Exhibit 10.2
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Lease |
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101 Rogers Street, Cambridge,
MA
Molecular Insight Pharmaceuticals, Inc. – Page 1 |
LEASE AGREEMENT
THIS LEASE AGREEMENT (the “
Lease ”) is dated as of April 25, 2008, between
ARE-MA REGION NO. 35, LLC , a Delaware limited liability
company (“Landlord”) , and MOLECULAR INSIGHT
PHARMACEUTICALS, INC. , a Massachusetts corporation (“
Tenant ”).
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Address:
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101 Rogers Street, Cambridge,
Massachusetts 02142 |
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Premises:
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That portion of the building commonly
known and numbered as 101 Rogers Street, Cambridge ,
Massachusetts (the |
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“ Building ”),
which portion contains 19,750 rentable square feet (11,950 rentable
square feet on the fourth floor of the Building and 7,800 rentable
square feet on the second floor of the Building), as determined by
Landlord, as shown on Exhibit A . |
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Project
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The real property on which the
Building is located, together with all improvements thereon and
appurtenances thereto as described on Exhibit B . |
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Base
Rent:
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$55,308.33, per month until
April 1, 2009 (it being agreed, however, that Base Rent for
the second full calendar month of the Term shall be $33,858.33);
$56,959.17 from April 1, 2009 until March 31, 2010 |
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Rentable Area of
Project :
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58,242 sq. ft. |
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Tenant’s
Share:
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33.91% |
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Base
Year:
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The 2008 Tax Year ending
June 30, 2008. |
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Security
Deposit:
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$57,604.17 |
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Commencement
Date:
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The earlier of the date Tenant first
occupies the Premises for business purposes or April 16,
2008. |
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Term:
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Beginning on the Commencement Date
and ending March 31, 2010. |
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Permitted
Use:
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Office and other related uses
consistent with the character of the Project and otherwise in
compliance with |
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the provisions of Section 6
hereof. |
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Address for Rent Payment: |
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Landlord’s Notice Address: |
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Tenant’s Notice Address: |
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P.O. Box 79840
Baltimore, MD 21279-0840
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385 East Colorado Boulevard
Suite 299
Pasadena, CA 91101
Attention: Corporate Secretary
Facsimile : (626) 578-0770 |
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160 Second Street
Cambridge, MA 02142
Attention: Heather Preis, Senior
Manager of Facilities
Facsimile : (617) 492-5664 |
1. Lease of Premises.
Upon and subject to all of the terms and conditions hereof,
Landlord hereby leases the Premises to Tenant and Tenant hereby
leases the Premises from Landlord. The portions of the Project that
are for the non-exclusive use of tenants of the Project are
collectively referred to herein as the “ Common Areas.
” Landlord reserves the right to modify Common Areas.
2. Delivery; Acceptance of
Premises; Commencement Date; Extension and Termination Rights
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(a) Delivery; Acceptance of
Premises; Commencement Date . On or before April 16, 2008
(the “ Target Commencement Date ”) Landlord
shall deliver the Premises to Tenant for the conduct
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Lease |
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101 Rogers Street, Cambridge,
MA
Molecular Insight Pharmaceuticals, Inc. — Page 2 |
of
Tenant’s business broom clean, unoccupied, free of debris and
personal property of others, with the carpeting in the portion of
the Premises located on the fourth floor of the Building
steam-cleaned (“ Delivery ” or “
Deliver ”). If Landlord fails to so Deliver the
Premises on or before the Target Commencement Date, Landlord shall
not be liable to Tenant for any loss or damage resulting therefrom,
and this Lease may be terminated by Tenant by facsimile notice to
Landlord within 2 business days of the Target Commencement Date,
and if so terminated by Tenant: (a) the Security Deposit, or
any balance thereof ( i.e., after deducting therefrom all
amounts to which Landlord is entitled under the provisions of this
Lease), shall be returned to Tenant, and (b) neither Landlord nor
Tenant shall have any further rights, duties or obligations under
this Lease. Upon request of Landlord, Tenant shall execute and
deliver a written acknowledgment of the Commencement Date and the
expiration date of the Term when such are established in the form
of the “Acknowledgement of Commencement Date” attached
to this Lease as Exhibit D ; provided ,
however , Tenant’s failure to execute and deliver such
acknowledgment shall not affect Landlord’s rights
hereunder.
Effective as of the date of Delivery
of the Premises: (i) Tenant shall accept the Premises in their
condition as of such date, subject to all applicable Legal
Requirements (as defined in Section 6 hereof);
(ii) Landlord shall have no obligation for any defects in the
Premises (but nothing contained in this clause (ii) shall
relieve Landlord from its obligations to make repairs pursuant to
Section 11 ); and (iii) Tenant’s taking
possession of the Premises shall be conclusive evidence that Tenant
accepts the Premises and that the Premises were in good condition
at the time of Delivery.
Tenant agrees and acknowledges that
neither Landlord nor any agent of Landlord has made any
representation or warranty with respect to the condition of all or
any portion of the Premises or the Project, and/or the suitability
of the Premises or the Project for the conduct of Tenant’s
business, and Tenant waives any implied warranty that the Premises
or the Project are suitable for the Permitted Use. This Lease
constitutes the complete agreement of Landlord and Tenant with
respect to the subject matter hereof and supersedes any and all
prior representations, inducements, promises, agreements,
understandings and negotiations which are not contained
herein.
(b) Tenant’s Work
. Landlord shall use reasonable efforts to make the Premises
available to Tenant for Tenant’s Work under the Work Letter
attached hereto as Exhibit E (the “ Work
Letter ”) within 5 days of full execution of this
Lease and Tenant’s delivery of evidence of the insurance
required hereby and by the Work Letter. Any occupancy of the
Premises by Tenant before the Commencement Date shall be subject to
all of the terms and conditions of this Lease.
(c) Early Access . Prior
to the Commencement Date, Tenant shall have access to the Premises
solely for the purposes of preparing the Premises for its
occupancy, including installing furniture and telephone and data
cabling; provided, however, that in exercising such right of early
access Tenant shall be subject to all of the terms and conditions
of this Lease, except for the obligation to pay Base Rent as long
as Tenant does not operate its business in the Premises.
Notwithstanding anything to the contrary, in the event that Tenant
operates is business in the Premises, the Commencement Date shall
be deemed to have occurred and, in addition to performance of all
the other obligations of Tenant under this Lease, Tenant shall be
obligated to pay Base Rent from and after such date.
(d) Right to Extend
Term. Tenant shall have the right to extend the Term of the
Lease upon the following terms and conditions:
(i)
Extension Rights . Tenant shall have 2 consecutive rights
(each an “ Extension Right ”) to extend the term
of this Lease for 6 months (each an “ 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 the Extension Right at least 60 days
prior, and no earlier than 120 days prior, to the expiration
of the original Term of the Lease. Upon the commencement of any
Extension Term, Base Rent shall be payable at a rate per annum
equal to the sum of (A) $1.00 per rentable square foot of the
Premises plus (B) the annual Base Rent rate payable as of the
date immediately preceding the commencement of the Extension Term.
Notwithstanding the foregoing, Landlord may inform Tenant, within
30 days of receipt of an exercise of an Extension Right that
the Building is scheduled to undergo demolition, substantial
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Lease |
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101 Rogers Street, Cambridge,
MA
Molecular Insight Pharmaceuticals, Inc. — Page 3 |
renovation or use change in which case such exercise of the
Extension Right shall be null and void and the Term shall expire
without addition thereto of any portion of the Extension Term
referred to therein.
(ii)
Rights Personal. The Extension Right is personal to Tenant
and 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, if any .
(iii)
Exceptions . Notwithstanding anything set forth above to the
contrary, the Extension Right shall not be in effect and Tenant may
not exercise the Extension Right:
(1) during
any period of time that Tenant is in Default under any provision of
this Lease; or
(2) 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
6 month period immediately prior to the date that Tenant
intends to exercise the Extension Right, whether or not the
Defaults are cured.
(iv)
No Extensions . The period of time within which the
Extension Right may be exercised shall not be extended or enlarged
by reason of Tenant’s inability to exercise the Extension
Rights.
(v)
Termination . The Extension Right shall terminate and be of
no further force or effect even after Tenant’s due and timely
exercise of the Extension Right, if, after such exercise, but prior
to the commencement date of the Extension Term, Tenant fails to
timely cure any default by Tenant under this Lease, whether or not
such default is cured.
3. Base Rent .
(a) The first month’s Base
Rent and the Security Deposit shall be due and payable on, and
Tenant shall deliver the certificate(s) of insurance as required
under Section 14 simultaneously with, delivery of an
executed copy of this Lease to Landlord. Tenant shall pay to
Landlord in advance, monthly installments of Base Rent on or before
the first day of each calendar month during the Term hereof, in
lawful money of the United States of America, at the office of
Landlord for payment of Rent set forth above. Payments of Base Rent
for any fractional calendar month shall be prorated. If the
Commencement Date is other than the first day of a calendar month,
the difference between the first full calendar month’s Base
Rent paid upon delivery of an executed copy of this Lease by Tenant
to Landlord as required above, and the prorated Base Rent for the
fractional month in which the Commencement Date occurs, shall be
applied by Landlord to such first full calendar month after the
Commencement Date. Tenant shall have no right at any time to abate,
reduce, or set-off any Rent due hereunder.
(b) In addition to Base Rent,
Tenant agrees to pay as additional rent (“ Additional
Rent ”) (i) to the applicable outside utility provider,
all costs and charges for electricity for the Premises, which
electricity shall be separately metered, (ii) to Landlord,
Tenant’s Share of “ Excess Taxes ” (as
defined in Section 4 ), and (iii) to Landlord, any
and all other amounts Tenant assumes or agrees to pay under the
provisions of this Lease, including, without limitation, any and
all other sums that may become due by reason of any default of
Tenant or failure to comply with the agreements, terms, covenants
and conditions of this Lease to be performed by Tenant, after any
applicable notice and cure period. Tenant’s obligations to
pay Base Rent and Additional Rent hereunder are collectively
referred to herein as “ Rent ”.
4. Taxes Payment .
(a) Landlord shall deliver to
Tenant a written estimate of Taxes for each calendar year during
the Term commencing on or after January 1, 2009 (the “
Annual Estimate ”), which may be revised by Landlord
from time to time during such calendar year. During each month of
the Term ending on or after the first anniversary of the
Commencement Date, on the same date that Base Rent is due, Tenant
shall
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Lease |
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101 Rogers Street, Cambridge,
MA
Molecular Insight Pharmaceuticals, Inc. — Page 4 |
pay
Landlord an amount equal to 1/12th of Tenant’s Share of the
Annual Estimate. Payments for any fractional calendar month shall
be prorated. The term “ Excess Taxes ” means
Taxes for the applicable year in excess of Taxes for the Base
Year.
(b) Subject to Tenant’s
payment obligations described above, Landlord shall pay all taxes,
levies, assessments and governmental charges of any kind
(collectively referred to as “ Taxes ”) imposed
by any federal, state, regional, municipal, local or other
governmental authority or agency, including, without limitation,
quasi-public agencies (collectively, “ Governmental
Authority ”) during the Term, including, without
limitation, all Taxes: (i) imposed on or measured by or based,
in whole or in part, on rent payable to Landlord under this Lease
and/or from the rental by Landlord of the Project or any portion
thereof, or (ii) based on the square footage, assessed value
or other measure or evaluation of any kind of the Premises or the
Project, or (iii) assessed or imposed by or on the operation or
maintenance of any portion of the Premises or the Project,
including parking, or (iv) assessed or imposed by, or at the
direction of, or resulting from statutes or regulations, or
interpretations thereof, promulgated by, any Governmental
Authority, or (v) imposed as a license or other fee on
Landlord’s business of leasing space in the Project. Landlord
may contest by appropriate legal proceedings the amount, validity,
or application of any Taxes or liens securing Taxes. Taxes shall
not include any net income taxes imposed on Landlord unless such
net income taxes are in substitution for any Taxes payable
hereunder. If any such Tax is levied or assessed directly against
Tenant, then Tenant shall be responsible for and shall pay the same
at such times and in such manner as the taxing authority shall
require. Tenant shall pay, prior to delinquency, any and all Taxes
levied or assessed against any personal property or trade fixtures
placed by Tenant in the Premises, whether levied or assessed
against Landlord or Tenant. If any Taxes on Tenant’s personal
property or trade fixtures are levied against Landlord or
Landlord’s property, or if the assessed valuation of the
Project is increased by a value attributable to improvements in or
alterations to the Premises, whether owned by Landlord or Tenant
and whether or not affixed to the real property so as to become a
part thereof, higher than the base valuation on which Landlord from
time-to-time allocates Taxes to all tenants in the Project,
Landlord shall have the right, but not the obligation, to pay such
Taxes. Landlord’s determination of any excess assessed
valuation shall be binding and conclusive, absent manifest error.
The amount of any such payment by Landlord shall constitute
Additional Rent due from Tenant to Landlord immediately upon
demand.
5. Security Deposit .
The Security Deposit shall be held by Landlord without obligation
for interest thereon as security for the performance of
Tenant’s obligations under this Lease. The Security Deposit
is not an advance rental deposit or a measure of Landlord’s
damages in case of Tenant’s default. Upon each occurrence of
a Default (as defined in Section 16 ), Landlord may use
all or part of the Security Deposit to pay delinquent payments due
under this Lease, and the cost of any damage, injury, expense or
liability caused by such Default, without prejudice to any other
remedy provided herein or provided by law. Upon any such use of all
or any portion of the Security Deposit, Tenant shall pay Landlord
on demand the amount that will restore the Security Deposit to its
original amount. Upon bankruptcy or other debtor-creditor
proceedings against Tenant, the Security Deposit shall be deemed to
be applied first to the payment of Rent and other charges due
Landlord for periods prior to the filing of such proceedings.
Landlord’s obligation respecting the Security Deposit is that
of a debtor, not a trustee; no interest shall accrue thereon. The
Security Deposit shall be the property of Landlord, but shall be
paid to Tenant when Tenant’s obligations under this Lease
have been completely fulfilled. Landlord shall be released from any
obligation with respect to the Security Deposit upon transfer of
this Lease and the Premises to a person or entity assuming
Landlord’s obligations under this Section 5 .
Tenant hereby waives the provisions of any law, now or hereafter in
force, which provide that Landlord may claim from a security
deposit only those sums reasonably necessary to remedy defaults in
the payment of Rent, to repair damage caused by Tenant or to clean
the Premises, it being agreed that Landlord may, in addition, claim
those sums reasonably necessary to compensate Landlord for any
other loss or damage, foreseeable or unforeseeable, caused by the
act or omission of Tenant or any officer, employee, agent or
invitee of Tenant. The Security Deposit, or any balance thereof
(i.e., after deducting therefrom all amounts to which Landlord is
entitled under the provisions of this Lease), shall be returned to
Tenant (or, at Landlord’s option, to the last assignee of
Tenant’s interest hereunder) within 90 days after the
expiration or earlier termination of this Lease.
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Lease |
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101 Rogers Street, Cambridge,
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Molecular Insight Pharmaceuticals, Inc. — Page 5 |
6. Use . The Premises
shall be used solely for the Permitted Use set forth in the Basic
Lease Provisions, in compliance with all laws, orders, judgments,
ordinances, regulations, codes, directives, permits, licenses,
covenants and restrictions now or hereafter applicable to the
Premises, and the use and occupancy thereof (collectively, “
Legal Requirements ”). Tenant will use the Premises in
a careful, safe and proper manner and will not commit waste,
overload the floor or structure of the Premises, subject the
Premises to use that would damage the Premises or obstruct or
interfere with the rights of Landlord or other tenants or occupants
of the Project, including conducting or giving notice of any
auction, liquidation, or going out of business sale on the
Premises, or using or allowing the Premises to be used for any
unlawful purpose.
7. Holding Over . If
Tenant remains in possession of the Premises after the expiration
or earlier termination of the Term, as the same may be extended
pursuant to Section 2(d) , without the express written
consent of Landlord, (A) Tenant shall become a tenant at
sufferance upon the terms of this Lease except that the monthly
rental shall be equal to 200% of the Rent in effect during the last
30 days of the Term, and (B) Tenant shall be responsible
for all damages suffered by Landlord resulting from or occasioned
by Tenant’s holding over, including consequential damages.
Acceptance by Landlord of Rent after the expiration of the Term or
earlier termination of this Lease shall not result in a renewal or
reinstatement of this Lease.
8. Parking . This Lease
does not contain or create any parking rights or privileges on the
Project or any other property.
9. Utilities, Services .
Landlord shall provide, subject to the terms of this Section
9 , utilities to the Premises (“ Utilities
”). Tenant shall pay, (a) prior to delinquency, directly
to the outside utility provider, for electricity as provided in
Section 3(b) and (b) directly to Landlord, within
30 days of invoice, as Additional Rent, Tenant’s
proportionate share (as reasonably determined by Landlord) of the
cost of electricity and natural gas for heating and air
conditioning of the Building. No interruption or failure of
Utilities, from any cause whatsoever other than Landlord’s
willful misconduct, shall result in abatement of Rent. Tenant
agrees to limit use of water and sewer with respect to Common Areas
to normal restroom use.
10. Alterations . Tenant
shall not make any alterations, additions, or improvements to the
Premises of any kind whatsoever, except that Tenant may construct
nonstructural alterations in the Premises without Landlord’s
prior approval if the aggregate cost of such work does not exceed
$10,000 (a “Notice-Only Alteration”), provided Tenant
notifies Landlord in writing of such intended Notice-Only
Alteration and such notice shall be accompanied by plans and
specification and other information as may be reasonably requested
by Landlord. Tenant shall cause, at its sole cost and expense, any
Alterations to comply with insurance requirements and with Legal
Requirements. Tenant shall reimburse Landlord for and indemnify and
hold Landlord harmless from, any expenses incurred by Landlord by
reason of faulty work by Tenant or its contractors or inadequate
cleanup. Any such work shall be completed free and clear of liens,
and Tenant shall provide (and cause its contractor to provide)
certificates of insurance for workers’ compensation and other
coverage in amounts and from an insurance company satisfactory to
Landlord protecting Landlord against liability for personal injury
or property damage during construction. Upon completion of any
Alterations, Tenant shall deliver to Landlord: (i) sworn
statements setting forth the names of all contractors and
subcontractors who did the work and final lien waivers from all
such contractors and subcontractors; and (ii) “as
built” plans for any such Alterations.
11. Landlord’s
Repairs . Landlord shall maintain all of the Project and the
Premises in working repair, reasonable wear and tear and uninsured
losses, damages caused by Tenant, or by any of Tenant’s
agents, servants, employees, invitees and contractors
(collectively, “ Tenant Parties ”), fire or
other casualty and condemnation excluded and shall provide
commercially customary reasonable cleaning of the Premises and the
common areas of the Building each business day. In recognition of
the short term nature of this Lease, Landlord shall have the right
to provide limited repairs to maintain the Building structural
components, equipment and systems in lieu of replacement thereof.
Landlord shall repair losses and damages caused by Tenant or any of
Tenant Parties at Tenant’s sole cost and expense. Landlord
reserves the right to stop utilities or other building system
services when necessary
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101 Rogers Street, Cambridge,
MA
Molecular Insight Pharmaceuticals, Inc. — Page 6 |
upon 2
business days’ prior written notice, except in an emergency,
when no prior notice is required. Landlord shall have no
responsibility or liability for failure to provide utilities or
supply other building system services during any such period of
interruption; provided , however , that Landlord
shall give Tenant 24 hours advance notice of any planned stoppage
of utilities building system services for routine maintenance,
repairs, alterations or improvements by Landlord. As provided in
Section 27, Landlord shall not be liable for any failure to
make any repairs or to perform any maintenance.
12. Liens . Tenant shall
discharge, by bond or otherwise, any liens filed against the
Premises or against the Project arising out of work performed or
claimed to have been performed, materials furnis
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