ASSIGNMENT, ASSUMPTION AND MODIFICATION OF LEASE DOCUMENTS
Exhibit 10.27
This Assignment and Assumption and Modification of Lease Documents (this “Agreement”) is made
as of September 26, 2007 (the “Effective Date”), by and among ALEXANDRIA REAL ESTATE EQUITIES,
INC., a Maryland corporation (“Landlord”), NURA, INC., a Delaware corporation (“Tenant”), and
OMEROS CORPORATION, a Washington corporation (“Assignee”).
RECITALS
A. Landlord and Tenant are parties to that certain Lease Agreement, dated as of April 6, 2000,
as previously amended by an Assignment and Assumption and Modification of Lease Document, dated as
of October 23,2003 (as amended from time to time, the “Suite 650 Lease”). Pursuant to the Suite
650 Lease, Tenant leases from Landlord certain premises located at and commonly known as 0000
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx, Xxxxx 000, as more particularly described in the Suite 650
Lease (“Suite 650 Premises”). All initially capitalized terms not otherwise defined in this
Agreement shall have the meanings set forth in the Suite 650 Lease unless the context clearly
indicates otherwise.
B. Landlord and Tenant are parties to that certain Lease Agreement, dated as of September 28,
2001, as amended by that certain Assignment and Assumption and Modification of Lease Document,
dated as of October 23, 2003, (as amended from time to time, the “Annex Lease”). Pursuant to the
Annex Lease, Tenant leases from Landlord certain premises located at and commonly known as 0000
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx, Annex Level B, as more particularly described in the Annex
Lease (“Annex Premises”).
C. Landlord and Tenant are parties to that certain Storage Lease, dated as of July 24, 2002,
as amended by that certain Assignment and Assumption and Modification of Lease Document, dated as
of October 23, 2003, (as amended from time to time, the “Storage Lease”), pursuant to which Tenant
leases from Landlord certain premises located at and commonly known as 0000 Xxxxxxxx Xxxxxx,
Xxxxxxx Xxxxxxxxxx, Xxxxx #000, as more particularly described in the Storage Lease.
D. Tenant and C-P Technologies, LP, a Washington limited partnership (“C-P”), are parties to
that certain Sublease, dated as of June 1, 2007 (as amended, the “C-P Sublease”). Pursuant to the
C-P Sublease, C-P subleases from Tenant a portion of the premises demised under the 650 Lease, as
more particularly described in the C-P Sublease. Landlord consented to the foregoing sublease to
C-P pursuant to that certain Consent to Sublease, dated as of August 7, 2007, by and among
Landlord, Tenant and C-P (the “C-P Consent”).
E. Tenant and NT Omics, Inc., a California corporation (“NT Omics”), are parties to that
certain Sublease, dated as of July 1, 2007 (as amended, the “NT Omics Sublease”). Pursuant to the
NT Omics Sublease, NT Omics subleases from Tenant a portion of the premises demised under the 650
Lease, as more particularly described in the NT Omics Sublease. Landlord consented to the
foregoing sublease to NT Omics pursuant to that certain Consent to Sublease, dated as of September
26, 2007, by and among Landlord, Tenant and NT Omics (the “NT Omics Consent”).
F. Subject to the terms and conditions set forth herein, (i) Tenant desires to assign to
Assignee, and Assignee desires to assume, all of Tenant’s right, title and interest in and to the
Suite 650 Lease, the Annex Lease, the Storage Lease, the C-P Sublease and the NT Omics Sublease
(collectively, the “Assigned Lease Documents”), (ii) Landlord desires to consent to the assignment
and assumption of the Assigned Lease Documents, release Tenant from all obligations under the
Assigned Lease Documents arising from and after the Effective Date, and (iii) Landlord and Assignee
desire to amend the Suite 650 Lease and the Annex Lease effective as of the Effective Date.
NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord, Tenant and Assignee hereby agree as
follows:
1. Assignment. Effective as of the Effective Date, Tenant assigns, sells transfers,
sets over and delivers to Assignee all of Tenant’s right, title and interest in and to the Assigned
Lease Documents.
2. Assumption. Effective as of the Effective Date, Assignee accepts the foregoing
assignment of the Assigned Lease Documents and assumes and agrees to perform and observe all of the
obligations, covenants, terms and conditions to be performed or observed by Tenant under the
Assigned Lease Documents arising from and after the Effective Date.
3. Consent to Assignment and Assumption. Effective as of the Effective Date, (i)
Landlord consents to the foregoing assignment and assumption of the Assigned Lease Documents, and
(ii) Landlord releases Tenant from and relieves Tenant of all of Tenant’s obligations under the
Assigned Lease Documents arising from and after the Effective Date.
4. Lease Modifications. Effective as of the Effective Date, Landlord and Assignee
agree that the Suite 650 Lease and Annex Lease are each amended as follows:
(a) Suite 650 Lease Modifications.
(i) Notice Address. Tenant’s Notice Address set forth in Page 1 of the Suite 650
Lease is amended to delete Tenant’s address for notices and to replace it with Assignee’s address
as follows:
“Omeros Corporation, 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx
00000.”
(ii) Expansion of Premises. Effective as of the Effective Date, the Premises under
the 650 Lease are hereby expanded to include 137 square feet on the 0xx xxxxx xx 0000 Xxxxxxxx
Xxxxxx, Xxxxxxx, XX 00000, as shown and described on Exhibit A attached hereto (the “Suite 640
Space”). From and after the Effective Date the Base Rent payable under the 650 Lease shall be
increased by $228.33 per month and such amount shall be increased annually by the Rent Adjustment
Percentage on the same date that Base Rent for the balance of the Premises is increased.
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No Additional Rent shall be payable for the Suite 640 Space and Tenant’s share of Net Building
Expenses shall not increase.
(iii) Termination of Expansion Right. Tenant shall have no further right to expand
the Premises. Accordingly, Section 39 (Right to Expand) of the Suite 650 Lease is hereby
deleted in its entirety.
(iv) Right to Extend Term. Subsection 40(a) of the Suite 650 Lease is hereby
deleted and replaced with the following:
“(a) Extension Right. Tenant shall have the right (the “First Extension
Right”) to extend the term of this Lease for a period of 3 years (the “First
Extension Term”), and, if the First Extension Right has been exercised,
Tenant shall have the additional right (the “Second Extension Right;” the
First Extension Right and the Second Extension Right may be collectively
referred to herein as the “Extension Rights” or individually as an “Extension
Right”) to extend the term for an additional period of 1 year (the “Second
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 12 months prior to the expiration of the Base Term
of the Lease or the expiration of the First Extension Term, as applicable.
Upon the commencement of an 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. In addition,
Landlord may impose a market rent for the parking rights provided hereunder.
Notwithstanding anything to the contrary contained in this Lease, Tenant’s
Extension Rights granted above may only be exercised if the term of that
certain Lease Agreement, dated as of September 28, 2001 (as amended and
assigned, the “Annex Lease”), to which Landlord and Tenant are now parties,
and which covers the portion of the Building known as Annex Level B, shall be
concurrently extended pursuant to Section 40 of the Annex Lease so
that both this Lease and the Annex Lease expire on the same date.
Accordingly, if the term of the Annex Lease is not extended pursuant to
Section 40 of the Annex Lease, Tenant shall have no right to extend
the term of this Lease pursuant to Section 40 of this Lease.”
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(b) Annex Lease Modification.
(i) Notice Address. Tenant’s notice address set forth on Page 1 of the Annex Lease is
amended to delete Tenant’s address for notices and to replace it with Assignee’s address as
follows:
“Omeros Corporation, 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx
00000.”
(ii) Right to Extend Term. A new Section 40 is added to the Annex Lease as
follows, which corresponds identically to Section 40 of the Suite 650 Lease:
“40. Right to Extend Term. Tenant shall have the right to extend the Term of
the Lease upon the following terms and conditions:
(a) Extension Right. Tenant shall have the right (the “First Extension
Right”) to extend the term of this Lease for a period of 3 years (the “First
Extension Term”), and, if the First Extension Right has been exercised,
Tenant shall have the additional right (the “Second Extension Right;” the
First Extension Right and the Second Extension Right may be collectively
referred to herein as the “Extension Rights” or individually as an “Extension
Right”) to extend the term for an additional period of 1 year (the “Second
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 12 months prior to the expiration of the Base Term
of the Lease or the expiration of the First Extension Term, as applicable.
Upon the commencement of an 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. In addition,
Landlord may impose a market rent for the parking rights provided hereunder.
Notwithstanding anything to the contrary contained in this Lease, Tenant’s
Extension Rights granted above may only be exercised if the term of that
certain Lease Agreement dated as of April 6, 2000 (as amended and assigned,
the “Suite 650 Lease”), to which Landlord and Tenant are now parties, and
which covers Suites 640 and 650 in the Building, shall be concurrently
extended pursuant to Section 40 of the Suite 650 Lease so that both
this Lease and the Suite 650 Lease expire on the same date. Accordingly, if
the term of the Suite 650 Lease is not extended pursuant to Section
40 of the Suite 650 Lease, Tenant shall have no right to extend the term
of this Lease pursuant to Section 40 of this Lease.
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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 the First Extension Term, as
applicable, 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 20 days prior to the expiration of the Base Term of this Lease or the
expiration of the First Extension Term, as applicable, elect arbitration as
described in Section 40(b) below. If Tenant does not elect such
arbitration, Tenant shall be deemed to have waived any right to extend the
term of the Lease and the Extension Rights shall terminate.
(b) Arbitration.
(i) Within 10 business 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 (as 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 business 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 Arbitrators 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
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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 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 Seattle 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 Seattle 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. The 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; provided, however, a
Permitted Assignee shall succeed to such Extension Rights.
(d) Exceptions. Notwithstanding anything set forth above to the contrary,
the Extension Rights shall not be in effect and Tenant may not exercise 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 Right 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; (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
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commencement of the Extension Term whether or not such Defaults are cured.”
5. Planned Construction; Quiet Enjoyment. Tenant and Assignee each acknowledges and
agrees that they have been notified of Landlord’s planned construction of a building at the
property adjacent to 0000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx (“Construction Activities”), and
that such Construction Activities may adversely impact the quiet enjoyment of the premises being
leased pursuant to the Assigned Lease Documents and Tenant and Assignee waive any claims they may
have against Landlord in connection therewith. Landlord shall, without any obligation to incur any
additional costs in connection with the Construction Activities, use commercially reasonable
efforts to minimize interference with the quiet enjoyment of the premises being leased pursuant to
the Assigned Lease Documents. Landlord acknowledges that Assignee maintains a laboratory animal
facility in the Annex Premises and a wet laboratory, including analytical instruments, in the Suite
650 Premises. Notwithstanding the waiver of claims set forth in this Section 5, if the
Construction Activities materially impair (i) the ability of Assignee to maintain the laboratory
animals and conduct research using such laboratory animals in the Annex Premises (such impairment
being evidenced by the deviation of animal behavior including in routine behavioral models, reduced
litter size or fertility, delayed or stunted growth or development, or animal cannibalism), and/or
(ii) the operation of the analytical instruments in the Suite 650 Premises (as evidenced by the
failure of the instrument system suitability testing or the irreproducibility of instrument
generated data) (collectively, “Material Impairment”), Assignee shall deliver written notice of
such Material Impairment to Landlord within 3 days of the occurrence of such Material Impairment,
along with evidence of the existence of such Material Impairment reasonably acceptable to Landlord,
and a description of the aspect of the Construction Activities that Assignee alleges is the cause
of such Material Impairment. If the parties are unable to agree about the existence or cause of a
Material Impairment, the matter shall be resolved by arbitration by a single arbitrator
(“Arbitrator”) with the qualifications and experience appropriate to resolve the matter and
appointed pursuant to and acting in accordance with the rules of the American Arbitration
Association. If a Material Impairment has occurred, Landlord shall have the right to attempt to
cure the aspect of the Construction Activities that the parties have determined is the cause of
such Material Impairment within 20 days after Landlord’s receipt of notice from Assignee regarding
such Material Impairment. If such aspect has not been cured within such 20 day period, Assignee
shall have the right, upon delivery of prior written notice to Landlord, to terminate (a) the Suite
650 Lease, if the Suite 650 Premises is affected by the Material Impairment, (b) the Annex Lease,
if the Annex Premises is affected by the Material Impairment, or (c) all of the Assigned Lease
Documents. Such right to terminate shall be the sole remedy of Assignee with respect to a Material
Impairment. If Assignee does not elect to exercise its rights to terminate pursuant to this
Section 5 within 5 business days of the lapse of such 20 day cure period, such right to
terminate shall be waived and all of the Assigned Lease Documents shall remain in full force and
effect and Assignee shall have no future rights to terminate pursuant to this Section 5.
If arbitration is required pursuant to the preceding paragraph, the parties shall use
commercially reasonable efforts to cause the arbitration to be completed within 30 days (“Initial
Arbitration Period”) or as soon as reasonably possible thereafter. If the arbitration is not
completed within the Initial Arbitration Period, Landlord shall have the right at any time after
the Initial Arbitration Period to withdraw the dispute from arbitration by electing to terminate
the
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applicable Assigned Lease Document(s) which Assignee has requested be terminated (“Affected
Lease Documents”) and Assignee shall have the right at any time after the Initial Arbitration
Period to withdraw the dispute from arbitration by electing to maintain the Affected Lease
Documents in force. During any dispute regarding a Material Impairment and during any applicable
cure period, Assignee shall be required to continue to pay and perform all of its obligations under
all of the applicable Assigned Lease Documents. If the Arbitrator determines that a Material
Impairment did not exist or if Assignee withdraws from the arbitration following the Initial
Arbitration Period, Assignee shall pay to Landlord a penalty equal to fifty percent (50%) of the
Base Rent payable to Landlord under the Affected Lease Documents (the “Penalty”) for the period
commencing on the expiration of the Initial Arbitration Period and continuing through the earlier
of (i) the resolution of the arbitration, or (ii) the date of Assignee’s withdrawal from the
arbitration. If the Arbitrator determines that a Material Impairment did exist or Landlord elects
to withdraw the dispute from arbitration following the Initial Arbitration Period, Landlord shall
(a) reimburse Assignee for the Base Rent and Operating Expenses paid by Assignee to Landlord under
such Affected Lease Documents applicable to the period between the expiration of the 20 day cure
period (which shall be deemed to have commenced running upon Assignee’s initial notice) provided
for above and the date that the Affected Lease Documents are terminated, and (b) pay to Assignee
the Penalty for the period commencing on the expiration of the Initial Arbitration Period and
continuing through the earlier of (x) the resolution of the arbitration, or (y) the date of
Landlord’s withdrawal from the arbitration. The non-prevailing party, as determined by the
Arbitrator, or the withdrawing party, as the case may be, shall pay all of the prevailing party’s
(or non-withdrawing party’s) reasonable costs of arbitration and reasonable attorneys’ fees.
6. Brokers. Tenant and Assignee represent and warrant to Landlord that no broker
commissions or fees are payable as a result of the assignment and modifications contemplated
herein, and each of Tenant and Assignee hereby indemnifies and agrees to hold Landlord harmless
from and against any loss or liability arising therefrom or from any commissions or fees payable in
connection with the assignment and modifications contemplated herein.
7. No Other Modifications of Lease. Except as expressly provided for herein, nothing
contained herein shall be construed to modify, waive, impair, or affect any of the terms, covenants
or conditions contained in any of the Assigned Lease Documents (including Assignee’s obligation to
obtain any required consents for any other or future assignments or sublettings), or to waive any
breach thereof, or any rights or remedies of Landlord thereunder, or to enlarge or increase
Landlord’s obligations or liabilities thereunder, and all terms, covenants and conditions of the
Suite 650 Lease (as modified herein), Annex Lease (as modified herein) and Storage Lease are hereby
declared by each of Landlord, Tenant and Assignee to be in full force and effect.
8. Oral Modifications. This Agreement may not be changed orally, but only by an
agreement in writing signed by Landlord and the party(ies) against whom enforcement of any change
is sought.
9. Integration. This Agreement supersedes all prior or contemporaneous, written or
oral, memoranda, arrangements, agreements, or understandings between the parties hereto related to
the subject matters addressed herein. Any representations, promises, warranties, or statements
made
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by any party which differ in any way from the terms of this Agreement shall be given no force
or effect.
10. Counterparts. This Agreement 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. The parties agree that this Agreement may be signed by facsimile, with
original to follow.
11. Governing Law. This Agreement 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
of Washington.
12. Successors and Assigns. This Agreement shall be binding upon Landlord, Tenant,
and Assignee and their respective successors, successors-in-interests, transferees and assigns.
13. Time of Essence. Time is of the essence with respect to each provision of this
Agreement.
14. Authority. Each person executing this Agreement on behalf of a party hereto
represents and warrants that he or she is authorized and empowered to do so and to thereby bind the
party on whose behalf he or she is signing.
15. Attorney’s Fees. If any party hereto commences an action against the other
party(ies) arising out of or in connection with this Agreement, the prevailing party shall be
entitled to recover from the losing party(ies) reasonable attorneys’ fees and costs of suit.
16. Further Assurances. The parties hereto shall promptly perform, execute and
deliver or cause to be performed, executed and/or delivered any and all acts, deeds and assurances
as the other party(ies) may reasonably require in order to carry out the intent and purpose of this
Agreement.
[Signatures are on the next page.]
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IN WITNESS WHEREOF, Landlord, Tenant, and Assignee have caused their duly authorized
representatives to execute this Agreement as of the date first above written.
| LANDLORD: | ALEXANDRIA REAL ESTATE EQUITIES, INC., a Maryland corporation |
|||
| By: | /s/ Xxxxxx Xxxx | |||
| Name: | Xxxxxx Xxxx | |||
| Its: | VP — RE LEGAL AFFAIRS | |||
| TENANT: | NURA, INC., a Delaware Corporation |
|||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx, M.D. | |||
| Its: | President | |||
| ASSIGNEE: | OMEROS CORPORATION, a Washington corporation |
|||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx, M.D. | |||
| Its: | Chairman and CEO | |||
