Agreement for Modification of Lease and Voluntary Surrender of Premises, dated as of September 20, 2023, by and between ARE-San Francisco No. 63, LLC and Atreca, Inc

Exhibit 10.1

AGREEMENT FOR MODIFICATION OF LEASE

AND VOLUNTARY SURRENDER OF PREMISES

This Agreement for Modification of Lease and Voluntary Surrender of Premises (this “Agreement”) is made and entered into as of September 20, 2023 (the “Effective Date”), by and between ARE-SAN FRANCISCO NO. 63, LLC, a Delaware limited liability company (“Landlord”), and ATRECA, INC., a Delaware corporation (“Tenant”), with reference to the following:

RECITALS

A.            Pursuant to that certain Lease Agreement dated as of July 17, 2019 (the “Original Lease”), as amended by that certain letter agreement dated as of August 24, 2020 (as amended, the “Lease”), Tenant leases from Landlord certain premises containing approximately 99,557 rentable square feet (the “Premises”) in that certain building located at 835 Industrial Road, San Carlos, California, as more particularly described in the Lease. Capitalized terms used herein without definition shall have the meanings defined for such terms in the Lease.

B.            The Term of the Lease is scheduled to expire on April 30, 2033 (the “Scheduled Expiration Date”).

C.            Tenant and Landlord desire, subject to the terms and conditions set forth below, to accelerate the expiration date of the Term of the Lease.

NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated herein by this reference, the mutual promises and conditions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree as follows:

1.            Modification of Lease. Landlord and Tenant hereby agree as follows:

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2.            Option to Early Vacate. Landlord and Tenant hereby agree, subject to Tenant’s satisfaction (or Landlord’s waiver) of all of the terms and conditions set forth in this Agreement and subject to Tenant’s Re-Occupancy Right (defined below), that (a) Tenant shall, on the Early Vacate Date, voluntarily quit and vacate the Premises in the condition required by the Lease; provided, however, Tenant shall not have any removal or restoration obligations with respect to any Installations, cabling/wiring or signage, (b) commencing on the Early Vacate Date, and so long as Tenant does not elect to exercise its Re-Occupancy Right, Tenant shall have no right to enter, use, sublease or occupy the Premises, (c) commencing on the Early Vacate Date and continuing through and until the Termination Date, Tenant agrees to cooperate with Landlord, which cooperation shall include, without limitation, Tenant’s provision to Landlord and Landlord’s employees, agents, contractors and invitees (each, a “Landlord Party”), full access to the Premises (“Landlord’s Access Right”), without cost, expense or liability to Tenant, (d) Tenant hereby waives any and all claims against Landlord and any other Landlord Party in connection with the exercise of Landlord’s Access Right (including, without limitation, any claim for rent abatement) except to the extent caused by Landlord’s or any Landlord Party’s willful misconduct or negligence, and (e) all other terms and conditions contained within the Lease regarding surrender and vacating the Premises shall remain in full force and effect.

3.            Landlord Alteration Work. From and after the Early Vacate Date and continuing through and until the Termination Date, Landlord shall have the option to undertake construction and/or alterations with respect to the Premises (the “Landlord Alteration Work”), and Landlord’s Access Right shall include the right to access the Premises to perform such Landlord Alteration Work (“Landlord’s Alteration Right”). Notwithstanding anything to the contrary contained in the Lease (as amended hereby), any Landlord Alteration Work shall be without cost, expense or liability to Tenant (except to the extent such cost, expense or liability is caused by Tenant or any Tenant Parties). Notwithstanding the foregoing, if Tenant has exercised its Re-Occupancy Right with respect to the Premises, Landlord’s right to continue to access the Premises pursuant to Landlord’s Access Right and perform the Landlord Alteration Work shall terminate effective as of the Re-Occupancy Date.

4.            Lease Modification Payment. In consideration of Landlord’s agreement to enter into this Agreement, Tenant shall pay to Landlord an amount equal to $5,115,038.40 (the “Lease Modification Payment”). The Lease Modification Payment shall be paid as follows:

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Tenant shall cooperate in all respects with Landlord to enable Landlord to draw the full amount of the Letter of Credit, including, without limitation, providing written authorization to the bank holding the Letter of Credit to process Landlord’s draw request. Notwithstanding anything to the contrary contained in this Agreement, if Tenant does not surrender the Premises on or before the Termination Date in strict accordance with the terms of this Agreement, the Term of the Lease shall nonetheless terminate on the Termination Date and the holdover provisions of the Lease shall apply. Notwithstanding anything to the contrary contained in the Lease, Tenant shall have no further right to extend the Term of the Lease, and the Term of the Lease shall terminate on the Termination Date.

5.            Base Rent and Operating Expenses. Subject to Section 1(e) above, Tenant shall be responsible for the payment of all Base Rent, Operating Expenses and any other obligations due under the Lease through the Termination Date. Tenant shall not be required to pay Base Rent, Operating Expenses or any other recurring monthly financial obligations arising under the Lease for any period following the Termination Date so long as Tenant surrenders the Premises in strict compliance with this Agreement and the Lease (as modified herein), and Tenant is not in breach hereof or under the Lease.

6.            Termination and Surrender. Tenant shall voluntarily surrender the Premises as provided in this Agreement. Tenant agrees to cooperate reasonably with Landlord in all matters, as applicable, relating to surrendering the Premises in accordance with the surrender requirements set forth in this Agreement and the Lease and in the condition required pursuant to the Lease as modified herein. After the Termination Date, Tenant shall have no further rights of any kind with respect to the Premises. Notwithstanding the foregoing, as provided in Section 8 hereof and subject to the terms hereof, those provisions of the Lease which, by their terms, survive the termination of the Lease shall survive the surrender of the Premises and termination of the Lease provided for herein.

7.            Tenant’s Re-Occupancy Right. If Tenant has elected to vacate the Premises and vacated the Premises in accordance with this Agreement, then, any time following the Early Vacate Date and prior to the Termination Date, Tenant may, upon 15 days’ prior written notice to Landlord (such notice, the “Re-Occupancy Notice”), elect to re-occupy all or any portion of the Premises, with such re-occupancy commencing on the date set forth in the Re-Occupancy Notice (the “Re-Occupancy Date”) and continuing through and until the Termination Date (such option, the “Re-Occupancy Right”). In the event that Tenant elects to exercise its Re-Occupancy Right pursuant to this Section 7, Tenant acknowledges and agrees that the following shall apply and shall be conditions thereto:

a.            Tenant shall accept the Premises in its then-current “AS IS” condition on the Re-Occupancy Date, which Tenant acknowledges may be a condition different than the condition of the Premises that existed as of the Early Vacate Date;

b.            Concurrently with Tenant’s delivery of the Re-Occupancy Notice and notwithstanding Tenant’s payment of the Lease Modification Payment to Landlord and Landlord’s application of the Security Deposit as provided in Section 4(a) above, Tenant shall deliver funds to Landlord equal to the amount of Base Rent and Operating Expenses and all other amounts that would have been payable under the Lease for the Premises for the period commencing on December 1, 2023 through the Re-Occupancy Date but for the abatement provided for in Section 1(e) above;

c.            Tenant shall be deemed to have waived any and all claims against Landlord and any other Landlord Party in connection with any exercise of Landlord’s Access Right, Landlord’s Alteration Right and any construction or alterations made in connection therewith (including, without limitation, any claim for rent abatement). Following Tenant’s exercise of its Re-Occupancy Right, Landlord’s Access Right under this Agreement shall terminate as of the Re-Occupancy Date; and

d.            Tenant’s re-occupancy of the Premises shall be subject to all of the terms and conditions of the Lease (as amended hereby), including, without limitation, the Accelerated Termination Right and Tenant’s obligation to pay Base Rent, Operating Expenses and any other obligations of Tenant under the Lease with respect to the Premises through the Outside Termination Date.

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8.            No Further Obligations. Subject to the provisions of Section 2 above, Landlord and Tenant each agree that the other is excused following the Termination Date from any further obligations under the Lease with respect to the Premises, excepting only such obligations under the Lease which are, by their terms, intended to survive termination of the Lease, except that Landlord and Tenant acknowledge and agree that there shall be no further reconciliation of Operating Expenses under the Lease. In addition, nothing herein shall be deemed to limit or terminate any common law or statutory rights Landlord may have with respect to Tenant in connection with any hazardous materials or for violations of any governmental requirements or requirements of applicable law. Nothing herein shall excuse Tenant from its obligations under the Lease, as modified by this Agreement, prior to the Termination Date.

9.            Personal Property. Landlord and Tenant hereby agree that, as consideration for entering into this Agreement, Tenant shall transfer certain furniture, fixtures and equipment to Landlord pursuant to a Bill of Sale and Assignment in the form attached hereto as Exhibit A. Subject to the immediately prior sentence, any personal property of Tenant remaining in the Premises after the Termination Date is hereby agreed to be abandoned by Tenant and may be disposed of by Landlord, in Landlord’s sole discretion, without obligation or liability of any kind to Tenant.

10.            Tenant’s Notice Address. Any notice given by Landlord to Tenant following the Termination Date may be delivered by (i) reputable overnight courier, or (ii) hand delivery with signature confirming receipt to the following address:

Atreca, Inc.
c/o Cooley LLP
11951 Freedom Drive, Suite 1400
Reston, Virginia 20190
Attention: John G. Lavoie, Esq.

As a courtesy only, Landlord shall endeavor to email notices to the email addresses below, but Landlord’s failure to email such notices shall in no event constitute a default by Landlord or a failure by Landlord to deliver the applicable notice to Tenant:

John Lavoie - ***@***

Courtney Phillips - ***@***

11.          Acknowledgment. Tenant acknowledges that it has read the provisions of this Agreement, understands them, and is bound by them. Time is of the essence in this Agreement.

12.          No Assignment. Tenant represents and warrants that Tenant has not assigned, mortgaged, subleased, pledged, encumbered or otherwise transferred any interest in the Lease and that Tenant holds the interest in the Premises as set forth in the Lease as of the date of this Agreement.

13.          No Modification. This Agreement may not be modified or terminated except in writing signed by all parties.

14.          Successors and Assigns. The covenants and agreements herein contained shall inure to the benefit and be binding upon the parties and their respective successors and assigns.

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15.            Attorneys’ Fees. In the event of a dispute between the parties, the prevailing party shall be entitled to have its reasonable attorneys’ fees and costs paid by the other party. Each party shall be responsible for its own costs and legal fees in connection with the negotiation, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

16.            Reimbursement of Landlord’s Fees. Tenant shall reimburse Landlord for the reasonable out-of-pocket costs incurred by Landlord in connection with preparation and negotiation of this Agreement within 30 days after Tenant’s receipt of an invoice therefor from Landlord.

17.            Choice of Law. Construction and interpretation of this Agreement shall be governed by the internal laws of the state in which the Premises are located, excluding any principles of conflicts of laws.

18.            Opportunity for Consultation. Each party represents and warrants that such party is entering into this Agreement knowingly and voluntarily and that each party has, or has had the opportunity to, review any and all aspects of this Agreement with the legal, tax or other advisor or advisors of such party’s choice prior to executing this Agreement. Each of the parties has had the opportunity to negotiate the terms, conditions and language of this Agreement. The rule of construction that ambiguities are resolved against the drafting party shall not be applied in interpreting this Agreement.

19.            OFAC. Tenant and all beneficial owners of Tenant are currently (a) in compliance with and shall at all times during the Term of the Lease remain in compliance with the regulations of the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of Treasury and any statute, executive order, or regulation relating thereto (collectively, the “OFAC Rules”), (b) not listed on, and shall not during the term of the Lease be listed on, the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List or the Sectoral Sanctions Identifications List, which are all maintained by OFAC and/or on any other similar list maintained by OFAC or other governmental authority pursuant to any authorizing statute, executive order, or regulation, and (c) not a person or entity with whom a U.S. person is prohibited from conducting business under the OFAC Rules.

20.            Counterparts. This Agreement may be executed in 2 or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature process complying with the U.S. federal ESIGN Act of 2000) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. Electronic signatures shall be deemed original signatures for purposes of this Agreement and all matters related thereto, with such electronic signatures having the same legal effect as original signatures.

[Signatures are on the next page]

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

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Exhibit A

Bill of Sale and Assignment

THIS BILL OF SALE AND ASSIGNMENT (“Bill of Sale”) is made as of September 20, 2023, by ATRECA, INC., a Delaware corporation (“Tenant”), to ARE-SAN FRANCISCO NO. 63, LLC, a Delaware limited liability company (“Landlord”).

RECITALS

A.            Landlord and Tenant are now parties to that certain Lease Agreement dated as of July 17, 2019, as affected by that certain letter agreement dated as of August 24, 2020 (as amended, the “Lease”). Pursuant to the Lease, Tenant leases approximately 99,557 rentable square feet (the “Premises”) in that certain building located at 835 Industrial Road, San Carlos, California, as more particularly described in the Lease. Capitalized terms used herein without definition shall have the meanings defined for such terms in the Lease.

B.            Landlord and Tenant have entered into that certain Agreement for Modification of Lease and Voluntary Surrender of Premises on or about the date hereof (the “Modification Agreement”). The Modification Agreement requires Tenant to convey to Landlord all of Tenant’s right, title and interest in, to and under the Personal Property (as defined below) located in the Premises in connection with Tenant’s surrender of the Premises.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Tenant hereby agrees as follows:

IN WITNESS WHEREOF, this Bill of Sale was made and executed as of the date first above written.

Schedule 1

Personal Property