Exhibit 10.1
OFFICE LEASE
by and between SPUS8 2100 POWELL, LP,
a Delaware limited partnership, as Landlord
and
DYNAVAX TECHNOLOGIES CORPORATION,
a Delaware corporation, as Tenant,
Premises: 2100 Powell Street
Suite 720
Emeryville, California 94608
TABLE OF CONTENTS
ARTICLE 1 BASIC LEASE PROVISIONS | 1 |
ARTICLE 2 DEMISE; USE; AND TERM | 3 |
ARTICLE 3 RENT; OPERATING EXPENSES; TAXES; AND ELECTRICITY | 4 |
ARTICLE 4 SECURITY DEPOSIT | 7 |
ARTICLE 5 USE; RULES AND REGULATIONS | 7 |
ARTICLE 6 SERVICES PROVIDED | 7 |
ARTICLE 7 ALTERATIONS | 8 |
ARTICLE 8 SURRENDER | 8 |
ARTICLE 9 DAMAGE OR DESTRUCTION | 9 |
ARTICLE 10 EMINENT DOMAIN | 9 |
ARTICLE 11 INSURANCE; WAIVER OF SUBROGATION | 9 |
ARTICLE 12 TRANSFER OF LANDLORD’S INTEREST | 10 |
ARTICLE 13 TRANSFER OF TENANT’S INTEREST | 10 |
ARTICLE 14 RELEASE, WAIVER AND INDEMNIFICATION | 12 |
ARTICLE 15 SUBORDINATION; ATTORNMENT; ESTOPPEL CERTIFICATE | 13 |
ARTICLE 16 LANDLORD’S RIGHT OF ACCESS | 14 |
ARTICLE 17 HOLDING OVER | 14 |
ARTICLE 18 HAZARDOUS MATERIALS | 14 |
ARTICLE 19 RELOCATION | 15 |
ARTICLE 20 DEFAULT | 15 |
ARTICLE 21 REMEDIES | 16 |
ARTICLE 22 MISCELLANEOUS | 18 |
SIGNATURE PAGE | 27 |
RIDER TO LEASE | 28 |
EXHIBIT A – FLOOR PLAN | 29 |
EXHIBIT B – WORK LETTER | 30 |
EXHIBIT C – CONFIRMATION OF LEASE TERMS AND DATES | 31 |
EXHIBIT D – RULES AND REGULATIONS | 32 |
OFFICE LEASE
This Lease is effective upon the full execution hereof and dated for identification purposes only as of this 15th day of March, 2022, and is made by the parties hereinafter identified as Landlord and Tenant and upon the following terms and conditions:
ARTICLE 1
BASIC LEASE PROVISIONS
2100 Powell Street, Suite 125
Emeryville, CA 94608 ATTN: Property Manager
With a copy of all notices going to: SPUS8 2100 Powell, LP (Landlord) c/o CBRE Investment Management
601 S. Figueroa Street 49th Floor
Los Angeles, California 90017 Attn: Asset Manager – 2100 Powell
Rent payment address: SPUS8 2100 Powell, LP
P.O. Box 743525
Los Angeles, CA 90074-3525
2100 Powell Street, Suite 900
Emeryville, CA 94608 Attn: Attn: Jeff Coon
At all times with a copy to:
DYNAVAX TECHNOLOGIES CORPORATION
2100 Powell Street, Suite 900
Emeryville, CA 94608 Attn: John Slebir
Following the Commencement Date:
DYNAVAX TECHNOLOGIES CORPORATION
2100 Powell Street, Suite 720
Emeryville, CA 94608 Attn: Jeff Coon
At all times with a copy to:
DYNAVAX TECHNOLOGIES CORPORATION
2100 Powell Street, Suite 720
Emeryville, CA 94608 Attn: Jeff Coon
Attn: John Slebir
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| Monthly | Monthly |
Months | Base Rent / RSF | Installment of Base Rent |
Commencement Date – Month 2 | $4.65 | $ 0.00* |
Month 3 – Month 12 | $4.65 | $37,446.45 |
Month 13 – Month 24 | $4.79 | $38,573.87 |
Month 25 – Month 36 | $4.93 | $39,701.29 |
Month 37 – Expiration Date | $5.08 | $40,909.24 |
* Notwithstanding anything herein to the contrary (including the table above), Landlord shall abate one hundred percent (100%) of the first two (2) full installments of Base Rent following the Commencement Date (the “Abatement”). If the Commencement Date is other than the first day of a calendar month, then the first and last months of the rental abatement period shall be prorated for the partial calendar months so that Tenant receives two (2) full months of Base Rent abatement. Such Abatement shall apply solely to payment of the monthly installments of Base Rent, but shall not be applicable to any other charges, expenses or costs payable by Tenant under this Lease. In the event that Tenant defaults under the terms and conditions of the Lease beyond any applicable notice and cure period and Landlord elects to terminate this Lease or recovers possession of the Premises through judicial means, the unamortized portion of all conditionally abated rental shall become fully liquidated and immediately due and payable as of the date of Landlord’s termination.
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Tenant’s Broker: Cresa Partners
$125.00 per month per unreserved Parking Space (subject to change upon thirty (30) days’ advance written notice to Tenant), payable as Rent. Tenant shall be liable for any taxes on paid parking spaces. Parking access cards are initially provided to Tenant at no charge, but Tenant shall pay a Building standard charge for each replacement parking access card (currently $15.00 per card).
Item | Amount |
Security Deposit: | $40,909.24 |
Base Rent for Month 3: | $37,446.45 |
Total due on execution: | $78,355.69 |
The words identified in this Article 1 shall have the meanings ascribed to them in this Article 1 for all purposes of this Lease.
ARTICLE 2: DEMISE AND TERM. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the Premises in its present “as is” condition for the Term and upon the terms, covenants and conditions set forth in this Lease. Landlord represents that, as of the Commencement Date, all structural elements and systems serving the Premises are in good working order and condition. In the event of a breach of the foregoing representation, and Tenant, within six (6) months following the Commencement Date delivers written notice to Landlord setting forth in
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reasonable detail a description of the breach, Landlord shall rectify the same at Landlord’s sole cost and expense. The term of this Lease shall commence on the Commencement Date and expire on the Expiration Date. Landlord shall provide and install standard suite signage on multi-tenant floors. Subsequent changes to signage shall be at the sole expense of Tenant and subject to Landlord’s review and approval, not to be unreasonably withheld.
ARTICLE 3: RENT; OPERATING EXPENSES; TAXES; AND ELECTRICITY
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casualty to the extent insurance proceeds are received by Landlord or in the event Landlord has elected to self-insure for such perils; (P) the cost of correcting any building code, violation of applicable laws, or other violations which were violations prior to the Commencement Date of this Lease; (Q) the cost of containing, removing, or otherwise remediating any contamination of the Complex (including, without limitation, the underlying land and ground water), Building or Premises by any Hazardous Substances (hereinafter defined) where such contamination was not caused by Tenant; and (R) costs for sculpture, paintings, or other objects of art (and insurance thereon or extraordinary security in connection therewith) (excepting commercially reasonable amounts for holiday decorations, which shall be permitted Operating Expenses). Subject to the provisions of this definition, the determination of Operating Expenses shall otherwise be made in accordance with sound accounting and management principles consistently applied. In the calculation of any expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to affect an equitable proration of bills for services rendered to the Building and to any other property owned by Landlord or an affiliate of Landlord. Landlord shall not recover more than one hundred percent (100%) of Operating Expenses actually incurred by Landlord.
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determines that Taxes or Operating Expenses for such Adjustment Year have increased or will increase, Landlord may deliver to Tenant an updated estimate of Adjustments for such Adjustment Year, provided that such estimate shall not be updated more than once per calendar year. In addition, Tenant shall pay to Landlord within thirty (30) days after receipt of any such estimate of Adjustments, the amount, if any, by which the aggregate installments of the Adjustments provided in such estimate of Adjustments exceeds the aggregate installments of the Adjustments paid by Tenant with respect to such prior months. Within one hundred twenty (120) days after the end of the Base Year and each Adjustment Year, Landlord shall send to Tenant a written statement (“Statement”) accompanied by reasonable backup detail showing (i) the calculation of the Adjustments for such Adjustment Year, (ii) the aggregate amount of the Adjustments previously paid by Tenant for such Adjustment Year, and (iii) the amount, if any, by which the aggregate amount of the installments of Adjustments paid by Tenant with respect to such Adjustment Year exceeds or is less than the actual Adjustments for such Adjustment Year. Tenant shall pay the amount of any deficiency to Landlord within thirty (30) days after Tenant’s receipt of such Statement. Any excess shall be credited by Landlord against the next payment or payments of Rent due under this Lease, except that if a credit is due to Tenant after termination of this Lease, Landlord shall pay to Tenant any excess remaining within thirty (30) days after Tenant’s receipt of the Statement.
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ARTICLE 4: SECURITY DEPOSIT. Landlord shall not be obligated to hold the Security Deposit in a separate fund and may commingle the Security Deposit with its other funds. No interest shall be payable with respect to the Security Deposit. In the event of any default by Tenant hereunder which continues beyond all applicable notice and cure periods, Landlord shall have the right, but shall not be obligated, to apply or retain all or any portion of the Security Deposit in payment of Tenant’s obligations hereunder, but any such application or retention shall not have the effect of curing any such default. Upon expiration or earlier termination of the Term hereof, the Security Deposit (or the undisputed balance thereof) shall be returned to Tenant no later than forty-five (45) days following such expiration. Landlord or any owner of the Building may transfer or assign the Security Deposit to any new owner of the Building or may credit the Security Deposit against the purchase price of the Building and upon such transfer or credit all liability of the transferor or assignor shall cease and come to an end, so long as the transferee assumes all obligations hereunder. No Mortgagee (as hereinafter defined) or person or entity who acquires legal or beneficial title to the Building from such Mortgagee shall be liable for the return of the Security Deposit unless such funds are actually received by such Mortgagee or purchaser.
ARTICLE 5: USE; RULES AND REGULATIONS. Tenant may only use the Premises for the Permitted Use. Tenant shall not commit any annoyance, waste, nuisance, act or thing against public policy, or which may unreasonably disturb the quiet enjoyment of Landlord or any other tenant or occupant of the Building or Complex. Tenant and or its agents, employees or contractors shall not deface or damage the Building or Complex in any manner. Tenant shall comply, and shall cause its employees, agents, clients, customers, guests and invitees to comply, with all applicable laws as well as the rules and regulations attached hereto as Exhibit D, and such reasonable revised or reasonable additional rules and regulations adopted by Landlord during the Term and provided to Tenant in writing. In the event of a conflict between the terms of this Lease and the terms of said rules and regulations, the terms of this Lease shall control. Subject to Landlord’s obligation to provide any services required under this Lease, Tenant shall, at its own expense, keep the Premises clean, safe and in good repair and condition. Tenant shall have access to the Premises twenty-four (24) hours per day, seven (7) days per week. Notwithstanding anything to the contrary, Tenant shall not be required to make modifications of a structural or capital nature to the Premises or any other area required by any law, ordinance, or regulation that was in effect prior to the Commencement Date except to the extent necessitated, in whole or in part, by (i) Tenant’s use or occupancy of, or business (excluding general office use) conducted in, the Premises, (ii) any acts or omissions of Tenant, its employees, agents, or contractors, or (iii) alterations made by Tenant.
ARTICLE 6: SERVICES PROVIDED. Landlord shall maintain the common areas, landscaped areas, parking areas, Building systems, and structural components of the Building (including, without limitation, the structural elements within the Premises) in good condition and repair and substantially consistent with similar Class A office buildings in the submarket surrounding the Complex. Landlord shall furnish to the Building common areas and the Premises Building-standard services in a manner and quantity consistent with those provided by landlords of Similar Building, including, without limitation, (i) HVAC service (weekdays: 8:00 a.m. to 6:00 p.m., except holidays, which are currently the following: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day), (ii) janitorial service, (iii) hot and cold water at all times, (iv) passenger elevator service permitting access to the Premises at all times, except in the event of an emergency, and (v) other applicable utilities substantially consistent with the services provided by similar class-A office buildings in the applicable submarket (“Similar Buildings”). Any above-standard services or services requested to be provided outside of Building-standard hours
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may incur an extra cost to Tenant. Tenant shall be charged Landlord’s standard overtime HVAC charge (currently
$100.00 per hour) for each hour of use (with a minimum charge for four (4) hours of usage) of cooled or heated air outside of normal operating hours (which shall be no less than those hours stated above). Tenant shall notify property management, during normal operating hours, no less than twenty-four (24) hours prior to its intent to use heated or cooled air outside of normal operating hours. Landlord shall have exclusive control over all common areas of the Building and/or Complex, including the parking areas, and may take whatever actions as are commercially reasonable in exercising such control. Notwithstanding anything to the contrary, if: (i) Landlord ceases to furnish any service in the Building required to be provided under this Lease for a period in excess of five (5) consecutive days following Landlord’s actual knowledge of the same or Landlord’s receipt of written notice from Tenant of such interruption of service; (ii) such cessation does not arise as a result of an act or omission of Tenant; (iii) such cessation is not caused by a casualty or condemnation (as more fully set forth below); and (iv) as a result of such cessation, the Premises or a material portion thereof, is rendered untenantable and Tenant in fact ceases to use the Premises, or material portion thereof, then Tenant, as its sole remedy, shall be entitled to receive an abatement of Rent payable hereunder during the period beginning on the sixth (6th) day of such cessation and ending on the day when the service in question has been restored. In the event the entire Premises has not been rendered untenantable by the cessation in service, the amount of abatement that Tenant is entitled to receive shall be prorated based upon the percentage of the Premises so rendered untenantable and not used by Tenant.
ARTICLE 7: ALTERATIONS. Tenant shall not permit any alteration, improvement, addition or installation in or to the Premises without the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. Hanging art customarily associated with standard offices shall not require Landlord’s consent. Landlord shall respond to Tenant’s written requests for consent within thirty (30) days after receipt of such written request from Tenant. If Landlord does not approve or disapprove within thirty (30) days of receipt of such written request, then Tenant may submit its request to Landlord a second time (including all supporting documentation). If Landlord does not approve or disapprove Tenant’s request within five (5) days after such second request, Landlord shall be deemed to have granted its consent to such request. All Work shall comply with Landlord's reasonable requirements and Building standards (including, without limitation, energy and environmental standards), as well as any and all applicable municipal building codes and other applicable laws. All contractors and subcontractors must meet with Landlord’s reasonable insurance requirements, as may be revised from time to time, and meet with the prior written approval of Landlord, which approval shall not be unreasonably withheld, conditioned or delayed. Tenant agrees not to allow any lien of any mechanic or materialman to be placed or filed against the Premises or the Building. In case any such lien shall be filed, Tenant shall satisfy and release such lien of record, or, at Tenant’s sole cost and expense, provide a lien and completion bond in an amount equal to the estimated cost of such improvements, to insure Landlord against any liability for mechanic’s liens and to insure completion of the work within ten (10) business days after written (or actual) notice of such lien. Tenant shall pay to Landlord Landlord’s standard construction management fee of four percent (4%) of the hard and soft costs of all work, except for improvements that do not require Landlord’s consent. Notwithstanding the foregoing, Landlord’s consent shall not be required for, and the construction management fee shall not be applicable to, any alteration to the interior of the Premises that complies with the following requirements: (a) is non-structural in nature; (b) does not affect the roof or any area outside of the Premises;
ARTICLE 8: SURRENDER. Upon the expiration or sooner termination of this Lease, Tenant shall surrender possession of the Premises to Landlord and deliver all keys to the Premises and all locks therein to Landlord and make known to Landlord the combination of all combination locks in the Premises, and shall return the Premises and all equipment and fixtures of Landlord therein to Landlord in broom clean condition and in as good condition as when Tenant originally took possession, ordinary wear and tear excepted, and all of Tenant’s furniture, low voltage cabling (such as computer and telephone cables) and personal property removed, failing which Landlord may restore the Premises and such equipment and fixtures to such condition and Tenant shall pay the cost thereof to Landlord on
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demand. Any property remaining in the Premises following the expiration or sooner termination of this Lease shall be deemed to be the property of Landlord and Landlord may dispose of the same (this Lease being a bill of sale therefor), and Landlord shall not be responsible for keeping confidential any computer records, personnel files or other items left by Tenant. Notwithstanding anything herein to the contrary, Tenant shall not be required to remove (a) any alterations, improvements, additions, or installations existing in the Premises prior to the Commencement Date, and
(b) if Landlord’s consent was required, any alterations, improvements, additions, or installations made by or on behalf of Tenant unless Landlord informed Tenant, in writing, at the time Landlord approved the same that such item must be removed upon the expiration or earlier termination of this Lease (and if Landlord’s consent was not required, such alteration or improvement shall be removed).
ARTICLE 9: DAMAGE OR DESTRUCTION. If the Premises or the Building shall be so damaged or destroyed by fire or other casualty so as to render them untenantable for a period of in excess of one hundred eighty (180) days, then Landlord, at its sole option, shall have the right to cancel and terminate this Lease. If not terminated, then Landlord shall repair and restore the Premises with all reasonable speed to substantially the same condition as immediately prior to such damage or destruction, and the Rent or a just and proportionate part thereof, according to Tenant’s ability to utilize the Premises in its damaged condition, shall be abated from the date of the fire or other casualty until the Premises shall have been repaired and restored by Landlord. But if the Premises shall be so lightly damaged by fire or other casualty as not to be rendered untenantable, then Landlord agrees to repair the Premises with reasonable promptness and the rent accrued and accruing, shall not cease. “Untenantable” Premises shall be such as to not allow Tenant to transact and effectuate its operations efficiently in the ordinary course of business. If Landlord estimates that the Premises will remain untenantable for in excess of one hundred eighty (180) days, or if there is a casualty during the last twelve (12) months of the Term (as may be extended) and Landlord estimates that the Premises shall remain untenantable for in excess of thirty (30) days, then Tenant may elect to terminate this Lease by written notice delivered to Landlord within thirty (30) days following Landlord’s delivery to Tenant of the estimated duration that the Premises will remain untenantable.
ARTICLE 10: EMINENT DOMAIN. In the event that the whole or a substantial part of the Premises shall be condemned or taken in any manner for any public or quasi-public use (or sold under threat of such taking), and as a result thereof, the remainder of the Premises cannot be used for the same purpose as prior to such taking, the Lease shall terminate as of the date possession is taken. Landlord shall be entitled to receive the entire award, including the damages for the property taken and damages to the remainder, with respect to any condemnation proceedings affecting the Building; however, Tenant may make a separate claim against the condemnor for any damage to its business or for relocation costs.
ARTICLE 11: INSURANCE; WAIVER OF SUBROGATION.
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ARTICLE 12: TRANSFER OF LANDLORD’S INTEREST. As used in this Lease, the term “Landlord” means only the current owner of the fee title to the Building or the leasehold estate under a ground lease of the Building at the time in question. Each Landlord is obligated to perform the obligations of Landlord under this Lease only during the time such Landlord owns such interest or title. Any Landlord who transfers its title or interest in the Building is relieved of all liabilities for the obligations of Landlord under this Lease to be performed on or after the date of transfer. Tenant agrees to look solely to the transferee with respect to all matters in connection with this Lease.
ARTICLE 13: TRANSFER OF TENANT’S INTEREST. Tenant shall not sell, assign, encumber, mortgage or transfer this Lease or any interest therein, sublet or permit the occupancy or use by others of the Premises or any part thereof, or allow any transfer hereof of any lien upon Tenant’s interest by operation of law or otherwise (collectively, a “Transfer”) without the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. Without limitation to the generality of the reasons for which Landlord may withhold its consent, Landlord may withhold its consent if the proposed sublessee or assignee is a person or entity with whom Landlord is then negotiating to lease space in the Building or Complex or to another tenant or occupant of the Building or Complex (but only if Landlord has comparable space for lease in the Building for a comparable Term). Tenant shall pay to Landlord a flat fee of One Thousand Dollars ($1,000.00) for any request to Transfer. Tenant shall provide written notice of the proposed assignee, sublessee or transferee, as applicable, which notice shall provide Landlord with (i) the name and address of the proposed subtenant, assignee, pledgee, mortgagee or transferee, (ii) a reasonably detailed description of such person or entity’s business, (iii) detailed financial references for such person or entity,
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additional consideration) shall be and become the property of Landlord and shall be paid to Landlord as it is received by Tenant, less Tenant’s reasonable brokerage (excluding commissions paid to brokers who are Tenant’s affiliates) costs, marketing costs, tenant improvement costs, legal and other expenses (“Tenant’s Costs”) incurred in connection with such assignment or, in the case of a sublease, less the monthly pro rata share of such Tenant’s Costs as determined by dividing such Tenant’s Costs by the number of months in the term of such sublease. If Tenant shall sublet the Premises or any part thereof, Tenant shall be responsible for all actions and neglect of the subtenant and its officers, partners, employees, agents, and guests as if such subtenant and such persons were employees of Tenant. Nothing in this Section shall be construed to relieve Tenant from the obligation to obtain Landlord’s prior written consent to any proposed sublease. Tenant shall remain liable under this Lease (as may be amended) regardless of whether any Transfer was approved by Landlord or whether Landlord’s approval was required. Landlord shall have the right, to be exercised by giving written notice to Tenant within ten (10) business days after receipt of Tenant’s notice, to recapture the space described in Tenant’s notice and such recapture notice shall, if given, cancel and terminate this Lease; provided, however, such right shall not apply in connection with a Transfer to a Permitted Transferee (as hereinafter defined). If Landlord shall elect to give the aforesaid recapture notice with respect thereto, then the Term shall expire and end on the date stated in Tenant’s notice as fully and completely as if that date had been herein definitely fixed for the expiration of the Term.
Notwithstanding any provision of this Lease to the contrary, provided that Tenant remains liable on this Lease, provides Landlord with prior written notice and names of the applicable transferee and a copy of the applicable assignment or sublease agreement (unless Tenant is unable to do the foregoing because of confidentiality or legal requirements, in which event Tenant shall provide Landlord with written notice, name of the transferee, and such copy within ten (10) days after the effective date of the same), and Tenant is not then in default beyond any applicable notice and cure period, then the following transfers will not require Landlord’s prior consent (each a “Permitted Transfer”):
Further, notwithstanding anything to the contrary, the following shall not be deemed an assignment, sublease, or other Transfer and shall not require Landlord’s consent or notice to Landlord: a sale or other transfer of corporate shares of capital stock (or any member interest if Tenant is a limited liability company) in Tenant in connection with a bona fide financing for the benefit of Tenant, or a sale of any stock on a nationally-recognized stock exchange.
Further, Tenant may permit up to fifteen percent (15%) of the rentable square footage of the Premises, in the aggregate, to be used for Office Sharing (as hereinafter defined), without the same constituting a Transfer. The term “Office Sharing” shall mean the use of portions of the Premises (including use of the Tenant’s receptionist and conference rooms), without separate demising of walls by Tenant’s consultants, strategic partners, clients, advisors, other professionals, or other third parties who have an ongoing professional or business relationship with Tenant (the “Shared Users”). Tenant agrees to notify Landlord, promptly upon Landlord’s written request therefor, as to the approximate amount and the identity of the Shared Users. Each such Shared User shall be deemed an invitee of Tenant, and in no event shall the use or occupancy of any portion of the Premises by any Shared User be deemed to create a landlord/tenant relationship between Landlord and any Shared User or be deemed to vest in any Shared User any right or interest in this Lease, and Shared Users shall have no recourse directly against Landlord for any failure by Landlord
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to perform any of its obligations under this Lease. In no event shall Landlord be required to send any notices to any Shared User.
ARTICLE 14: RELEASE, WAIVER AND INDEMNIFICATION.
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injunction or decree. Under no circumstances shall either party be liable for, and each party hereby waives, consequential, punitive, special, or exemplary damages, or any damages similar thereto, excluding (i) any such damages that arise out of a violation by Tenant of its obligations pursuant to Article 18 hereof and (ii) such consequential damages specified in Article 17 hereof.
ARTICLE 15: SUBORDINATION; ATTORNMENT; ESTOPPEL CERTIFICATE.
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identifying all defaults with particularity; and (vi) any other factual matter reasonably requested by Landlord. Any purchaser or Mortgagee of any interest in the Building shall be entitled to rely on said statement. In the event that Tenant fails to provide Landlord with such estoppel certificate within such ten (10) business day period, Landlord shall provide Tenant with a second notice (the “Second Estoppel Notice”) requesting such estoppel certificate. For each day that Tenant fails to remit the estoppel certificate, commencing on the fifth (5th) day after Tenant’s receipt of the Second Estoppel Notice, Tenant shall pay a late fee of One Hundred Dollars ($100) per day until the day on which Tenant remits the estoppel certificate as set forth herein.
ARTICLE 16: LANDLORD’S RIGHT OF ACCESS. Landlord and its contractors and representatives shall have the right to enter the Premises at all reasonable times to perform janitorial and cleaning services and, after at least one
ARTICLE 17: HOLDING OVER. If Tenant retains possession of the Premises or any part thereof after the termination of the Term or any extension thereof, by lapse of time or otherwise, Tenant, unless Landlord otherwise elects, shall become a tenant at sufferance and shall pay Landlord monthly Rent at one hundred fifty percent (150%) of the rate of Base Rent in effect for the month immediately preceding said holding over, computed on a per month basis, for each month or part thereof (without reduction for any such partial month) that Tenant thus remains in possession. The provisions of this Article do not exclude Landlord’s right of reentry or any other right hereunder. Tenant shall be liable for any damages suffered by Landlord due to Tenant’s unauthorized holding over for more than thirty (30) days following a written notice to vacate, including, without limitation, abatement, late fees, interest or penalties charged by the next tenant resulting from Landlord’s inability to timely deliver all or portion of the Premises.
ARTICLE 18: HAZARDOUS MATERIALS. The term “Hazardous Substances”, as used in this Lease shall mean pollutants, contaminants, toxic or hazardous wastes, or any other substances, the use and/or the removal of which is required or the use of which is restricted, prohibited or penalized by any “Environmental Law”, which term shall mean any federal, state or local law, ordinance or other statute of a governmental or quasi-governmental authority relating to pollution or protection of the environment. Tenant hereby agrees that no activity will be conducted on the Premises that will produce any Hazardous Substance, except for such activities that are part of the ordinary course of Tenant’s business activities (the “Permitted Activities”) provided said Permitted Activities are conducted in accordance with all Environmental Laws and have been approved in advance in writing by Landlord (Landlord hereby consents common operational tasks such as changing toners and replacing batteries); Tenant shall be responsible for obtaining any required permits and paying any fees and providing any testing required by any governmental agency in connection with such Permitted Activities. Should it be determined, in Landlord’s reasonable opinion, that said Permitted Materials are being improperly stored, used, or disposed of, then Tenant shall immediately take such corrective action as requested by Landlord. Should Tenant fail to take such corrective action within twenty-four (24)
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hours, Landlord shall have the right to perform such work and Tenant shall promptly reimburse Landlord for any and all costs associated with said work. Tenant agrees to indemnify, defend and hold harmless Landlord, its lenders, any managing agents and leasing agents of the Premises, and their respective agents, partners, officers, directors and employees, from all claims, demands, actions, liabilities, costs, expenses, damages (actual or punitive) and obligations of any nature arising from or as a result of any Hazardous Substances being brought into the Building or Premises by Tenant or its agents, employees, or contractors. Landlord will indemnify, defend and hold Tenant harmless from and against any claim, cost, damage, expense (including without limitation reasonable attorneys' fees and costs of defense but excluding indirect or consequential damages), loss, liability, or judgment now or hereafter arising as a result of any claim associated with any required clean-up or other actions arising from the existence, release or threatened release of Hazardous Substances on, in or under the Premises, to the extent not introduced or aggravated by the act or neglect of Tenant or Tenant’s agents, employees or contractors, that is either (i) released by Landlord or its agents, employees or contractors, or (ii) accruing prior to the Commencement Date. The foregoing indemnifications and the responsibilities of Tenant and Landlord shall survive the termination or expiration of this Lease.
ARTICLE 19: RELOCATION. Landlord may, at any time, but on only one (1) occasion, relocate Tenant to another area of the Building (herein referred to as “new premises”) providing the new premises shall be substantially similar in size, location (must be on the same floor or higher), utility, window line, quality, appearance, and use for Tenant's purposes. If Tenant is already occupying the Premises at the time Landlord exercises the rights granted by this Article, Landlord, at its expense, shall remove, relocate, and reinstall Tenant’s equipment, furniture, and fixtures, including all wiring and cabling in the new premises and redecorate the new premises so that they will be substantially the same as the former Premises, all at Landlord’s sole cost and expense. In addition, Landlord shall pay all reasonable out-of-pocket costs directly related to such relocation, including, without limitation, any other costs necessary to improve the new premises to the same level of finish as existed in the original Premises, wiring/cabling costs, moving costs, and the cost of stationery and similar items rendered useless by such relocation. Landlord shall give Tenant at least ninety (90) days’ notice before making such change. Tenant shall cooperate with Landlord in all reasonable ways to facilitate the move. Tenant may elect to have the physical move occur during weekend or evening hours in order to minimize any effect on Tenant’s business. Tenant shall not be required to physically move until such time as the new premises is ready for business to be conducted therefrom. If the new premises is larger than the original Premises, then (i) Tenant’s Share shall be adjusted proportionately, and (ii) Base Rent shall be reduced so that, when combined with Tenant’s Share of Operating Expenses and Taxes, the total amount due from Tenant in accordance with this Lease for Base Rent, Operating Expenses, and Taxes does not exceed the amounts that would have been payable for the original Premises. If the new premises are smaller than the original Premises, then Base Rent and Tenant’s Share shall be reduced proportionately.
ARTICLE 20: DEFAULT. The occurrence of any one or more of the following matters constitutes a default (“Default”) by Tenant under this Lease:
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Any notice periods provided for under this Article shall run concurrently with any statutory notice periods, and any notice given hereunder may be given simultaneously with or incorporated into any such statutory notice.
ARTICLE 21: REMEDIES.
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including reasonable attorneys’ fees and court costs, which Landlord shall have sustained by reason of the Default of any of the covenants of this Lease other than for the payment of Rent.
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to Tenant, and all sums expended or expenses incurred by Landlord in performing such duty shall be deemed to be Rent under this Lease and shall be due and payable to Landlord upon demand by Landlord.
ARTICLE 22: MISCELLANEOUS.
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be in writing and shall be deemed to have been fully given, made or sent when made by personal service or by nationally-recognized overnight courier, and properly addressed to the addresses set forth in Section 1 above. The address to which any Notice should be given, made or sent to either party may be changed by written notice given by such party as above provided.
(ii) are not knowingly engaged in, and shall not engage in, any dealings or transaction or be otherwise associated with such persons or entities described in (i) above; and (iii) are not, and shall not become, a person or entity whose activities are regulated by the International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001 or the regulations or orders thereunder.
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the Building; and/or
Where the Landlord or Tenant discloses any shared data to a third party, they will ensure that that third party is placed under a similar obligation to that set out in the above clause to keep any shared data confidential and to use it only for the purposes listed in that clause.
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fluorescent tubes;
of the following:
Tenant shall arrange and require its employees working in the Premises to participate in annual training regarding recycling and shall participate in Landlord-sponsored training programs regarding recycling. Landlord reserves the right to refuse to collect or accept from Tenant any refuse or rubbish which is not separated and sorted as required and to require Tenant to arrange for such collection, at Tenant’s sole cost and expense, using a contractor reasonably satisfactory to Landlord.
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refrigerators;
the Building;
Association;
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Nothing in this Section 22 shall require Tenant to perform any alterations or tenant improvement work or purchase any furniture, equipment, or other items.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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[SIGNATURE PAGE]
IN WITNESS WHEREOF, this Lease is effective on the date of the full execution hereof, and the parties hereto have identified this Lease as of the day and year set forth on the first page of this Lease.
LANDLORD:
SPUS8 2100 POWELL, LP,
a Delaware limited partnership
By: | /s/ Brian Ma |
|
Name: | Brian Ma | |
Title: | Authorized Signatory | |
| ||
Date: | 3/16/2022 |
By: | /s/ Diann Hsueh |
|
Name: | Diann Hsueh | |
Title: | Vice President | |
| ||
Date: | 3/16/2022 |
TENANT:
DYNAVAX TECHNOLOGIES CORPORATION,
a Delaware corporation
By: | /s/ Kelly MacDonald |
|
Name: | Kelly MacDonald | |
Title: | Chief Financial Officer | |
Date: | 3/15/2022 |
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RIDER TO LEASE
Landlord and Tenant hereby agree that the following provisions are hereby added to the Lease:
A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises.
In accordance with the foregoing, Landlord and Tenant agree that if Tenant obtains a CASp inspection of the Premises, then Tenant shall pay (i) the fee for such inspection, and (ii) except as may be otherwise expressly provided in this Lease, the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the Premises.
[Remainder of Page Intentionally Left Blank]
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EXHIBIT A
(Floor Plan of Premises)
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EXHIBIT B
(Work Letter)
None. Tenant accepts the Premises in its present “as-is” and “where-is” condition.
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EXHIBIT C
(Confirmation of Lease Terms and Dates)
Re: Office Lease (the “Lease”) dated January 25, 2022 between SPUS8 2100 POWELL, LP, a Delaware limited partnership (“Landlord“), and DYNAVAX TECHNOLOGIES CORPORATION, a Delaware corporation (“Tenant“) for the premises located at 2100 Powell Street, Emeryville, California 94608 (“Premises”).
The undersigned, as Tenant, hereby confirms as of this ______ day of _______, 20____, the following:
Dates |
| Monthly Base Rent / RSF |
| Monthly Installment of Base Rent |
__________—__________ |
| $4.65 |
| $ 0.00* |
__________—__________ |
| $4.65 |
| $37,446.45 |
__________—__________ |
| $4.79 |
| $38,573.87 |
__________—__________ |
| $4.93 |
| $39,701.29 |
__________—__________ |
| $5.08 |
| $40,909.24 |
*See Lease for additional details regarding the terms of the Base Rent abatement.
TENANT: | |
|
|
Dynavax Technologies Corporation, a Delaware Corporation | |
|
|
|
|
By: |
|
Name: |
|
Title: |
|
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EXHIBIT D
(Rules and Regulations)
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reasonable and nondiscriminatory rules and regulations shall be given in such manner as Landlord may reasonably elect.
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above from 8:00 a.m. to 6:00 p.m., Monday through Friday, but it reserves the right to do so or not to do so at any time at its sole discretion. In case of invasions, mob, riot, public excitement, or other commotion, Landlord reserves the right to prevent access to the Building during the continuance of the same by closing the doors or otherwise, for the safety of the tenants or the protection of the Building and the property therein. Landlord shall in no case be liable for damages for any error or other action taken with regard to the admission to or exclusion from the Building of any person.
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(Parking Rules)
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EXHIBIT E
[Reserved]
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