property and
whether potentially injurious by themselves or in combination with other
materials), including, but not limited to, petroleum products or fractions
thereof and any waste, chemical, substance or material now or hereafter
determined by any federal, state or local governmental agency or authority
having jurisdiction to be hazardous to human health or the environment or which
is or becomes regulated by such agency or authority (including, but not limited
to, those materials listed in the United States Department of Transportation
Hazardous Materials Table as amended from time to time), which were released to
the environment, including, without limitation, the soil, groundwater and/or
air, at the Subleased Premises.
d. Sublandlord shall have the right, at any time on at least one
business day's prior notice, to enter the Subleased Premises, to inspect the
same and, at Subtenant's cost and expense, to conduct such tests as Sublandlord
reasonably deems appropriate to see if Subtenant is complying with the
provisions of Section 17.b. Additionally, Subtenant shall provide Sublandlord on
demand with a copy of any permits, manifests, or other documentation that
evidences that Subtenant is complying
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<PAGE> 28
with the provisions of Section 17.b with respect to its Use of Hazardous
Materials.
18. NON-BINDING MEDIATION
a. If a dispute arises out of or relates to this Sublease, or its
breach, and the parties have not been successful in resolving such dispute
through negotiation, the parties agree to attempt to resolve the dispute through
non-binding mediation by submitting the dispute to a sole mediator selected by
the parties or, at the option of a party, to mediation by the American
Arbitration Association ("AAA"). If such dispute is not resolved by such
non-binding mediation, the parties shall have the right to resort to any
remedies permitted by law. All defenses based on passage of time shall be tolled
during the mediation.
b. The direct expenses of the mediation, including the compensation and
expenses of the mediator and the fees of the AAA, shall be borne equally by the
parties. All other costs incurred by the parties to this Sublease, including the
parties' legal expenses and their witnesses' expenses, shall be borne by the
party incurring the expense. The parties, their representatives, other
participants and the mediator shall hold the existence, content and result of
the mediation in confidence.
19. ESTOPPEL CERTIFICATES
Subtenant agrees that from time to time upon not less than fifteen (15)
days prior notice by Sublandlord, Subtenant or its duly authorized
representative having knowledge of the following
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<PAGE> 29
facts will deliver to Sublandlord, or to such person or persons as the
Sublandlord may designate, a statement in writing certifying (a) that this
Sublease is unmodified and in full force and effect (or if there have been
modifications, that the Sublease as modified is in full force and effect); (b)
the date to which the Rent and other charges have been paid; (c) that to the
best of Subtenant's knowledge, the Sublandlord is not in default under any
provision of this Sublease or if in default, the nature thereof in detail. Any
such statement may be conclusively relied upon by any prospective purchaser or
encumbrancer of the Subleased Premises. Subtenant's failure to deliver such
statement within the specified time shall be conclusive upon Subtenant (a) that
this Sublease is in full force and effect, without modification except as may be
represented by Sublandlord; (b) that there are no uncured defaults in
Sublandlord's performance; and (c) that not more than one month's rent has been
paid in advance, or such failure may be considered by Sublandlord as a default
by Subtenant under this Sublease.
20. SUBORDINATION
This Sublease shall be subject and subordinate to the Prime Lease, any
ground lease and to any mortgage or deed of trust thereon or on the fee simple
interest in the Building or the land on which the Building is located.
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<PAGE> 30
21. CASUALTY AND CONDEMNATION
If the Prime Lease is terminated with respect to the Subleased Premises
pursuant to the casualty and condemnation provisions of the Prime Lease, this
Sublease shall automatically terminate at the same time. If the Prime Lease is
not terminated with respect to the Subleased Premises upon the occurrence of a
casualty or condemnation, the provisions of the Prime Lease with respect to
casualty or condemnation shall apply to this Sublease and the Subleased
Premises.
22. CONSENT OR APPROVAL OF PRIME LANDLORD
If the consent or approval of Prime Landlord is required under the Prime
Lease with respect to any matter relating to the Subleased Premises, Subtenant
shall, at its sole costs and expense, directly obtain such consent or approval
from the Prime Landlord. Sublandlord shall have no liability to Subtenant for
the failure of Prime Landlord to give its consent; however, Sublandlord will
cooperate with Subtenant, at Subtenant's sole costs and expense, in any
reasonable attempt to obtain Prime Landlord's consent. Provided that Sublandlord
undertakes Enforcement Efforts, Sublandlord shall have no liability to Subtenant
if the Prime Landlord shall default in the performance of any of its obligations
under the Prime Lease or breach any provision of the Prime Lease pertaining to
the Subleased Premises.
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<PAGE> 31
23. NOTICES
All notices given pursuant to the provisions of this Sublease shall be
in writing, addressed to the party to whom notice is given and sent registered
or certified mail, return receipt requested, in a postpaid envelope or by
nationally recognized overnight delivery service as follows:
To Subtenant:
2101 Harbor Bay Parkway, Suite 1000
Alameda, California 94502
Attention:_________________
To Sublandlord:
Lucent Technologies Inc.
475 South Street
Morristown, New Jersey 07962
Attention: Lease Administrator
with a copy to: Lucent Technologies Inc.
1701 Harbor Bay Parkway
Alameda, California 94502
Attention: Transaction Manager
All notices shall be deemed given upon receipt or rejection. Either
party by notice to the other may change or add persons and places where notices
are to be sent or delivered. In no event shall notice have to be sent on behalf
of either party to more than three (3) persons.
24. BROKERS
The parties warrant that they have had no dealings with any real estate
broker or agent in connection with this Sublease, except that Sublandlord has
engaged Cushman & Wakefield to
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<PAGE> 32
represent it in this transaction and Subtenant has engaged Mr. Chuck Campagnet
of Colliers Parrish to represent it in this transaction (collectively, the
"Broker(s)"). Each party covenants to pay, hold harmless and indemnify the other
from and against any and all costs, expenses or liabilities for any
compensation, commissions and charges claimed by any other broker or agent with
respect to this Sublease or the negotiation thereof, based upon alleged dealings
with the indemnifying party.
25. SUBLANDLORD'S AND SUBTENANT'S POWER TO EXECUTE
Sublandlord and Subtenant covenant, warrant and represent that they have
full power and proper authority to execute this Sublease.
26. CONSENT TO SUBLEASE BY PRIME LANDLORD
This Sublease shall not become operative until and unless the Prime
Landlord has given to Sublandlord its consent hereto and to all matters related
to this Sublease for which Prime Landlord's consent is required pursuant to the
Prime Lease, including but not limited to Subtenant's intended use of the
Subleased Premises and Subtenant's construction of the Subtenant Improvements.
Sublandlord shall use commercially reasonable efforts to obtain the consent of
the Prime Landlord, however, Sublandlord shall not be responsible for Prime
Landlord's failure to consent to this Sublease or other matters related thereto.
Should Prime Landlord not so consent, each party shall be released from all
obligations with respect hereto and neither
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<PAGE> 33
party shall have any further rights in law or in equity with respect to this
Sublease.
27. HOLDOVER
Subtenant covenants and agrees that, notwithstanding Section 12 of the
Prime Lease, Subtenant shall not hold over after the expiration or earlier
termination of this Sublease without the express prior written consent of
Sublandlord or the Prime Landlord. In the event that Subtenant does hold over
without such consent, Subtenant shall become a tenant at sufferance and shall
pay Sublandlord a monthly rent equal to two hundred percent (200%) of the
Monthly Basic Rent in effect during the last thirty (30) days of the Term. In
addition to the foregoing monthly rent, Subtenant shall be liable to Sublandlord
for any and all amounts due and owing pursuant to the terms and provisions of
Section 12 of the Prime Lease.
28. DEFAULT AND REMEDIES
a. The occurrence of any one or more of the following events shall
constitute a material default and breach of this Sublease by Subtenant: (i) any
act or omission which constitutes a default under the Prime Lease; (ii) the
failure by Subtenant to make any payment of rent or any other payment required
to be made by Subtenant hereunder, as and when due, where such failure shall
continue for a period of five (5) days after written notice thereof from
Sublandlord to Subtenant; and (iii) the failure by Subtenant to perform any of
the covenants, conditions or
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<PAGE> 34
provisions of this Sublease, where such failure shall continue for a period of
thirty (30) days after written notice thereof from Sublandlord to Subtenant,
provided, however, that if the nature of such failure is such that it cannot
reasonably be cured within said 30 day period, then Subtenant shall be deemed
not to be in default, provided Subtenant commences to cure within said 30 day
period and thereafter diligently prosecutes such cure to completion.
b. In the event of any such material default by Subtenant, Sublandlord
shall have all of the rights and remedies available to Prime Landlord under
Section 24 of the Prime Lease (including without limitation Section 24.5),
except that the term "Landlord" therein shall be deemed to refer to Sublandlord
and the term "Tenant" therein shall be deemed to refer to Subtenant. Sublandlord
may at any time after a material default by Subtenant, with or without notice or
demand, exercise any of such rights or remedies available to Sublandlord.
29. ENTIRE AGREEMENT
This Sublease (which includes each of the Exhibits attached hereto)
contains the entire agreement between the parties and all prior negotiations and
agreements are merged into this Sublease. This Sublease may not be changed,
modified, terminated or discharged, in whole or in part, nor any of its
provisions waived except by a written instrument which (a) shall expressly refer
to this Sublease and (b) shall be executed by the party against whom
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<PAGE> 35
enforcement of the change, modification, termination, discharge or waiver shall
be sought.
30. TABLE OF CONTENTS - CAPTIONS
The Table of Contents and the captions appearing in this Sublease are
inserted only as a matter of convenience and do not define, limit, construe or
describe the scope or intent of the sections of this Sublease nor in any way
affect this Sublease.
31. SURVIVAL
The covenants, indemnities and other obligations contained in this
Sublease shall survive the expiration of the Term or earlier termination of this
Sublease.
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<PAGE> 36
IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be
properly executed as of the day and year first above written.
ATTEST/WITNESS: SUBLANDLORD
LUCENT TECHNOLOGIES INC.,
a Delaware corporation
By: /s/ Daniel E. Carrick By: /s/ Deborah J. Quok (SEAL)
-------------------------------- --------------------------
Daniel E. Carrick Paralegal Deborah J. Quok, Transaction Manager
- ----------------------------------- ------------------------------------
Name and Title Name and Title
ATTEST/WITNESS: SUBTENANT
AVIGEN, INC.,
a Delaware corporation
By: /s/ John Monahan (SEAL)
- ----------------------------------- --------------------------
John Monahan, CEO
- ----------------------------------- -----------------------------
Name and Title Name and Title
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<PAGE> 37
CONSENT OF PRIME LANDLORD
Prime Landlord executes this Sublease to evidence its consent to the
Sublease and to the provisions herein set forth.
ATTEST/WITNESS: PRIME LANDLORD
ARE-1201 HARBOR BAY, LLC,
a Delaware limited liability company
By:
- ----------------------------------- ---------------------------------
- ----------------------------------- ------------------------------------
Name and Title Name and Title
- 33 -
<PAGE> 38
EXHIBIT A
Description of Subleased Premises
[Graphic depicting a floor plan for suite 150 of the building located at 1201
Harbor Bay Parkway, Alameda, Ca.]
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<PAGE> 39
EXHIBIT B
Intentionally Deleted.
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<PAGE> 40
EXHIBIT C
Prime Lease
A copy of the document that comprises Exhibit C will be provided supplementally
to the Commission upon request.
- 36 -
<PAGE> 41
CONSENT TO SUBLEASE
This Consent to Sublease (this "CONSENT") is made as of February 10,
2000, by ARE - 1201 HARBOR BAY LLC, a Delaware limited liability company, having
an address of 135 North Los Robles Avenue, Suite 250, Pasadena, California 91101
("LANDLORD"), LUCENT TECHNOLOGIES INC. a Delaware corporation, having an address
of 475 South Street, Morristown, New Jersey 07962 ("TENANT"), AND AVIGEN, INC.,
a Delaware corporation, having an address of 1201 Harbor Bay Parkway, Alameda,
California 94502 ("SUBLESSEE") with reference to the following Recitals.
R E C I T A L S
A. Landlord and Ascend Communications, Inc. ("ASCEND") entered into
that certain Lease (the "Lease") dated June 1, 1998, wherein Landlord leased to
Ascend certain premises (the "PREMISES") consisting of approximately 22,348
rentable square feet in the building located at 1201 Harbor Bay Parkway,
Alameda, California, as more particularly described in the Lease. Ascend was
acquired by Tenant as of October 1, 1999.
B. Tenant desires to sublease to Sublessee the Premises in two
phases, the first of which consists of 15,348 rentable square feet (the "PHASE I
SUBLEASED PREMISES") and the second of which consists of 7.000 rentable square
feet (the "PHASE 11 SUBLEASED PREMISES" and with the Phase I Subleased Premises
the "SUBLEASED PREMISES") all as more particularly described in and pursuant to
the provisions of that certain Sublease dated as of February 1, 2000 (the
"SUBLEASE"), a copy of which is attached hereto.
C. Tenant desires to obtain Landlord's consent to the Sublease.
NOW, THEREFORE, in consideration of the foregoing and the agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord hereby consents to:
(a) the sublease of the Subleased Premises to Sublessee,
(b) notwithstanding the restrictions contained in the Lease,
Sublessee's use of the Subleased Premises for research and
development laboratory, related office and other related
uses consistent with the character of the Project;
(c) the installation of the alterations being made to the
Subleased
<PAGE> 42
Premises in connection with the Sublease (the "Sublease
Improvements"),
such consent being subject to and upon the following terms and conditions to
which Tenant and Sublessee hereby agree:
1. All initially capitalized terms not otherwise defined in this Consent
shall have the meanings set forth in the Lease unless the context
clearly indicates otherwise.
2. This Consent shall not be effective and the Sublease shall not be
valid nor shall Sublessee take possession of the Subleased Premises
unless and until Landlord shall have received: (a) a fully executed
counterpart of the Sublease, (b) a fully executed counterpart of this
Consent, and (c) reimbursement from Tenant for all of Landlord's costs and
expenses in preparing and negotiating this Consent and the documents described
herein, not to exceed $2,500.
3. Landlord's consent set forth herein is subject to the following
additional conditions:
(a) Landlord shall have received and approved the plans and
specifications for Sublessee's proposed alterations, additions or improvements
to be made in connection with Sublessee's occupancy of the Subleased Premises
(collectively, "Sublease Improvements"): provided, however, that Tenant and
Sublessee hereby acknowledge and agree that notwithstanding anything to the
contrary contained in the Lease, Landlord shall have the right to require that
the Sublease Improvements be removed at the expiration or earlier termination of
the Lease at no cost or expense to Landlord and that the Subleased Premises be
fully restored to their condition prior to the installation of such Sublease
Improvements with all damage occasioned by such removal being fully repaired,
provided, however, that if upon any such expiration or earlier termination of
the Lease (i) Sublessee immediately succeeds to Tenant's interest in the
Subleased Premises, and (ii) Landlord continues to hold the Restoration Deposit,
as defined below, Landlord shall not require the removal of the Sublease
Improvements upon any such expiration or earlier termination of the Lease.
(b) Landlord shall have received a restoration deposit in the amount
of $30 per rentable square foot of the Sublease Improvements ("RESTORATION
DEPOSIT"), which shall be held by Landlord against the obligation of Tenant to
restore the Premises to their condition existing before the construction of the
Sublease Improvements. Such Restoration Deposit shall be held by Landlord as
security for the performance of Tenant's restoration obligations under the
Lease. The Restoration Deposit is not an advance rental deposit or a measure of
Landlord's damages in case
<PAGE> 43
of Tenant's default. Upon Tenant's failure, following an election by Landlord to
require removal of the Sublease Improvement to remove such Sublease Improvements
and to restore the Sublease Premises to their condition existing before the
construction of the Sublease Improvements, Landlord may use all or part of the
Restoration Deposit to cause such removal and restoration, without prejudice to
any other remedy provided herein or provided by law. Landlord's obligation
respecting the Restoration Deposit is that of a debtor, not a trustee-, no
interest shall accrue thereon. The Restoration Deposit shall be the property of
Landlord, but shall be paid to Tenant when Tenant's obligations under this Lease
have been completely fulfilled. Landlord shall be released from any obligation
with respect to the Restoration Deposit upon transfer of this Lease and the
Premises to a person or entity assuming Landlord's obligations under this
Section 3(b). Tenant hereby waives the provisions of any law, now or hereafter
in force, which provide that Landlord may claim from a security deposit only
those sums reasonably necessary to remedy defaults in the payment of Rent, to
repair damage caused by Tenant or to clean the Premises. If Tenant shall fully
perform the provisions of Section 3(a) hereof, the Restoration Deposit, or any
balance thereof, shall be returned to Tenant (or, at Landlord's option, to the
last assignee of Tenant's interest hereunder) within 90 days after the
expiration or earlier termination of this Lease. Following any use by Landlord
of the Restoration Deposit to remove such Sublease Improvements, any remaining
balance thereof shall be returned to Tenant (or, at Landlord's option, to the
last assignee of Tenant's interest hereunder).
(c) Landlord shall have received and approved a Hazardous Materials
List and all Documents relating to Sublessee's proposed use of the Subleased
Premises; and
(d) The Lease shall be amended by adding the following to the end of
the second grammatical sentence of Section 17.1
"including, without limitation, requiring a Restoration Deposit (as
such term is defined in that certain Consent to Sublease dated as of
February 10, 2000, by and among Landlord, Tenant, and Avigen, Inc.),
in connection with any such Permitted Alteration which, in Landlord's
reasonable opinion, substantially destroy the office improvements
existing in the Lucent Space as of the date hereof."
(e) The Lease shall be amended by deleting Section 40 of the Lease
and substituting the following therefor.
"40. ENVIRONMENTAL REQUIREMENTS.
"(a) PROHIBITION/COMPLIANCE/INDEMNITY. Tenant shall not cause or permit any
Hazardous Materials (as hereinafter defined) to be brought upon, kept or used in
or about the Premises or the Project in violation of applicable law by Tenant,
its agents, employees. contractors or invitees. If Tenant breaches the
obligation stated in the preceding sentence, or if the
<PAGE> 44
presence of Hazardous Materials in the Premises during the Term or any holding
over results in contamination of the Premises, the Project or any adjacent
property or if contamination of the Premises, the Project or any adjacent
property by Hazardous Materials Is brought into the Premises by anyone other
than Landlord and Landlord's employees agents and contractors otherwise occurs
during the Term or any holding over, Tenant hereby indemnifies and shall defend
and hold Landlord, its officers, directors, employees, agents and contractors
harmless from any and all claims, judgments, damages, penalties, fines, costs,
liabilities, or losses (including, without limitation, diminution in value of
the Premises or any portion of the Project, damages for the loss or restriction
on use of rentable or usable space or of any amenity of the Premises or the
Project, damages arising from any adverse impact on marketing of space in the
Premises or the Project, and sums paid in settlement of claims, attorneys' fees,
consultant fees and expert fees) which arise during or after the Term as a
result of such contamination. This indemnification of Landlord by Tenant
includes, without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal, or
restoration work required by any federal, state or local governmental agency or
political subdivision because of Hazardous Materials present in the air, soil or
ground water above, on, or under the Premises. Without limiting the foregoing,
if the presence of any Hazardous Materials on the Premises, the Project or any
adjacent property caused or permitted by Tenant results in any contamination of
the Premises, the Project or any adjacent property, Tenant shall promptly take
all actions at its sole expense and in accordance with applicable law as are
necessary to return the Premises, the Project or any adjacent property to the
condition as nearly as economically practicable to the condition existing prior
to the time of such contamination, but in no event leaving more residual
contamination than permitted by law, provided that Landlord's approval of such
action shall first be obtained, which approval shall not unreasonably be
withheld so long as such actions would not potentially have any material adverse
long-term or short-term effect on the Premises or the Project.
" (b) BUSINESS. Landlord acknowledges that it is not the intent of this Section
40 to prohibit Tenant from using the Premises for the Permitted Use. Tenant may
operate its business according to the custom of the industry so long as the use
or presence of Hazardous Materials is strictly and properly monitored according
to all then applicable governmental requirements. As a material inducement to
Landlord to allow Tenant to use Hazardous Materials in connection with its
business, Tenant agrees to deliver to Landlord prior to the Commencement Date a
list identifying each type of Hazardous Materials to be present on the Premises
and setting forth any and all governmental approvals or permits required in
connection with the presence of such Hazardous Materials on the Premises
("HAZARDOUS MATERIALS LIST"). Tenant shall deliver to Landlord an updated
Hazardous Materials List at least once a year and shall also deliver an updated
list before any new Hazardous Material is brought onto the Premises. Tenant
<PAGE> 45
shall deliver to Landlord true and correct copies of the following documents
(the "HAZ MAT DOCUMENTS") relating to the handling, use, storage, disposal and
emission of Hazardous Materials prior to the Commencement Date, or if
unavailable at that time, concurrent with the receipt from or submission to a
governmental agency: permits; approvals; reports and correspondence; storage and
management plans, notice of violations of any laws; plans relating to the
installation of any storage tanks to be installed in or under the Project
(provided, said installation of tanks shall only be permitted after Landlord has
given Tenant its written consent to do so, which consent may be withheld in
Landlord's sole and absolute discretion); and all closure plans or any other
documents required by any and all federal, state and local governmental agencies
and authorities for any storage tanks installed in, on or under the Project for
the closure of any such tanks. Tenant is not required, however, to provide
Landlord with any portion(s) of the Haz Mat Documents containing information of
a proprietary nature which, in and of themselves, do not contain a reference to
any Hazardous Materials or hazardous activities. It is not the intent of this
Section to provide Landlord with information which could be detrimental to
Tenant's business should such information become possessed by Tenant's
competitors.
"(c) TENANT REPRESENTATION AND WARRANTY. Avigen hereby represents and warrants
to Landlord that (i) neither Avigen nor any of its legal predecessors has been
required by any prior landlord, lender or governmental authority at any time to
take remedial action in connection with Hazardous Materials contaminating a
property which contamination was permitted by Avigen or such predecessor or
resulted from Avigen's or such predecessor's action or use of the property in
question, and (ii) Avigen is not subject to any enforcement order issued by any
governmental authority in connection with the use, disposal or storage of a
Hazardous Materials. If Landlord determines that this representation and
warranty was not true as of the date of this lease, Landlord shall have the
right to terminate this Lease in Landlord's sole and absolute discretion.
"(d) INSPECTION RIGHTS. Landlord shall have the right to conduct annual tests of
the Premises to determine whether any contamination has occurred as a result of
Tenant's use. Tenant shall be required to pay the cost of such annual test of
the Premises, provided, however, that if Tenant conducts its own tests of the
Premises using third party contractors and test procedures acceptable to
Landlord which tests are certified to Landlord, Landlord shall accept such tests
in lieu of the annual tests to be paid for by Tenant. In addition, at any time,
and from time to time pursuant to Section 31.3, prior to the expiration or
earlier termination of the Term, Landlord shall have the right to conduct
appropriate tests of the Premises and the Project to determine if contamination
has occurred as a result of Tenant's use of the Premises. If contamination has
occurred for which Tenant is liable under this Section 30, Tenant shall pay all
costs to conduct such tests. If no such contamination is found, Landlord shall
<PAGE> 46
pay the costs of such tests (which shall not constitute an Operating Expense).
Landlord shall provide Tenant with a copy of all third party, non-confidential
reports and tests of the Premises made by or on behalf of Landlord during the
Term without representation or warranty and subject to a confidentiality
agreement. Landlord's receipt of or satisfaction with any environmental
assessment in no way waives any rights which Landlord may have against Tenant.
"(e) UNDERGROUND TANKS. If underground or other storage tanks storing Hazardous
Materials located on the Premises or the Project are used by Tenant or are
hereafter placed on the Premises or the Project by Tenant, Tenant shall monitor
such storage tanks, maintain appropriate records, implement reporting
procedures, properly close any underground storage tanks, and take or cause to
be taken all other actions necessary or required under applicable state and
federal law, as such now exists or may hereafter be adopted or amended in
connection with the use, maintenance, operation and closure of such storage
tanks.
"(f) TENANT'S OBLIGATIONS. Tenant's obligations under this Section 40 shall
survive the expiration or earlier termination of the Lease. During any period of
time after the expiration or earlier termination of this Lease required by
Tenant or Landlord to complete the removal from the Premises of any Hazardous
Materials as required pursuant to Tenant's obligations hereunder and the release
and termination of any licenses or permits held by Tenant or any person claiming
by or through Tenant restricting the use of the Premises, Tenant shall continue
to pay the full Rent in accordance with this Lease for any portion of the
Premises not relet by Landlord in Landlord's sole discretion, which Rent shall
be prorated daily.
"(g) DEFINITIONS. As used herein, the term "ENVIRONMENTAL REQUIREMENTS" means
all applicable present and future statutes, regulations, ordinances, rules,
codes, judgments, orders or other similar enactments of any governmental
authority or agency regulating or relating to health safety, or environmental
conditions on, under, or about the Premises or the Project, or the environment,
including without limitation, the following: the Comprehensive Environmental
Response; Compensation and Liability Act; the Resource Conservation and Recovery
Act; and all state and local counterparts thereto, and any regulations or
policies promulgated or issued thereunder. As used herein, the term "HAZARDOUS
MATERIALS" means and includes any substance, material, waste, pollutant, or
contaminant listed or defined as hazardous or toxic, or regulated by reason of
its impact or potential impact on humans, animals and/or the environment under
any Environmental Requirements, asbestos and petroleum, including crude oil or
any fraction thereof, natural gas liquids, liquefied natural gas, or synthetic
gas usable for fuel (or mixtures of natural gas and such synthetic gas). As
defined in Environmental Requirements, Tenant is and shall be deemed to be the
"operator" of Tenant's "facility" and the "owner" of all Hazardous Materials
brought on the Premises by Tenant, its agents,
<PAGE> 47
employees, contractors or invitees, and the wastes, by-products, or residues
generated, resulting, or produced therefrom "
(f) The Lease shall be amended by deleting the entire Right to Extend Term
Addendum.
(g) Landlord neither approves nor disapproves the terms, conditions and
agreements contained in the Sublease, all of which shall be subordinate and at
all times subject to (a) all of the covenants, agreements, terms, provisions and
conditions contained in the Lease, (b) superior ground leases, mortgages, deeds
of trust, or any other hypothecation or security now existing or hereafter
placed upon the real property of which the Premises are a part and to any and
all advances secured thereby and to all renewals, modifications, consolidations,
replacements and extensions thereof, and (c) all matters of record affecting the
Premises and all laws, ordinances and regulations now or hereafter affecting the
Premises.
4. Nothing contained in the Sublease shall be construed to:
(a) modify, waive, impair, or affect any of the terms, covenants or
conditions contained in the Lease (including Tenants obligation to obtain any
required consents for any other or future sublettings), or to waive any breach
thereof, or any rights or remedies of Landlord under the Lease against any
person, firm, association or corporation liable for the performance thereof, or
to enlarge or increase Landlord's obligations or liabilities under the Lease
(including, without limitation, any liability to Sublessee for any portion of
the security deposit held by Tenant under the Sublease), and all terms,
covenants and conditions of the Lease are hereby declared by each of Landlord
and Tenant to be in full force and effect; or
(b) require Landlord to accept any payments from Sublessee on behalf
of Tenant;
In addition Tenant shall remain liable and responsible for the due keeping.
performance and observance of all the terms, covenants and conditions set forth
in the Lease on the part of the Tenant to be kept, performed and observed and
for the payment of the annual rent. additional rent and all other sums now and
hereafter becoming payable thereunder for all of the Premises, including,
without limitation, the Subleased Premises.
5 Notwithstanding anything in the Sublease to the contrary:
(a) Sublessee does hereby expressly assume and agree to be bound by
and to perform and comply with, for the benefit of Landlord, each and every
obligation of Tenant under the Lease to the extent applicable to the Subleased
Premises, other than the obligation to pay Rent to Landlord. Landlord and
Sublessee each hereby release the other, and waive their respective rights of
recovery against the other for direct or consequential loss or damage arising
out of or incident to the perils covered by property insurance carried by such
party to the extent of such insurance and waive any right of subrogation which
might otherwise exist in or accrue to any person on account thereof. Nothing
herein shall, as between Tenant and Sublessee, modify, alter or affect any of
the terms of the Sublease.
<PAGE> 48
(b) Tenant and Sublessee agree to each of the terms and conditions of
this Consent, and upon any conflict between the terms of the Sublease and this
Consent, the terms of this Consent shall control.
(c) The Sublease shall be deemed and agreed to be a sublease only and
not an assignment and there shall be no further subletting or assignment of all
or any portion of the Premises demised under the Lease (including the Subleased
Premises demised by the Sublease) except in accordance with the terms and
conditions of the Lease.
(d) If Landlord terminates the Lease as a result of a default It by
Tenant thereunder or the Lease terminates for any other reason, the Sublease
shall automatically terminate concurrently therewith, provided, however, if
Landlord elects, in its sole and absolute discretion and without obligation,
exercisable by giving written notice to Sublessee within 7 days of such
termination (a "REINSTATEMENT NOTICE"), to reinstate the Sublease and Sublessee
shall attorn to Landlord, in which case the Sublease shall become and be deemed
to be a direct lease between Landlord and Sublessee. If Landlord exercises the
option provided under this section, Landlord shall undertake the obligations of
Tenant under the Sublease from the time of the Reinstatement Notice through the
expiration or earlier termination of the Sublease, but Landlord shall not (a) be
liable for more than 1 month's rent or any security deposit paid by Sublessee
(except to the extent actually delivered to Landlord), (b) be liable for any
prior act or omission of Tenant under the Lease prior to the Reinstatement
Notice or for any other defaults of Tenant under the Sublease prior to the
Reinstatement Notice, (c) be subject to any defenses or offsets previously
accrued which Sublessee may have against Tenant for any period prior to the
Reinstatement Notice, or (d) be bound by any changes or modifications made to
the Sublease without the prior written consent of Landlord.
(e) Tenant and Sublessee acknowledge and agree that if Tenant or
Landlord elects to terminate the Lease pursuant to the terms thereof, Landlord
shall have no responsibility, liability or obligation to Sublessee, and the
Sublease shall terminate except as expressly provided in Section 6(d) above
6. Any act or omission of Sublessee or anyone claiming under or through
Sublessee that violates any of the provisions of the Lease shall be deemed a
violation of the Lease by Tenant.
7. Upon a default by Tenant under the Lease, Landlord may proceed directly
against Tenant, any guarantors or anyone else liable under the Lease or the
Sublease without first exhausting Landlord's remedies against any other person
or entity liable thereon to Landlord. If Landlord gives Sublessee notice that
Tenant is in default under the Lease, Sublessee shall
<PAGE> 49
thereafter make directly to Landlord all payments otherwise due Tenant, which
payments will be received by Landlord without any liability to Landlord except
to credit such payments against amounts due under the Lease. The mention in this
Consent of any particular remedy shall not preclude Landlord from any other
remedy in law or in equity.
8. Tenant shall pay any broker commissions or fees that may be payable as a
result of the Sublease and Tenant hereby indemnifies and agrees to hold Landlord
harmless from and against any loss or liability arising there from or from any
other commissions or fees payable in connection with the Sublease which result
from the actions of Tenant. Sublessee hereby indemnifies and agrees to hold
Landlord harmless from and against any loss or liability arising from any
commissions or fees payable in connection with the Sublease which result from
the actions of Sublessee.
9. Tenant and Sublessee agree that the Sublease will not be modified or amended
in any way without the prior written consent of Landlord, which consent shall
not be unreasonably withheld or delayed. Tenant and Sublessee hereby agree that
it shall be reasonable for Landlord to withhold its consent to any modification
or amendment of the Sublease which would change the permitted use of the
Subleased Premises or which would affect Landlord's status as a real estate
investment trust. Any modification or amendment of the Sublease without
Landlord's prior written consent shall be void and of no force or effect.
10. This Consent may not be changed orally, but only by an agreement in writing
signed by Landlord and the party against whom enforcement of any change is
sought.
11. This Consent may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which when taken together shall
constitute but one and the same instrument.
12. This Consent and the legal relations between the parties hereto shall be
governed by and construed and enforced in accordance with the internal laws of
the State in which the Property is located, without regard to its principles of
conflicts of law.
[ SIGNATURES ON NEXT PAGE ]
<PAGE> 50
IN WITNESS WHEREOF, Landlord, Tenant and Sublessee have caused their
duly authorized representatives to execute this Consent as of the date first
above written.
LANDLORD: ARE - 1201 HARBOR BAY LLC,
a Delaware limited liability company
BY: ARE - QRS Corp., a Maryland corporation,
Its managing member
By: /s/ Lynn Anne Shapiro
----------------------------------------
Its: General Counsel
----------------------------------------
TENANT: LUCENT TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ illegible
----------------------------------------
Its: Transaction Manager
----------------------------------------
SUBLESSEE: AVIGEN, INC.,
a Delaware corporation
By: /s/ John Monahan
----------------------------------------
Its: CEO and President
----------------------------------------
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JUN-30-2000
<PERIOD-START> JUL-01-1999
<PERIOD-END> MAR-31-2000
<CASH> 11,061
<SECURITIES> 37,646
<RECEIVABLES> 83
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 48,790
<PP&E> 4,086
<DEPRECIATION> 2,854
<TOTAL-ASSETS> 52,211
<CURRENT-LIABILITIES> 1,345
<BONDS> 0
0
0
<COMMON> 15
<OTHER-SE> 50,702
<TOTAL-LIABILITY-AND-EQUITY> 52,211
<SALES> 0
<TOTAL-REVENUES> 58
<CGS> 0
<TOTAL-COSTS> 13,432
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 70
<INCOME-PRETAX> (12,017)
<INCOME-TAX> 10
<INCOME-CONTINUING> (12,027)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (12,027)
<EPS-BASIC> (0.87)
<EPS-DILUTED> (0.87)
</TABLE>
