Exhibit 10.2
L E A S
E
THIS LEASE is dated as of
September 25, 2007, 2007 between the Landlord and the Tenant
named below, and is of space in the Building described below.
ARTICLE 1
BASIC DATA; DEFINITIONS
1.1 Basic Data
. Each reference in this Lease to any of the following terms shall
be construed to incorporate the data for that term set forth in
this Section:
Landlord : Newgate
Properties, LLC
Landlord’s Address :
100 Institute Road, Worcester, MA 01609
Tenant : RXI Pharmaceuticals
Corporation
Tenant’s Address : One
Innovation Drive, Worcester, MA
Property : 60-68 Prescott
Street, One Gateway Place, Worcester, MA
Building : The building
commonly known and numbered as 60 Prescott Street, Worcester,
MA.
Premises : The portion of the
first floor of the Building consisting of approximately 2,882
usable square feet of office space and a portion of the third floor
consisting of approximately 2,425 usable square feet of laboratory
space, all as more particularly shown on
Exhibit A attached hereto. The specific area of
the Premises shall be determined by the registered architect for
the Landlord in accordance with the methodology set forth in
Exhibit A-1 .
Basic Rent : The Basic Rent
for the Premises is as follows:
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RENTAL PERIOD |
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MONTHLY BASIC RENT |
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Rent Commencement
Date to July 31, 2009
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15,036.50 |
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Security Deposit. Upon the execution of the Lease,
the Tenant shall be obligated to pay to the Landlord one
month’s rent (the “Security Deposit”) in the
manner described at Section 1.1 hereof, which shall be held as
security for the Tenant’s performance as herein provided and
refunded to the Tenant at the end of the Lease subject to the
Tenant’s satisfactory compliance with the conditions hereof.
The Landlord shall not be obligated to pay interest on or segregate
such amount from other funds of the Landlord.
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Lease Commencement Date :
Upon Substantial Completion of the Landlord’s Improvements
described herein by the Landlord and delivery to the Tenant in
accordance with the terms of this Lease. The parties shall
acknowledge the Lease Commencement Date on the form attached hereto
as Exhibit B .
Rent Commencement Date: Upon
the later of: (i) Landlord’s Substantial Completion of
the Landlord’s Improvements described herein by the Landlord;
or (ii) December 1, 2007.
Term : One term of
approximately twenty (20) months (“ Initial Term
”), commencing on the Lease Commencement Date and expiring on
the last day of the calendar month after the expiration of twenty
(20) calendar months after the Rent Commencement Date.
Notwithstanding anything to the contrary herein, Tenant shall have
the options (i) to terminate this Lease effective on any date
at least six (6) months after the Term Commencement Date as
may be specified by at least ninety (90) days’ notice to
Landlord (in which event this Lease shall terminate on such
effective date with the same effect as if such effective date were
the date originally specified herein for the expiration hereof);
and (ii) in the event Tenant has signed a lease of other space
in Gateway Park to which Tenant intends to relocate its operations
from the Premises, by notice to Landlord, either to extend the Term
of this Lease on a month-to-month basis until, or to terminate this
Lease early when, such other leased space has been prepared for and
Tenant has accomplished such relocation and Tenant’s
occupancy.
Option Space: During the term
of this Lease, the Tenant shall have the option to add to the
Premises that portion of the Building in
Exhibit D marked as “ Option Space
” upon not less than sixty (60) days written notice to
the Landlord. It is agreed that the Option Space consists of
approximately 1,030 usable square feet of floor area. Upon such
exercise, the Option Space shall be deemed to be a part of the
Premises and the Basic Rent shall be increased at a rate of usable
square footage of the Option Space multiplied by $34.00 per annum.
In addition, Tenant shall have full access to Room 3238, the
common area immediately across the corridor from the open lab
space. Tenant shall not have the right to use the Option Space
absent exercise of the option by written notice to the Landlord. In
addition, in the event Blue Sky Biotech vacates the office space
set forth in blue and marked “Blue Sky” on
Exhibit E, Tenant shall have a first right of refusal to
occupy such space. It is agreed that the Blue Sky space is
approximately 500 usable square feet.
Initial General Liability
Insurance : $1,000,000 per occurrence/$2,000,000 aggregate
(combined single limit) for property damage, bodily injury or
death.
Permitted Uses : General
office uses and scientific laboratory space for research and
development in the life sciences field of study which shall be
conducted in compliance with all applicable municipal, state and
federal laws, rules and regulations and in all events the Permitted
Uses shall be conducted in a manner so as to not be unreasonably
disruptive in any manner to any other tenant or occupant in the
Building. Tenant will procure and maintain in full force and effect
all licenses and permits which may be required for any use made of
the Premises.
1.2 Definitions
. In addition to the terms defined throughout this Lease, when used
in Lease, the capitalized terms set forth below shall bear the
meanings set forth below.
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Business Day : All days
except Saturdays, Sundays, local, state and federal holidays.
Force Majeure : Collectively
and individually, strikes or other labor trouble, fire or other
casualty, acts of God, governmental preemption of priorities or
other controls in connection with a national or other public
emergency or shortages of fuel, supplies or labor resulting
therefrom, or any other cause, whether similar or dissimilar,
beyond the reasonable control of the party required to perform an
obligation.
Substantial Completion :
Shall mean that the Landlord’s Improvements have been
completed in accordance with Exhibit A and the
plans and specifications approved by Tenant so that either a
temporary or a permanent certificate of occupancy has been issued
by the City of Worcester, subject to minor items of repair,
correction, adjustment or completion set forth in a so-called
“punch list” signed by Landlord and Tenant, the
incompletion of which do not and the subsequent completion of which
will not, adversely affect or interfere with Tenant’s use of
the Premises or the completion of Tenant’s Work. Landlord
will complete the punch list items within thirty (30) days
after the Lease Commencement Date. In the event the punch list
items are not complete within thirty (30) days after the Lease
Commencement Date, Tenant shall have the right to withhold thirty
percent of the Monthly Basic Rent until such punch list items are
completed.
1.3 Enumeration of
Exhibits . The following Exhibits are a part of this Lease,
are incorporated herein by reference attached hereto, and are to be
treated as a part of this Lease for all purposes. Undertakings
contained in such Exhibits are agreements on the part of Landlord
and Tenant, as the case may be, to perform the obligations stated
therein.
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Exhibit A |
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— Plan of the Premises and
Landlord Improvements |
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Exhibit A-1 |
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— Measurement Methodology |
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Exhibit B |
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— Lease Commencement Date
Acknowledgment |
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Exhibit C |
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— WPI Equipment and Vivarium
Space Subject to Tenant Use |
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Exhibit D |
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— Option Space |
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Exhibit E |
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— First Floor Option Office
Space |
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ARTICLE 2
PREMISES AND APPURTENANT RIGHTS
2.1 Lease of
Premises . Landlord hereby leases and demises to Tenant and
Tenant hereby leases from Landlord the Premises for the Term and
upon the terms and conditions hereinafter set forth.
2.2 Appurtenant Rights
and Reservations .
(a) Tenant
shall have, as appurtenant to the Premises, the non-exclusive right
to use, and permit its invitees, employees and authorized
subtenants to use in common with Landlord and others, public or
common walkways necessary for access to the Building and the
Premises and the access roads, driveways, loading areas, pedestrian
sidewalks, landscaped areas,
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bathrooms and other areas or facilities, if any, which are located
in or on the Property (the “Common Facilities”)
; but such rights shall always be subject to reasonable rules and
regulations from time to time established by Landlord pursuant to
Section 14.5 (the “ Rules and Regulations
”) and to the right of Landlord to designate and change from
time to time areas and facilities so to be used, provided, however,
that any newly designated or changed Common Facilities shall be
substantially similar to those in existence on the Lease
Commencement Date.
(b) Landlord
shall have the right to place in the Premises (but in such manner
as to cause no interference with Tenant’s use of the
Premises) utility lines, equipment, stacks, pipes, conduits, ducts
and the like.
(c) Tenant
shall have the right, as appurtenant to the Premises, the
non-exclusive and subordinate right to utilize the kitchen area,
conference rooms and auditorium within that portion of the Building
leased and occupied by Worcester Polytechnic Institute (“
WPI ”) as may be reasonably required by Tenant and in
all events subject to the scheduling requirements of WPI.
(d) In
conjunction with the Lease, Tenant shall be provided the
opportunity to utilize certain pieces of equipment and space owned
by WPI, including but not limited to the Vivarium located within
that portion of the Building leased by WPI. A list of such
equipment and a plan of such space as are subject to this provision
is attached as Exhibit C . Tenant shall be
obligated to coordinate the use of the equipment and the Vivarium
with WPI and shall pay to WPI a reasonable rate to be agreed to on
a per hour or per animal basis for the use of such equipment and
the Vivarium.
ARTICLE 3
BASIC RENT AND SECURITY DEPOSIT
3.1 Payment of Basic
Rent .
(a) Tenant
agrees to pay the Basic Rent to Landlord, or as directed by
Landlord, commencing on the Rent Commencement Date, without offset,
abatement, deduction or demand except as set forth in this Lease.
Basic Rent shall be payable in equal monthly installments, in
advance, on the first day of each and every calendar month during
the Term of this Lease, to Landlord at Landlord’s Address or
at such other place as Landlord shall from time to time designate
by notice, in lawful money of the United States. In the event that
any installment of Basic Rent is not paid within twenty
(20) business days of when due, Tenant shall pay, in addition
to any charges under the Lease, an administrative fee equal to five
(5%) percent of the overdue payment. Landlord and Tenant agree that
all amounts due from Tenant under or in respect of this Lease shall
be considered as rental reserved under this Lease for all purposes,
including without limitation regulations promulgated pursuant to
the Bankruptcy Code, and including further without limitation
Section 502(b) thereof.
(b) Basic
Rent for any partial month shall be pro-rated on a daily basis, and
if the first day on which Tenant must pay Basic Rent shall be other
than the first day of a calendar month, the first payment which
Tenant shall make to Landlord shall be equal to a
proportionate
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part of
the monthly installment of Basic Rent for the partial month from
the first day on which Tenant must pay Basic Rent to the last day
of the month in which such day occurs.
(c) Basic
Rent is full service gross rent and includes all real estate taxes,
insurance, utilities, operating expenses and other costs and
expenses except as herein expressly provided.
ARTICLE 4
CONDITION OF THE PREMISES
4.1 Condition of the
Premises. Subject to the completion of Landlord’s
Improvements by the Landlord, at Landlord’s expense, relative
to the office space portion of the Premises and the work described
in this Section and (the “ Landlord’s
Improvements ”), the Premises are being leased in their
“AS IS” condition. The Landlord agrees that at the time
of delivery (i) the Premises shall be in conformity with all
applicable laws, ordinances, rules and regulations, (ii) the
Premises shall be free of latent defects, (iii) the
Landlord’s Improvements and the work described in this
Section shall be completed in a good and workmanlike manner, using
only new materials, (iv) the Landlord, at the Landlord’s
expense, shall have obtained all permits required for the
completion and occupancy of the Landlord’s Improvements and
the work described in this Section, (v) all base building
mechanical, electrical, plumbing and other Building systems shall
be in good operating condition and repair, and (vi) the
Premises shall be free and clear of all tenants and occupants. If
the Landlord’s Improvements and the work described in this
Section are not substantially completed by December 15, 2007,
the Landlord will credit one-half day’s Basic Rent for each
day after December 15, and one full day’s Basic Rent for
each day after December 31, that the office space is not
Substantially Completed, excluding, any delays that are
attributable to RXi. If the Landlord’s Improvements and the
work described in this Section are not complete by February 1,
2008, then the Tenant may terminate this Lease by delivering
written notice to the Landlord, in which case this Lease shall
terminate on the date set forth in the notice. There are no
Landlord’s Improvements contemplated or anticipated to the
laboratory portion of the Premises and any such work shall be
conducted by Tenant pursuant to Section 5.2.
ARTICLE 5
USE OF PREMISES
5.1 Permitted
Use .
(a) Tenant
agrees that the Premises shall be used and occupied by Tenant and
its authorized subtenants only for Permitted Uses (defined
hereinabove) and for no other use without Landlord’s express
written consent which consent may be withheld or conditioned in the
sole and unfettered discretion of the Landlord. It shall be the
Tenant’s responsibility and obligation to obtain and maintain
the proper licenses and permits for the Tenant’s business at
the Tenant’s expense and the Landlord makes no representation
with respect to the availability or
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non-availability of such licenses or permits. Landlord represents
and warrants that the Premises may be used for the Permitted Uses
under applicable zoning and other land use laws.
(b) Tenant
agrees for itself and its authorized subtenants to conform to the
following provisions during the Term of this Lease:
(i)
Tenant will not place on the exterior of the Premises, Property or
on any part of the Building, any sign, symbol, advertisement or the
like, other than the existing signs located on the Property,
without first obtaining Landlord’s consent, which shall not
be unreasonably withheld, for interior signs. Landlord agrees to
cooperate with Tenant as to sign locations. With regard to the
installation of any signs, the Tenant shall comply with all
provisions of Section 5.2 herein. The Tenant shall maintain
and repair the Tenant’s signs located on the Property as of
the date of this Lease and shall bear all costs and expenses
associated therewith. Tenant agrees to have a sign installed in the
lobby of the Building prior to the Rent Commencement Date and to
permit Landlord to advertise the tenancy of the Tenant in the
Building in accordance with Section 14.10 (the “
Publicity Restrictions ”):
(ii)
Tenant shall not perform any act or carry on any practice which may
injure the Premises, or any other part of the Building and shall
operate the Premises in a reputable manner;
(iii)
Tenant shall, in its use of the Premises, comply with the
requirements of all applicable governmental laws, rules and
regulations, including, without limitation, the Americans With
Disabilities Act of 1990 and the regulations of the Massachusetts
Architectural Access Board, subject to Tenant’s right to
contest the same in good faith and postpone such compliance during
the pendency of such contest; provided, that Tenant shall not be
responsible for ensuring the Premises complies with such laws when
(i) such legal requirements are imposed on a Building-wide
basis or would be generally applicable to any office space and do
not relate to Tenant’s particular manner of use of the
Premises, (ii) a notice of violation or order was issued prior
to the date Tenant is given possession of the Premises, or
(iii) such legal requirements require investigating,
certifying, monitoring, encapsulating, removing or in any way
dealing with asbestos or hazardous substances unless such asbestos
or hazardous substances were introduced into the Premises by
Tenant; and
(iv)
Tenant agrees that the Premises and any other part of the Building
will be used and occupied in a careful, reasonably safe and proper
manner and that Tenant will not permit waste therein that results
from negligence or breach hereof on the part of Tenant, its
employees, agents, invitees and others acting on its behalf.
5.2 Installations and
Alterations by Tenant .
(a) Tenant
shall be responsible for any and all alterations, additions and
improvements (“ Improvements ”) that are
required to complete the Premises such that the Premises can be
used for the Tenant’s purposes, with the sole exclusion being
the Landlord’s
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Improvements. Prior to any structural Improvements being made, the
Tenant shall provide any and all plans and specifications and a
list of contractors for the prior consent and approval of the
Landlord, which shall not be unreasonably withheld, delayed or
conditioned. All work shall be (i) performed in a good and
workmanlike manner and in compliance with all applicable laws,
ordinances and regulations; (ii) be made at Tenant’s
sole cost and expense (excluding the Landlord’s
Improvements); (iii) other than Tenant’s Removable
Property, become part of the Premises and the property of Landlord;
and (iv) be coordinated with any work being performed by
Landlord in such a manner as not to damage the Building or
interfere with the construction or operation of the Building.
(b) Tenant
shall be responsible for the installation and payment of all phone
systems desired by the Tenant at the Premises.
(c) All
articles of personal property and all laboratory hoods and other
business and trade fixtures, inventory, machinery and equipment and
furniture owned or installed by Tenant solely at its expense in the
Premises (“ Tenant’s Removable Property ”)
shall remain the property of Tenant and may be removed by Tenant at
any time prior to the expiration or earlier termination of the
Term, provided that Tenant, at its expense, shall repair any damage
to the Building caused by such removal.
(d) Notice
is hereby given that Landlord shall not be liable for any labor or
materials furnished or to be furnished to Tenant upon credit, and
that no mechanic’s or other lien for any such labor or
materials shall attach to or affect the reversion or other estate
or interest of Landlord in and to the Premises, the Building or the
Property. Tenant agrees that if, any lien is filed against all or
any part of the Property for work claimed to have been done for, or
materials claimed to have been furnished to, Tenant or its agents,
employees or independent contractors, Tenant, at its sole cost and
expense, shall cause such lien to be dissolved within ten (10)
business days after receipt of notice that such lien has been
filed, by the payment thereof or by the filing of a bond sufficient
to accomplish the foregoing. If Tenant shall fail to discharge any
such lien within ten (10) business days’ notice,
Landlord may, at its option, discharge such lien and treat the cost
thereof (including reasonable attorneys’ fees incurred in
connection therewith) as payable within ten (10) days of
demand, it being expressly agreed that such discharge by Landlord
shall not be deemed to waive or release the Event of Default in not
discharging such lien. Tenant shall indemnify and hold Landlord
harmless from and against any and all expenses, liens, claims,
liabilities and damages based on or arising, directly or
indirectly, by reason of the making of any alterations, additions
or improvements by or on behalf of Tenant to the Premises under
this Section, which obligation shall survive the expiration or
termination of this Lease.
(e) In
the course of any work being performed by Tenant (including,
without limitation, the “field installation” of any
Tenant’s Removable Property), Tenant agrees to use labor
compatible with that being employed by Landlord for work in the
Building or on the Property or other buildings owned by Landlord or
its affiliates (which term, for purposes hereof, shall include,
without limitation, entities which control or are under common
control with or are controlled by Landlord or, if Landlord is a
partnership or limited liability company, by any partner or member
of Landlord and which may include Consigli Construction Co., Inc.)
and not to employ or permit the use of any labor or otherwise take
any action which might result in a
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labor
dispute involving personnel providing services in the Building or
on the Property pursuant to arrangements made by Landlord. Tenant
intends to use Conlangelo & Son as its contractor and Landlord
has no objection to same.
(f) No
Improvements shall be performed in a manner that is unreasonably
disruptive to other tenants, or invitees of Landlord in the
Building, or to the public in general, or which causes unreasonable
noise, vibration, dust or is unreasonably unclean or unsightly.
Upon notice from the Landlord, subject to Sections 10.4 and
11.2, the Tenant shall, at its sole cost and expense, repair any
damage to the Building or the Property caused by or resulting from
any Improvements.
(g) To
the fullest extent permitted by law, Tenant shall indemnify and
hold harmless Landlord and its agents and employees from and
against all claims, damages, losses and expenses (except if arising
in whole or in part from the negligence, willful misconduct or
breach hereof on the part of Landlord or its agents, employees or
contractors) including, but not limited to, reasonable
attorneys’ fees, to the extent arising out of or resulting
from any Improvements, provided that such claim, damage, loss or
expense is attributable to bodily injury, sickness, disease or
death, or to injury to or destruction of tangible property,
including loss of use resulting therefrom, but only to the extent
caused in whole or in part by negligent acts or willful misconduct
of Tenant or its contractors or anyone for whose acts they may be
liable. Such obligation shall not be construed to negate, abridge,
or reduce other rights or obligations of indemnity elsewhere in
this Lease or which would otherwise exist as to a party or person
described in this Article.
(h) Tenant
shall ensure that all contractors (which include sub-contractors of
any contractor) who will enter the Premises or the Building, and
others employed directly or indirectly by them, shall purchase
insurance which, at a minimum, shall be consistent with the
following:
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(a) |
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insurance covering workers’ or workmen’s
compensation claims. |
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(b) |
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commercial general liability insurance covering claims for
personal injury and property damage. |
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(c) |
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During the period of any construction of the Tenant’s
Improvements or alterations pursuant to this Section,
contractor’s or builder’s “all risk”
insurance covering property damage and loss of use claims. |
The
insurance required by this Article shall be written for not less
than limits specified herein for Tenant’s Insurance.
Coverages, whether written on an occurrence or claims-made basis,
shall be maintained without interruption from date of commencement
of the Work until date of final payment and termination of any
coverage required to be maintained after final payment.
Original
certificates of insurance evidencing full compliance with this
Article shall be delivered to Landlord prior to commencement of the
Improvements. These certificates and the insurance
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policies
required by this Article shall expressly name Landlord and
Landlord’s mortgagee as additionally insured, and shall
contain a provision that coverages afforded under the policies will
not be canceled or allowed to expire until at least thirty
(30) days’ prior written notice has been given to
Landlord.
5.3 Cleanliness,
Maintenance of Certain Equipment, Trash
The Landlord shall be responsible for
storage and disposing of any non-hazardous trash and waste. Tenant
shall be responsible for placing all such trash in the appropriate
receptacles provided by the Landlord. With regard to any hazardous
or infectious materials defined in any federal or state laws, rules
or regulations, used in the Premises by Tenant or any of
Tenant’s officers, employees, contractors or agents, the
Tenant shall be responsible for disposing such materials within or
from the Premises at its sole cost and expense and in accordance
with all applicable law, rule or regulation. The Tenant shall be
required to comply with any and all municipal, state or federal
regulations or laws with regard to the storage, handling and
disposal of hazardous material and with any reasonable guidelines
as developed for the Property by the Landlord.
ARTICLE 6
ASSIGNMENT AND SUBLETTING
6.1 Terms and
Conditions .
(a) Tenant
and Landlord covenant and agree that, except in the case of a
sublease or assignment in connection with a merger, consolidation
or sale of substantially all of its assets by the Tenant, the
Tenant may not sublet or assign all or a portion of the Premises
wit
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