Exhibit 10.2


 


SUBLEASE AGREEMENT


 


THIS
SUBLEASE AGREEMENT (this “Sublease”)
is made this 29th day of May, 2008, by and between CUBIST PHARMACEUTICALS, INC., a Delaware
corporation, having an office at 65 Hayden Avenue, Lexington, Massachusetts
02421 (the “Sublandlord”), and NITROMED,
INC., a Delaware corporation,
having an address at 45 Hayden Avenue, Lexington, Massachusetts 02421 (the “Subtenant”).


 


WITNESSETH


 


WHEREAS, by that
certain Prime Lease dated February 23, 2007 (the “Prime Lease”),
Subtenant, as Tenant, leased certain premises as described therein (the “Prime
Lease Premises”) from The Realty Associates Fund VI, L.P., a Delaware
limited partnership, having an office c/o Jones Lang LaSalle Americas, Inc.,
at 55 Hayden Avenue, Lexington, Massachusetts 02421 (the “Prime Lessor”);


 


WHEREAS, by that
certain Assignment of Lease and Assumption Agreement dated as of May 29,
2008 (the “Assignment”), Subtenant, as Assignor, assigned its interest
in and to the Prime Lease and the Prime Lease Premises to Sublandlord, as
Assignee;


 


WHEREAS, the Prime
Lessor consented to the Assignment to Assignee upon and subject to the terms of
that certain Consent to Assignment of Lease dated as of May 29, 2008 (the “Consent
to Assignment”; the Prime Lease, as affected by the Assignment and the
Consent to Assignment is collectively referred to herein as (the “Prime
Lease”); and


 


WHEREAS, Subtenant
desires to sublease a portion of the Prime Lease Premises from Sublandlord and
Sublandlord is willing to sublease such portion of the Prime Lease Premises to
Subtenant pursuant to the hereinafter contained terms and conditions.


 


NOW, THEREFORE, for and in
consideration of the rents hereinafter reserved and the covenants and
agreements hereinafter contained on the part of Subtenant to be kept, performed
and fulfilled, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:


 


1.             Premises.  Sublandlord does hereby demise and lease unto
Subtenant and Subtenant does hereby agree to lease those certain premises
consisting of  approximately 4,000
rentable square feet (the “Sublease Premises”) within the Prime Lease
Premises.


 


2.             Term/Renewals.


 


a.             The initial
term of this Sublease shall commence on June 1, 2008 (the “Sublease
Commencement Date”), and expire on 11:59 p.m., local time, on the day
immediately preceding the third (3rd) monthly anniversary of the Sublease
Commencement Date, or if the Sublease Commencement Date is not the first day of
a calendar month, then the last day of the third (3rd) full calendar month 


 





















 


following the calendar month in which the Sublease Commencement Date
occurs (together with all renewals and extensions thereof and any holdover, the
“Term”).


 


b.             Provided that, at the time of such exercise, (i) there
exists no Event of Default on the part of Subtenant under this Sublease (nor
any failure by Subtenant to make any required payment or perform any
obligation, of which failure Subtenant has received notice and which, with the
passage of time, would constitute an Event of Default), (ii) Subtenant
then occupies the Sublease Premises, and (iii) this Sublease is still in
full force and effect, Subtenant shall have the automatic right to extend the
Term of this Sublease, without the need for any notice or the execution of an
instrument of renewal, on a month-to-month basis (each such monthly term being
an “Extended Term”).  The initial
Extension Term shall commence on the day immediately following the last day of
the initial Term and, except as otherwise set forth below, shall end at 11:59 p.m.
on the last day of the applicable calendar month.  During any Extended Term, either Sublandlord
or Subtenant may terminate this Sublease upon at least thirty (30) days’
written notice to the other of its intent to terminate.    Each Extended Term shall be on all the
terms and conditions of this Sublease. 
Notwithstanding anything to the contrary herein, the parties hereby
acknowledge and agree that the final Extended Term of this Sublease, to the
extent applicable, shall expire one (1) day prior to the “Expiration Date”
under the Prime Lease.


 


3.             Uses.      The Premises shall be used and occupied by
Subtenant only for the purposes allowed under the Prime Lease and for no other
use or purpose.


 


4.             Rent and Security Deposit.


 


a.             Subtenant shall pay Sublandlord without demand or
offset a monthly rental payable in advance on the first day of each month
throughout the Term of this Sublease in the amount of Nine Thousand One Hundred
Sixty Six Dollars and 67/100 ($9,166.67; $27.50 per rentable square foot x
4,000 rentable square feet, divided by twelve (12) months) (the “Rent”).  Any partial month of occupancy shall be
prorated accordingly.  All Rent to be
paid by Subtenant to Sublandlord under the terms of this Sublease shall be paid
at such place as Sublandlord may from time to time designate, and in lieu of
such designation, then at the place designated in Section 10
of this Sublease for the giving of notices.  Subtenant
shall have no obligation to pay for all or any portion of either utility
payments or other pass-throughs, including, without limitation, any operating
expenses, taxes or insurance premiums, due to the Prime Lessor under the Prime
Lease.


 


b.             Sublandlord and Subtenant hereby acknowledge and
agree that any Security Deposit held by the Prime Lessor under the Prime Lease
will be returned by the Prime Lessor to Subtenant in accordance with the terms
of the Consent to Assignment. 
Sublandlord shall be solely responsible for providing Prime Lessor with
a substitute Security Deposit or any other collateral or security that may be
required under the Prime Lease. 
Subtenant shall not be required to provide Sublandlord with a Security
Deposit under this Sublease.


 


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5.             Preparation for Occupancy.  At the commencement of the Term, Subtenant
shall accept the Sublease Premises in its then “as is” “where is”
condition.  The parties hereby
acknowledge and agree that Subtenant will maintain in the Premises certain
items of personal property in place as of the Sublease Commencement Date.


 


6.             Incorporation
of Prime Lease.


 


a.             Except as otherwise provided herein, this Sublease
is subject to all the terms and conditions of the Prime Lease with the same
force and effect as if they were incorporated herein.  Defined terms in the Prime Lease are hereby
incorporated in this Sublease.  Except as
otherwise specifically provided herein, Subtenant hereby agrees to assume, be
liable and responsible for and perform all acts and all of the terms and
provisions to be observed by Sublandlord, as Tenant under the Prime Lease.


 


b.             Sublandlord represents to Subtenant that the Prime
Lease attached hereto as Exhibit A
is a complete and accurate copy of the Prime Lease, is in full force and effect
and that no notices of default have been sent or received by Sublandlord with
respect to the Prime Lease, nor has any event or condition occurred which, with
the passing of time and/or the giving of notice, would result in a default by
Sublandlord under the Prime Lease.  If
Sublandlord receives any notice or demand from Prime Lessor under the Prime
Lease with respect to the Prime Lease Premises, Sublandlord shall promptly
deliver a true and correct copy of same to Subtenant.


 


c.             The provisions of the Prime Lease which are so
incorporated into this Sublease pursuant to this Section 6
shall, coincident with their incorporation, be amended so that references in
the Prime Lease to “Landlord” and “Tenant” shall be deemed to refer in this
Sublease to Sublandlord and Subtenant, respectively, and references to “Premises”
shall be deemed to refer in this Sublease to the Sublease Premises, unless the
context indicates that such amendment should not be made or such amendment
would have an illogical effect on the provision being so amended.  All uses of the term “Sublease” in this
Sublease shall be regarded as referring to this Sublease, into which the Prime
Lease has been so incorporated.


 


d.             Notwithstanding any of the foregoing provisions of
this Section 6 to the contrary, the
following provisions of the Prime Lease are not incorporated into or made a
part of this Sublease:


 


Section 3.1 (Term, Commencement Date,
Rent Commencement Date and Expiration Date), solely to the extent conflicting
with Section 2 of this Sublease;


 


Section 3.2 (Preparation of the
Premises);


 


Section 3.3 (Condition; Prime Lessor’s
Performance);


 


Section 3.4 (Tenant’s Delays);


 


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Section 3.5 (Early Access);


 


Section 4 (Rent), solely to the extent
conflicting with Section 4 of this
Sublease;


 


Section 5 (Security Deposit), solely to
the extent conflicting with Section 4(b) of this
Sublease;


 


Section 8.1 (Insurance - Tenant), solely
to the extent conflicting with Section 13 of this
Sublease;


 


Article 10 (Real and Personal Property
Taxes), solely to the extent conflicting with Section 4(a) of this
Sublease;


 


Article 12 (Assignment and Subletting),
solely to the extent conflicting with Section 11 of this
Sublease;


 


Section 13.1 (Default by Tenant) solely
to the extent conflicting with Section 9 of this
Sublease;


 


Article 16 (Parking), solely to the
extent conflicting with Section 13 of this
Sublease;


 


Article 27 (Option to Extend), solely to
the extent conflicting with Section 2 of this
Sublease; and


 


Article 41 (Notices), solely to the
extent conflicting with Section 10 of this
Sublease.


 


7.             Prime Lessor’s
Responsibilities.


 


a.                                       Subtenant
acknowledges, understands and agrees that Sublandlord is not obligated under
this Sublease (i) to furnish certain services set forth in Prime Lease to
be furnished by Prime Lessor, (ii) to obtain an agreement of
non-disturbance, or (iii) to perform certain other obligations which are
not within the control of Sublandlord under the Prime Lease.  Notwithstanding anything in this Sublease to
the contrary, Subtenant agrees to look to Prime Lessor to furnish and perform
all obligations furnished and to be performed by Prime Lessor under the Prime
Lease.  Sublandlord shall not be liable
to Subtenant or be deemed in default hereunder for failure of Prime Lessor to
furnish or perform the same.  However,
whenever Prime Lessor shall fail to perform any of its obligations pertaining
to the Premises, Sublandlord shall promptly take such action as may reasonable
under the circumstances to secure such performance upon Subtenant’s request to
Sublandlord to do so and shall thereafter diligently prosecute such performance
on the part of Prime Lessor.  If
Sublandlord fails, after using reasonable efforts, to cause Prime Lessor to
observe and/or perform any of its obligations under the Prime Lease with
respect to the Sublease Premises, Subtenant shall have the right, upon notice
to Sublandlord, and at Subtenant’s sole cost and expense, to bring an action in
Sublandlord’s name to accomplish such purpose and Sublandlord agrees 


 


4





















 


to cooperate with Subtenant in any such action.  Any monetary recovery in such action shall
inure to the benefit of Subtenant.


 


b.                                      Sublandlord
covenants and agrees with Subtenant that Sublandlord (i) will pay all Base
Rent, Tenant’s Share of all Operating Expenses and Tenant’s Share of Taxes (as
those terms are defined in the Prime Lease) and all other additional rent
payable by Sublandlord pursuant to the Prime Lease and will perform all of its
other obligations under the Prime Lease to the extent that such obligations are
not dependent upon possession of the Premises (i.e., Sublandlord will not fail
to provide estoppel certificates and SNDAs to the Prime Lessor as required
under the Prime Lease and Sublandlord will supply financial statements to Prime
Lessor as required under the Prime Lease), and (ii) will not terminate
(except as otherwise expressly permitted under the Prime Lease), modify or
amend the Prime Lease or take any other action that would adversely affect
Subtenant’s use or occupancy of the Sublease Premises (unless consented to by
Subtenant).


 


8.             Quiet
Enjoyment / Indemnities.


 


a.                                       Sublandlord
covenants and agrees with Subtenant that upon Subtenant’s paying the Rent
reserved in this Sublease and observing and performing all of the other
obligations, terms, covenants and conditions of this Sublease, Subtenant may
peaceably and quietly enjoy the Premises during the Term; provided, however,
that this Sublease shall automatically terminate upon termination of the Prime
Lease for any reason whatsoever and Subtenant shall have no claim against
Sublandlord unless such termination was (i) caused by the default of
Sublandlord in the performance of any of Sublandlord’s obligations under the
Prime Lease which have not been assumed by Subtenant hereunder or (ii) made
voluntarily by Sublandlord without Subtenant’s consent.


 


b.                                      Sublandlord
shall indemnify, defend and hold harmless Subtenant, its parents, subsidiaries
and affiliates and their respective officers, directors, employees, agents,
successors and assigns (“Subtenant’s Indemnitees”) from and against all losses,
costs, damages, expenses and liabilities, including, without limitation,
reasonable attorneys’ fees and disbursements, which Subtenant may incur or pay
out by reason of (i) the intentional wrongful acts or negligence of
Sublandlord or its contractors, licensees, agents, servants, or invitees, or (ii) any
breach or default by Sublandlord of its obligations under this Sublease or the
Prime Lease.  Sublandlord’s obligations
under this paragraph shall survive the expiration or earlier termination of
this Sublease.


 


c.                                       Subtenant
hereby agrees that it shall not do, suffer or permit anything to be done which
would constitute a default by Sublandlord under the Prime Lease or would cause
the Prime Lease to be canceled, terminated or forfeited by Prime Lessor under
the Prime Lease.  Subtenant shall
indemnify, defend and hold Sublandlord harmless from and against any and all
claims, judgments, suits, causes of action, proceedings, penalties,
liabilities, losses, injuries, damages, costs and expenses (including, but not
limited to, attorneys’ fees and expenses), occurring during the 


 


5





















 


Term of this Sublease in or about the Sublease Premises and/or the
Building and arising out of the intentional wrongful acts or negligence of
Subtenant or its contractors, licensees, agents, servants, or invitees, except
special and consequential damages.


 


9.             Default and Remedies.


 


a.                                       It shall be an
event of default hereunder (“Event of Default”) if Subtenant shall fail to (i) pay
the Rent as and when due, where such failure shall continue for a period of ten
(10) business days after Sublandlord notifies Subtenant in writing of such
failure, (ii) perform any provision, term or condition of the Prime Lease
within the timeframes set forth in Prime Lease, or (iii) perform any
provision, term or condition of this Sublease (other than as specified in (i) above)
within fifteen (15) days after Subtenant’s receipt of written notice from
Sublandlord specifying such failure or, if it reasonably would require more
than fifteen (15) days to cure such failure, within a time reasonably necessary
to cure such failure after Subtenant’s receipt of such written notice.


 


b.                                      Upon the
occurrence of an Event of Default, Sublandlord shall have the right, at its
option, in addition to all other rights and remedies in this Sublease or those
of Prime Lessor in the Prime Lease, at law or in equity, to give Subtenant
notice of Sublandlord’s termination of this Sublease as of a date specified
therein.  Upon the giving of such notice,
the Term and the estate hereby granted shall expire and terminate as if such
date were the date fixed for the expiration of the Term.


 


c.                                       If Sublandlord
should be in default in the performance of any of its obligations under this
Sublease, which default continues for a period of more than fifteen (15) days
after receipt of written notice from Subtenant specifying such default, or if
such default is of a nature to require more than fifteen (15) days for remedy
and continues beyond the time reasonably necessary to cure (provided
Sublandlord must have undertaken procedures to cure the default within such fifteen
(15) day period and diligently pursue such efforts to cure to completion),
Subtenant may, in addition to availing itself of any other remedies available
at law and in equity, at its option, incur any reasonable expense necessary to
perform the obligation of Sublandlord specified in such notice and deduct such
expense from Rent and other charges next coming due under this Sublease.


 


10.           Notices.  All notices required or contemplated
hereunder shall be in writing and shall be deemed to have been properly given
when (i) delivered by hand or messenger against a receipt, in which case
notice shall be deemed given on the date received; (ii) sent prepaid by a
reputable overnight delivery service, in which case notice shall be deemed
given on the next business day after the date sent; or (iii) sent by
United States mail, certified or registered, return receipt requested, postage
prepaid, in which case notice shall be deemed given two (2) business days
after the date sent, at the following addresses:


 


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SUBLANDLORD:


 


Cubist Pharmaceuticals, Inc.

65 Hayden Avenue

Lexington, MA  02421

Attn: Chief Financial Officer


 


SUBTENANT:


 


NitroMed, Inc.

45 Hayden Avenue, Suite 3000

Lexington, MA  02421


Facsimile: 781-274-8080

Attn: Chief Financial Officer


 


with a copy to:


 


McCarter & English, LLP

265 Franklin Street 

Boston, MA  02110


Facsimile: 617-326-3113

Attn: Jason M. Sweatt


 


or such other persons and
addresses as Sublandlord or Subtenant may specify by notice as provided above.


 


11.           Assignment and Subletting.  Subtenant shall not, without prior written
consent of Sublandlord, which consent shall not be unreasonably withheld,
conditioned or delayed, (a) assign or encumber this Sublease or any
interest under it, in whole or in part; (b) sublet the Sublease Premises or any
part thereof; (c) allow any transfer of Subtenant’s interest herein or any
lien upon Subtenant’s interest by operation of law or otherwise; or (d) permit
the use or occupancy of the Sublease Premises or any part thereof by anyone
other than Subtenant.  Sublandlord’s
consent to any assignment or sublease shall not be deemed to constitute a
waiver by Sublandlord of its required consent to any subsequent assignment or
sublease.


 


12.           Signage.  Subtenant shall be responsible for the cost
and coordination of Subtenant’s signage, which shall be in compliance with
requirements of the Prime Lease and all applicable laws, ordinances and codes.


 


13.           Parking.  Subtenant shall be entitled to use twelve
(12) parking spaces (3 parking spaces per 1,000 square feet of rentable area),
which spaces shall be used in common and on an unassigned basis.


 


14.           Insurance
/ Waiver of Subrogation.


 


a.                                       During the Term, Subtenant
shall, with respect to the Sublease Premises, obtain and maintain at all times
the insurance required to be maintained by “Tenant” under the Prime Lease at
Subtenant’s sole expense.  Such policy
shall name 


 


7





















 


Sublandlord and Prime Lessor as additional insureds and shall be
endorsed to provide that the insurer shall endeavor to provide at least thirty
(30) days’ written notice (ten (10) days in the event of non-payment of
premiums) to Sublandlord prior to any material modification or
cancellation.  At Sublandlord’s request, Subtenant
will provide evidence of insurance to Sublandlord before the Sublease
Commencement Date of the Term of this Sublease and annually thereafter (to the
extent applicable); provided, however, in no event shall
Subtenant be required to provide copies of such insurance policy or any
original insurance documents.  In no
event shall Subtenant be required to provide insurance for any portion of the
Prime Lease Premises, except for the Sublease Premises.


 


b.             Each party hereby waives every right or cause of
action for the events which occur or accrue during the Term for any and all
loss of, or damage to, any of its property (whether or not such loss or damage
is caused by the fault or negligence of the other party or anyone for whom said
other party may be responsible), which loss or damage is covered (or would have
been covered if such party had maintained the coverage required under the Prime
Lease or this Sublease) by valid and collectible fire, extended coverage, “special
form” or similar policies covering real property, personal property or business
interruption insurance policies, to the extent that such loss or damage is
recovered (or would have been recovered if such coverage were in effect as may
be required under the Prime Lease or this Sublease) under said insurance
policies.  Said waivers are in addition
to, and not in limitation or derogation of, any other waiver or release
contained in the Prime Lease or this Sublease with respect to any loss or
damage to property of the parties hereto. 
Each party will give its insurance carrier written notice of the terms
of such mutual waiver, and the insurance policies will be properly endorsed, if
necessary, to prevent the invalidation of coverage by reason of said
waiver.  In the event of a conflict between
this paragraph and any other provision of the Prime Lease or this Sublease, the
terms of this paragraph shall control.


 


15.           Binding and Entire Agreement.  This Sublease shall be binding on and inure
to the benefit of Subtenant, Sublandlord and their respective heirs, executors,
administrators, legal representatives, successors and assigns.  This Sublease contains the entire agreement
of the parties with respect to the subject matter herein contained and may not
be modified except by instrument in writing which is signed by both parties.


 


16.           Hold-Over.  Upon the expiration date of this Sublease,
Subtenant shall surrender and deliver the Sublease Premises to Sublandlord in
good repair and condition, excepting ordinary wear and tear and damage by
casualty.  All tenant improvements shall
become Sublandlord’s property and remain in the Sublease Premises at the
expiration or earlier termination of this Sublease.  Subtenant’s failure to immediately surrender
the Sublease Premises at the end of the Term shall not operate to renew or
extend this Sublease.  If Subtenant holds
over, Subtenant shall become a tenant at sufferance, subject to all of the
conditions and covenants of this Sublease. 
During the holdover period, each party hereto shall give to the other at
least thirty (30) days’ written notice to terminate this Prime Lease, except in
the event of nonpayment of any installment of Rent or the breach of any other
provision hereof, in which event the defaulting party shall not be entitled to
any notice, such notice being hereby expressly waived.


 


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17.           Services and Utilities.  Sublandlord shall be responsible, at its sole
cost and expense and without contribution from Subtenant, for all utilities to
the Sublease Premises, landscaping, maintenance of the HVAC, bulb replacement,
plumbing, janitorial service, snow removal, water and sewer and real estate
taxes.  Sublandlord will, at it sole cost
and expense and without contribution from Subtenant, maintain the roof and
perform any structural repairs as required.


 


18.           Applicable Law.  This Sublease shall be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts.  If any provision of this
Sublease or the application thereof to person or circumstances shall, to any
extent, be invalid or unenforceable, the remainder of this Sublease shall not
be affected thereby and each provision of the Sublease shall be valid and
enforceable to the fullest extent permitted by law.


 


19.           Prime Lessor Consent.  Notwithstanding anything to the contrary
herein, this Sublease shall not be effective until the Prime Lessor has
consented to this Sublease in accordance the Prime Lease, which consent shall
be evidenced by that certain Consent to Sublease dated as of even date herewith.


 


20.           Titles.  The titles contained in this Sublease are
inserted only for convenience and are not to be construed as a part of this
Sublease or as a limitation upon the scope of the particular provisions to
which they refer.


 


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IN
WITNESS WHEREOF, duly authorized representatives of the parties hereto have
executed this Sublease as of the day and year first above written.


 


	
   

  	
  SUBLANDLORD

  
	
   

  	
   

  
	
   

  	
  CUBIST PHARMACEUTICALS,
  INC., a

  
	
   

  	
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Tamara L. Joseph

  
	
   

  	
  Name:

  	
  Tamara L. Joseph

  
	
   

  	
  Title:

  	
  SVP, General
  Counsel & Secretary

  
	
   

  	
  thereto duly authorized

  
	
   

  	
   

  
	
   

  	
  SUBTENANT

  
	
   

  	
   

  
	
   

  	
  NITROMED, INC., a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kenneth M. Bate

  
	
   

  	
  Name:

  	
  Kenneth M. Bate

  
	
   

  	
  Title:

  	
  President and Chief
  Executive Officer

  
	
   

  	
  thereto duly authorized

  
							



 


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EXHIBIT A


 


Prime
Lease


 


Please see Exhibit 10.31 to NitroMed, Inc.’s Annual Report on
Form 10-K for the year ended December 31, 2006, filed with the
Securities and Exchange Commission on March 8, 2007, for a copy of the
Prime Lease.


 


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