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EXHIBIT 10.8
FOURTH AND BATTERY
OFFICE LEASE
THIS LEASE, made the 28th day of April, 2003 (the "Execution
Date"),
by and between SELIG REAL ESTATE HOLDINGS EIGHT, a Washington
limited liability
company, whose address is 1000 Second Avenue, Suite 1800, Seattle,
Washington,
98104-1046, hereinafter referred to as "Lessor" and GENECRAFT,
INC., a Delaware
corporation, whose address is 601 Union Street, Suite 4200,
Seattle, Washington
98101, hereinafter referred to as "Lessee".
1. DESCRIPTION. Lessor in consideration of the agreements contained
in
this lease, does hereby lease to Lessee, upon the terms and
conditions
hereinafter set forth, that certain space consisting of the agreed
upon square
footage* of 24,090 (hereinafter referred to as "Premises"), 8,198
square feet of
which is situated on the Tenth (10th) floor level and 15,892 square
feet of
which is situated on the Twelfth (12th) floor level of the Fourth
& Battery
Building, 2401 Fourth Avenue, City of Seattle, State of Washington
98121 (the
"Building"), the legal description of which is:
Lots 3, 4, 5, 6, 7 and 8, Block 35, Bell and Denny's Second
Addition
to City of Seattle.
Suites 1050 and 1200
* Rentable
square footage stated above is an estimate of the rentable
square
footage and is deemed to be the correct square footage of the
Premises and
is
based on the Building Owners and Managers Association Standard
Method
for
Measuring Area in Office Buildings (ANSI/BOMA Z65.1-1996).
2. TERM. Lessor represents that it has entered into and given
Lessee a
true, correct and complete copy of a lease termination agreement
with LifeSpan
BioSciences, Inc., a Washington corporation ("LifeSpan"), the
current tenant in
the Premises, which provides that LifeSpan's lease of the Premises
(the "Current
Lease") shall terminate and LifeSpan shall vacate the Premises as
follows: (i)
LifeSpan will vacate and the Current Lease shall terminate as to
the portion of
the tenth (10th) floor included in the Premises on May 15, 2003,
(ii) LifeSpan
will vacate and the Current Lease shall terminate as to the south
half of the
twelfth (12th) floor of the Premises by June 1, 2003 and (iii)
LifeSpan will
vacate and the Current Lease shall terminate as to the north half
of the twelfth
(12th) floor of the Premises by August 15, 2003 (each of May 15,
2003, June 1,
2003 and August 15, 2003 being a "Delivery Date" as to the
applicable portion of
the Premises). Lessor shall deliver possession of the applicable
portion of the
Premises to Lessee on each Delivery Date in good, vacant, broom
clean condition,
with all building systems in good working order and in compliance
with all laws,
with all systems and equipment operated therein properly
decontaminated and
decommissioned and with the roof water tight and otherwise in the
condition as
of the date of this Lease. Tenant's acceptance of the
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Premises shall not be deemed a waiver of Tenant's right to have
defects in the
Premises repaired at no cost to Tenant. Tenant shall give notice to
Landlord
whenever any such defect becomes reasonably apparent, and Landlord
shall repair
such defect as soon as practicable. Landlord shall use commercially
reasonable
efforts to enforce the provisions of such lease termination
agreement against
LifeSpan and to deliver the Premises to Lessee on the dates and in
the condition
set forth above, including, without limitation, commencing
appropriate unlawful
detainer and/or eviction proceedings against LifeSpan.
The term of this lease shall be for a period of eighty-four
(84)
months, commencing on October 1, 2003 (the "Commencement Date");
provided,
however, that the Commencement Date shall be delayed by one (1)
calendar day for
each calendar day that (i) delivery of the applicable portion of
the Premises in
the required condition is delayed beyond the applicable Delivery
Date as set
forth above and (ii) substantial completion of the Tenant
Improvements is
delayed due to Lessor's delay, force majeure, the presence of
Hazardous
Materials in the Building or any work required to bring the
Building into
compliance with laws except for compliance with laws exclusive to
Lessee's
Tenant Improvements other than general laboratory improvements.
Notwithstanding
anything to the contrary herein, if the Commencement Date is
delayed for any of
the foregoing reasons for more than thirty (30) calendar days, then
in addition
to Lessee's other rights or remedies, Lessee may terminate this
Lease by written
notice to Lessor, whereupon any monies previously paid by Lessee to
Lessor shall
be reimbursed to Lessee, or, at Lessee's election, the date Lessee
is otherwise
obliged to commence payment of rent shall be delayed by one
additional calendar
day for each calendar day that the Commencement Date is delayed
beyond such
date.
Upon each Delivery Date, Lessee shall have the right to occupy
the
applicable portion of the Premises for purposes of the construction
of the
initial Tenant Improvements or otherwise. Such occupancy shall be
subject to all
of the terms of this Lease except the obligation to pay Rent and
shall not
advance the Commencement Date.
In the event the Premises are not ready for occupancy on the date
set
forth above, whether occasioned by Lessor or Lessee, the lease term
shall be
extended in such a manner as to reflect the delay occasioned by the
failure of
the Premises to be ready for occupancy. In no event shall Lessor or
Lessee be
liable for any further damages.
3. RENT. Lessee covenants and agrees to pay Lessor rent each month
in
advance on the first day of each calendar month during the Lease
Term in the
amount of $63,270 per month. Rent for any fractional calendar
month, at the
beginning or end of the term, shall be the pro rated portion of the
rent
computed on an annual basis. Lessor and Lessee agree that Lessee
has designated
portions of the Premises identified on Exhibit A attached hereto
consisting in
the aggregate of 3,000 rentable square feet as "space pockets" (the
"Space
Pockets"). The Space Pockets may be occupied by Lessee without the
payment of
Rent for the purpose of constructing the Tenant Improvements and
thereafter for
the purpose of storing furniture, equipment and other personal
property;
however, in the event that Lessee's employees occupy all or any
portion of the
Space Pockets for the purpose of conducting Lessee's business
therein, then
Lessee shall
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commence payment of Rent for the portions of such Space Pockets so
occupied at
the rate of thirty-six dollars ($36.00) per square foot per
year.
Notwithstanding the foregoing, (i) on the first day of the
thirteenth (13th)
month of the Lease term, Lessee shall commence the payment of Rent
at the rate
of thirty-six dollars ($36.00) per square foot per year as to
fifteen hundred
rentable square feet of the Space Pockets, less any portion of the
Space Pockets
that Lessee has previously occupied and commenced the payment of
Rent as of such
date and (ii) on the first day of the twenty-fifth (25th) month of
the Lease
term, Lessee shall commence the payment of Rent at the rate of
thirty-six
dollars ($36.00) per square foot per year as to the remaining fifty
percent
(50%) of the rentable square footage of the Space Pockets, and
thereafter there
shall be no further Space Pockets in the Premises.
4. CONSIDERATION. Lessee has this date paid to Lessor the sum
of
$126,540 (as prepayment for the first and second month's rent),
receipt of which
is hereby acknowledged. So long as Lessee is not in default of its
obligations
under the terms and conditions of this lease as of the first day of
each of the
first and second months of the Lease Term, an amount equal to
$63,270 (fifty
percent of such sum) shall be credited to the first and second
month's rental
due under this lease.
5. USES. Lessee agrees that Lessee will use and occupy said
Premises
for general offices, laboratory, research and development uses and
a rodent
research laboratory and related purposes only and for no other
purposes, without
Lessor's prior written consent (the "Permitted Use").
6. RULES AND REGULATIONS. Lessee and their agents, employees,
servants
or those claiming under Lessee will at all times observe, perform
and abide by
all of the Rules and Regulations printed on this instrument, or
which may be
hereafter promulgated by Lessor, all of which it is covenanted and
agreed by the
parties hereto shall be and are hereby made a part of this
lease.
Notwithstanding anything to the contrary herein, Lessee shall not
be required to
comply with any new rule or regulation unless the same applies
non-discriminatorily to all occupants of the Building, does not
unreasonably
interfere with Lessee's use of the Premises or Lessee's parking
rights and does
not materially increase the obligations or decrease the rights of
Lessee under
this Lease.
7. CARE AND SURRENDER OF PREMISES. Lessee shall take good care of
the
Premises and shall promptly make all necessary repairs except those
required
herein to be made by Lessor. At the expiration or sooner
termination of this
lease, Lessee, without notice, will immediately and peacefully quit
and
surrender the Premises in good order, condition and repair (damage
by reasonable
wear, the elements, fire, casualties, condemnation, Hazardous
Materials (other
than those released or emitted by Lessee), and alterations or other
interior
improvements which it is permitted to surrender at the termination
of the Lease,
excepted). Lessee shall be responsible for removal of all personal
property from
the Premises, (excepting fixtures being that which is attached to
the Premises,
and property of the Lessor) including, but not limited to, the
removal of
Lessee's communication cabling, telephone equipment and signage.
Lessee shall be
responsible for repairing any damage to the Premises caused by such
removal. If
Lessee fails to remove and restore the Premises at lease
expiration, then Lessor
shall have the right to remove
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said property and restore the Premises and Lessee shall be
responsible for all
costs associated therewith. Lessee shall also be responsible for
those costs
incurred by Lessor for removing debris Lessee may discard in the
process of
preparing to vacate the Premises and for a final cleaning of the
Premises,
including, but not limited to, the cleaning, or replacement of
carpets if damage
is not caused by reasonable wear, and removal and disposal of
Lessee's personal
property remaining in the Premises.
8. ALTERATIONS. Lessee shall not make any alterations or
improvements
in, or additions to said Premises ("Alterations") without first
obtaining the
written consent of Lessor, whose consent shall not be unreasonably
withheld;
provided however, that if Lessor has not granted or denied its
consent to any
such proposed Alterations within five (5) business days after its
receipt of
Lessee's written request for such approval, then Lessor shall be
deemed to have
approved such Alterations. All such alterations, additions and
improvements
shall be at the sole cost and expense of Lessee and shall become
the property of
Lessor and shall remain in and be surrendered with the Premises as
a part
thereof at the termination of this lease, without disturbance,
molestation or
injury. Notwithstanding anything to the contrary herein, (a)
Alterations and
Lessee's trade fixtures, furniture, equipment and other personal
property
installed in the Premises (except for any of the foregoing paid for
with the
proceeds of the Allowance) ("Lessee's Property") shall at all times
be and
remain Lessee's property, (b) except for Alterations which cannot
be removed
without structural injury to the Premises, at any time Lessee may
remove
Lessee's Property from the Premises, provided that Lessee repairs
all damage
caused by such removal, (c) Lessor shall have no lien or other
interest in any
item of Lessee's Property and (d) Lessor shall have no right to
require Lessee
to remove any alterations unless it notifies Lessee at the time it
consents (or
is deemed to have consented) to such alteration that it shall
require such
alteration to be removed.
9. RESTRICTIONS. Lessee will not use or permit to be used in
said
Premises anything that will increase the rate of insurance on said
building or
any part thereof (except for the Permitted Use), nor anything that
may be
dangerous to life or limb; nor in any manner deface or injure said
building or
any part thereof; nor overload any floor or part thereof; nor
permit any
objectionable noise or odor to escape or to be emitted from said
Premises, or do
anything or permit anything to be done upon said Premises in any
way tending to
create a nuisance or to disturb any other tenant or occupant of any
part of said
building. Lessee, at Lessee's expense, will comply with all health,
fire and
police regulations respecting said Premises. The Premises shall not
be used for
lodging or sleeping, and no animals or birds will be allowed in the
building
(except as permitted under the Permitted Use). Notwithstanding
anything to the
contrary herein, Lessee shall not be required to comply with or
cause the
Premises to comply with any laws, rules or regulations requiring
the
construction of alterations unless such compliance is necessitated
solely due to
Lessee's particular use of the Premises.
10. WEIGHT RESTRICTIONS. Safes, furniture or bulky articles may
be
moved in or out of said Premises only at such hours and in such
manner as will
least inconvenience other tenants, which hours and manner shall be
at the
discretion of Lessor. No safe or other article of over 2,000 pounds
shall be
moved into said Premises without the
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consent of Lessor, whose consent shall not be unreasonably
withheld, and Lessor
shall have the right to locate the position of any article of
weight in said
Premises if Lessor so desires.
11. SIGN RESTRICTION. No sign, picture, advertisement or notice
shall
be displayed, inscribed, painted or affixed to any of the glass or
woodwork of
the building without the prior approval of Lessor. Notwithstanding
the
foregoing, Lessor shall install, at Lessor's cost and expense,
appropriate
building standard signage identifying Lessee's name at all entry
level building
directories, and on the suite door(s) or entryway(s).
12. LOCKS. No additional locks shall be placed upon any doors of
the
Premises. Keys will be furnished to each door lock. At the
termination of the
lease, Lessee shall surrender all keys to the Premises whether paid
for or not.
13. KEY. Lessor, his janitor, engineer or other agents may retain
a
pass key to said Premises to enable him to examine the Premises
from time to
time with reference to any emergency or to the general maintenance
of said
Premises. Notwithstanding anything to the contrary herein, Lessor
and Lessor's
agents, except in the case of emergency, shall provide Lessee with
one (1)
business day notice prior to entry of the Premises. Any entry by
Lessor and
Lessor's agents shall not impair Lessee's operations more than
reasonably
necessary, and shall comply with Lessee's reasonable security
measures, all
applicable laws and regulations and all of Lessee's policies and
procedures,
including, without limitation, all posted notices and
instructions.
14. TELEPHONE SERVICE. If Lessee desires telephonic or any
other
electric connection, Lessor will direct the electricians as to
where and how the
wires are to be introduced, and without such directions no boring
or cutting for
wires in installation thereof will be permitted.
15. SERVICES. Lessor shall maintain Premises and the public and
common
areas of building, such as lobbies, stairs, corridor and restrooms,
in
reasonably good order and condition except for damage occasioned by
the act of
Lessee. Notwithstanding anything to the contrary herein, Lessor
shall perform
and construct, and Lessee shall have no responsibility to perform
or construct,
any repair, maintenance or improvements (a) necessitated by the
acts or
omissions of Lessor or any other occupant of the Building, or their
respective
agents, employees or contractors, (b) for which Lessor has a right
of
reimbursement from others, (c) to the structural portions of the
Premises, (d)
which could be treated as a "capital expenditure" under generally
accepted
accounting principles, (e) to the heating, ventilating, air
conditioning,
electrical, water, sewer, and plumbing systems serving the Premises
and the
Building; provided, however, that Lessee shall obtain a one (1)
year warranty on
any Tenant Improvements made to such systems, and (f) to any
portion of the
Building outside of the demising walls of the Premises.
Notwithstanding the
foregoing, Lessee shall pay for its share of the repairs described
in
subsections (d)-(f) to the extent such costs are properly included
in Operating
Services.
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Lessor shall furnish Premises with electricity for lighting and
operation of low power usage office machines, laboratory machines
up to a
maximum amount of 4.5 watts per square foot per year, heat, normal
office and
laboratory air-conditioning, and elevator services, during the
ordinary business
hours of the building. Air-conditioning units and electricity
therefor for
special air-conditioning requirements, such as for computer
centers, shall be at
Lessee's expense. Lessor shall also provide lighting replacement
for Lessor
furnished lighting, toilet room supplies, window washing with
reasonable
frequency, and customary janitor service. Lessor shall provide all
services,
which are normally provided in similar office buildings in the
general area in a
first class and a cost efficient manner. Lighting and HVAC shall be
provided
without additional charge between the hours of 7 a.m. to 7 p.m.,
Monday through
Friday and between 7 a.m. to 1 p.m., Saturdays throughout the year
except
Christmas Day, Thanksgiving, New Year's Day, Memorial Day,
Independence Day and
Labor Day. Any after hour services, which Lessee requires, will be
provided upon
request at Lessee's cost. There shall be no Lessor profit or mark
up on such
after-hours services, although Lessor may have a right to pass
through actual
electricity costs due to Lessee's excessive use of the electricity,
water or
HVAC.
Lessor shall not be liable to Lessee for any loss or damage caused
by
or resulting from any variation, interruption or any failure of
said services
due to any cause whatsoever. No temporary interruption or failure
of such
services incident to the making of repairs, alterations, or
improvements, or due
to accident or strike or conditions or events not under Lessor's
control shall
be deemed as an eviction of Lessee or relieve Lessee from any of
Lessee's
obligations hereunder. Notwithstanding anything to the contrary
herein, if the
Premises should become not reasonably suitable for Lessee's use as
a consequence
of cessation of utilities or other services, interference with
access to the
Premises, legal restrictions or the presence of any Hazardous
Material which
does not result from Lessee's release or emission of such Hazardous
Material,
and in any of the foregoing cases the interference with Lessee's
use of the
Premises persists for fifteen (15) calendar days, then Lessee shall
be entitled
to an equitable abatement of rent to the extent of the interference
with
Lessee's use of the Premises occasioned thereby. If the
interference persists
for more than ninety (90) calendar days, Lessee shall have the
right to
terminate this Lease; provided that Lessee has given Lessor at
least thirty (30)
calendar days prior written notice of such termination, which
notice may be
delivered within such ninety (90) day period.
In the event of any
lack of attention on the part of Lessor and any
dissatisfaction with the service of the building, or any
unreasonable annoyance
of any kind, Lessee is requested to make complaints at Lessor's
building office
and not to Lessor's employees or agents seen within the building.
Lessee is
further requested to remember that Lessor is as anxious as Lessee
that a high
grade service be maintained, and that the Premises be kept in a
state to enable
Lessee to transact business with the greatest possible ease and
comfort. The
rules and regulations are not made to unnecessarily restrict
Lessee, but to
enable Lessor to operate the building to the best advantage of both
parties
hereto. To this end Lessor shall have the right to waive from time
to time such
part or parts of these rules and regulations as in his judgment may
not be
necessary for the proper maintenance or operation of the building
or consistent
with good service, and may from time to time make such further
reasonable rules
and regulations as in his judgment
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may be needed for the safety, care and cleanliness of the Premises
and the
building and for the preservation of order therein.
16. SOLICITORS. Lessor will make an effort to keep solicitors out
of
the building, and Lessee will not oppose Lessor in his attempt to
accomplish
this end.
17. FLOOR PLAN. The floor plan and specifications for Lessee's
occupancy shall be attached hereto and marked Exhibit "A" which
shall be
approved by both Lessor and Lessee, both of whose approval shall
not be
unreasonably withheld.
18. ASSIGNMENT. Lessee will not assign this lease, or any
interest
hereunder without Lessor's prior written consent, which shall not
be
unreasonably withheld or delayed, and this lease, or any interest
hereunder,
shall not be assigned by operation of law without Lessor's prior
written
consent, which shall not be unreasonably withheld or delayed.
Lessee will not
sublet said Premises or any part thereof and will not permit the
use of said
Premises by others other than Lessee and the agents of Lessee
without first
obtaining the written consent of Lessor, whose consent shall not be
unreasonably
withheld. In the event such written consent shall be given, no
other or
subsequent assignment or subletting shall be made without the
previous written
consent of Lessor, whose consent shall not be unreasonably
withheld.
Notwithstanding anything to the contrary herein, Lessee may,
without Lessor's
prior written consent and without constituting an assignment or
sublease
hereunder, sublet the Premises or assign this Lease to (a) an
entity
controlling, controlled by or under common control with Lessee, (b)
a successor
entity related to Lessee by merger, consolidation, nonbankruptcy
reorganization,
or government action, or (c) a purchaser of substantially all of
Lessee's assets
located in the Premises. A sale or transfer of Lessee's capital
stock shall not
be deemed an assignment, subletting or any other transfer of this
Lease or the
Premises.
19. OPERATING SERVICES AND REAL ESTATE TAXES. The annual base
rental
rate per rentable square foot in Paragraph 3 includes Lessee's
proportionate
share of Operating Services and Real Estate Taxes for the first
twelve months of
the lease term, "Base Year Costs". Only actual increases from these
Base Year
Costs, if any, will be passed on to Lessee on a proportionate
basis.
DEFINITIONS
Base Year
For computing the Base Year Costs, the base year shall be the
calendar year
stated herein or if a specific calendar year is not stated herein
then the base
year shall be the calendar year in which the lease term commences.
The base year
shall be the calendar year 2004.
Comparison Year
The Comparison Year(s) shall be the calendar year(s) subsequent to
the base
year.
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Operating Services
"Operating Services" include, but are not limited to, the charges
incurred by
Lessor for building operation salaries, benefits, management fee
(not to exceed
5% of gross income for the building), insurance, electricity,
janitorial,
supplies, telephone, HVAC, repair and maintenance, window washing,
water and
sewer, security, landscaping, disposal, elevator, and any other
service or
supplies reasonably necessary to the use and operation of the
premises.
Operating Services shall also include the amortization cost of
capital
investment items and of the installation thereof, which are
primarily for the
purpose of safety, saving energy or reducing operating costs, or
which may be
required by governmental authority, (all such costs shall be
amortized over the
reasonable life of the capital investment item, with the reasonable
life and
amortization schedule being determined in accordance with generally
accepted
accounting principles). Notwithstanding anything to the contrary
contained
herein, Operating Services shall not include and Lessee shall in no
event have
any obligation to perform or to pay directly, or to reimburse
Lessor for, all or
any portion of the following repairs, maintenance, improvements,
replacements,
premiums, claims, losses, fees, charges, costs and expenses
(collectively,
"costs"):
(i) real estate taxes
(ii) legal fees, auditing fees, brokerage commissions,
advertising
costs, or other related expenses incurred by Lessor in an effort to
generate
rental income;
(iii) repairs, alterations, additions, improvements, or
replacements
made to rectify or correct any defect in the original design,
materials or
workmanship of the building or common areas (but not including
repairs,
alterations, additions, improvements or replacements made as a
result of
ordinary wear and tear);
(iv) damage and repairs and other costs attributable to fire or
other
casualty or condemnation;
(v) damage and repairs necessitated by the negligence or
willful
misconduct of Lessor, Lessor's employees, contractors or
agents;
(vi) executive salaries and the salaries of other employees of
Lessor
to the extent that such services are not in connection with the
management,
operation, repair or maintenance of the Building;
(vii) Lessor's general overhead expenses not related to the
building;
(viii) legal fees, accountant's fees and other expenses incurred
in
connection with disputes with tenants or other occupants of the
building or
associated with the enforcement of the terms of any leases with
tenants or the
defense of Lessor's title to or interest in the building or any
part thereof,
unless the outcome is to the financial benefit of all tenants;
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(ix) costs (including permit, license and inspection fees) incurred
in
renovating or otherwise improving, decorating, painting or altering
(1) vacant
space (excluding common areas) in the building or (2) space for
tenants or other
occupants in the building and costs incurred in supplying any item
or service to
less than all of the tenants in the building;
(x) costs incurred due to a violation by Lessor or any other tenant
of
the building of the terms and conditions of a lease or other
agreement;
(xi) cost of any specific service provided to Lessee or other
occupants of the building for which Lessor is reimbursed (but not
including
Operating Services and Real Estate Tax increases above Base Year
Costs to the
extent reimbursed Lessor) or any other expense for which Lessor is
or will be
reimbursed by another source (i.e., expenses covered by insurance
or
warranties);
(xii) costs and expenses which could be capitalized under
generally
accepted accounting principles, wi