EXHIBIT 10.44
EIGHTH AMENDMENT TO LEASE
THIS EIGHTH AMENDMENT TO LEASE (this
“Eighth Amendment”) is made as of the 18
th day of November, 2008 (the “Eighth
Amendment Date”), by and between THE REALTY ASSOCIATES FUND
VI, L.P., a Delaware limited partnership (“Landlord”)
and CUBIST PHARMACEUTICALS, INC., a Delaware corporation
(“Tenant”).
RECITALS:
WHEREAS, by a lease (the
“Original Lease”) dated as of January, 2004, California
State Teachers’ Retirement System (“Calsters”)
leased to Tenant approximately 15,475 rentable square feet of
space, consisting of a portion of the second (Suite 2201-55)
and fourth (Suite 4201-55) floors in the building known as
45-55 Hayden Avenue, Lexington, Massachusetts (the
“Building”); and
WHEREAS, Landlord has succeeded to
the interests of Calsters as landlord under the Lease;
and
WHEREAS, the Original Lease has been
amended by: a First Amendment to Lease between Landlord and Tenant,
dated as of September 29, 2005 (the “First
Amendment”); and by a Second Amendment to Lease between
Landlord and Tenant dated as of November 18, 2005 (the
“Second Amendment”); and by a Third Amendment to Lease
between Landlord and Tenant dated as of June 20, 2007 (the
“Third Amendment”); and by a Fourth Amendment to Lease
dated as of October 25, 2007 (the “Fourth
Amendment”); and by a Fifth Amendment to Lease (the
“Fifth Amendment”) dated as of December 18, 2007;
and by a Sixth Amendment to Lease (the “Sixth
Amendment”) dated as of July 31, 2008; and by a Seventh
Amendment to Lease (the “Seventh Amendment”) dated as
of November , 2008 (the
Original Lease, as so amended, being referred to as the
“Lease”), pursuant to which the size of the premises
demised under the Original Lease was increased to 131,143 rentable
square feet (the “Existing Premises”). The Existing
Premises consist of Suites 2201-55, 2200-55, 3000-55, 4201-55,
4200-55, 4600-45, 1000-55, 3200-55 and 3201-55; and
WHEREAS, by letter dated as of
April 27, 2006, and pursuant to the Second Amendment, Tenant
elected to include Suite 2200-55 (also known as the Comet
Space) in the Existing Premises for the remainder of the Lease
Term; and
WHEREAS, Landlord and Tenant now
desire to further amend the Lease to, among other things, expand
the size of the Existing Premises by adding thereto approximately
3,089 rentable square feet of space, known as Suite 2600-45,
on the second floor of the Building (the “FCG Space”)
and 2,805 rentable square feet of space, known as
Suite 2800-45, on the second floor of the Building (the
“Summit Space;” the FCG Space and the Summit Space are
collectively referred to as the “Eighth Amendment Expansion
Space”), and to adjust the rent and certain provisions, all
on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of
the mutual covenants herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby,
Landlord and Tenant hereby agree as follows:
1.
Defined Terms. All of the foregoing recitals are true and
correct. Unless otherwise defined herein, all capitalized terms
used in this Eighth Amendment shall have the meanings ascribed to
them in the Lease, the Lease shall be amended to incorporate any
additional definitions provided for in this Eighth Amendment, and
all references in the Lease to the “Lease” or
“this Lease” or “herein” or
“hereunder” or similar terms or to any section thereof
shall mean the Lease, or such section thereof, as amended by this
Eighth Amendment.
2.
Additional Terms and Definitions. (a) From and after
the Eighth Amendment Effective Date, the following terms set forth
in “Article 1 Reference Data” of the Lease are
hereby amended or added, as applicable, to have the following
meanings:
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PREMISES:
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The following areas in the 45 and 55 Hayden
Avenue portions of the Building: (i) Suite 2201-55 on the
second floor and Suite 4201-55 on the fourth floor,
(ii) Suite 4200-55 on the fourth floor of the Building,
(iii) Suite 2200-55 on the second floor of the Building,
and (iv) Suite 3000-55 on the third floor of the
Building; and (v) Suite 4600-45 on the fourth floor of
the 45 Hayden Avenue portion of the Building;
(vi) Suite 1000-55 on the first floor of the 55 Hayden
Avenue portion of the Building; (vii) Suite 3200-55 on
the third floor of the 55 Hayden Avenue portion of the Building;
(viii) Suite 3201-55 on the third floor of the 55 Hayden
Avenue portion of the Building; (ix) Suite 2600-45 on the
second floor of the 45 Hayden Avenue portion of the Building; and
(x) Suite 2800-45 on the second floor of the 45 Hayden
Avenue portion of the Building. All such spaces are shown on
Exhibit A-8 , attached hereto and incorporated
herein.
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RENTABLE FLOOR AREA OF THE PREMISES:
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Approximately 137,037 square feet of the 45 and
55 Hayden Avenue portions of the Building as follows (i) 6,755
rentable square feet on the second floor contained in
Suite 2201-55, (ii) 8,720 rentable square feet on the
fourth floor contained in Suite 4201-55 and 31,453 rentable
square feet on the fourth floor of the Building contained in
Suite 4200-
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55, (iii) 6,150 rentable square feet on the
second floor of the Building contained in Suite 2200-55,
(iv) 30,019 rentable square feet on the third floor of the
Building contained in Suite 3000-55; (v) 25,405 rentable
square feet on the fourth floor of the 45 Hayden Avenue portion of
the Building contained in Suite 4600-45, (vi) 12,146
rentable square feet on the first floor of the Building contained
in Suite 1000-55; (vii) 6,215 rentable square feet on the
third floor of the Building contained in Suite 3200-55; and
(viii) 4,280 rentable square feet on the third floor of the
Building contained in Suite 3201-55; (ix) 3,089 rentable
square feet on the third floor of the Building contained in
Suite 2600-45; and (x) 2,805 rentable square feet on the
second floor of the Building contained in
Suite 2800-45.
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(b)
From after the Eighth Amendment Effective Date, the term
“Annual Rent” for the Premises shall be as set on
Schedule I to this Eighth Amendment.
3.
[Intentionally Omitted]
4.
Operating Expenses and Real Estate Taxes. Tenant’s
obligations under Section 4.2 of the Lease to pay Operating
Expenses with respect to the Eighth Amendment Expansion Space shall
be computed using the calendar year ending December 31, 2009
as a base year; and Tenant’s obligations under
Section 4.2 of the Lease to pay increases in Real Estate Taxes
with respect to the Eighth Amendment Expansion Space shall be
computed using the fiscal year ending June 30, 2009 as the
base year.
5.
Effective Date; Delivery and Condition . (a) The
“Eighth Amendment Effective Date” shall be the later to
occur of (i) February 1, 2009 and (ii) the date on
which First Consulting Group (the “Existing Tenant”)
vacates and surrenders the FCG Space and Landlord delivers
possession of the Eighth Amendment Expansion Space to Tenant.
Landlord represents that the Summit Space is currently
vacant.
(b)
Tenant acknowledges that, except as explicitly provided in this
Eighth Amendment and the Lease, it is leasing the Eighth Amendment
Expansion Space in its current AS IS condition, without any
representation or warranty whatsoever on the part of Landlord.
Tenant currently occupies the Existing Premises and is fully
familiar with their condition and that of the common areas of the
Building, and Tenant acknowledges that, to the best of
Tenant’s knowledge (upon reasonable investigation and
inquiry), the Existing Premises and the Eighth Amendment Expansion
Space are in good condition and suitable for Tenant’s uses.
Without limiting the foregoing, Tenant agrees that Landlord has no
obligation to perform any work in or to either the Existing
Premises or
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the Eighth Amendment Expansion Space
to prepare the same for Tenant’s continued use and
occupancy.
(c)
Landlord acknowledges that Tenant desires to make certain
alterations or improvements in the Eighth Amendment Expansion Space
to make the same more suitable for Tenant’s occupancy. Such
alterations or improvements may include tenant improvements to the
Eighth Amendment Expansion Space, installation of fixtures in the
Eighth Amendment Expansion Space, and architectural and engineering
expenses in connection therewith (collectively, the “Eighth
Amendment Expansion Space Improvements”). All Eighth
Amendment Expansion Space Improvements shall be undertaken by
Tenant in strict accordance with the applicable requirements of the
Lease (including without limitation Sections 3.3 and 3.4). The
Eighth Amendment Expansion Space Improvements shall be deemed
substantially complete on that date on which the Eighth Amendment
Expansion Space Improvements have been completed except for items
of work (and, if applicable, adjustment of equipment and fixtures)
which can be completed after Tenant has taken occupancy of the
Eighth Amendment Expansion Space, or any part thereof, without
causing undue interference with Tenant’s use of the Eighth
Amendment Expansion Space or such part thereof. To the extent that
(i) such work is substantially completed in accordance with
such Lease requirements, and (ii) receipted invoices (and
other material required under the Lease such as, but not limited
to, lien waivers from any contractor or subcontractor performing
the Eighth Amendment Expansion Space Improvements) showing the
actual cost thereof are presented to Landlord during the Term of
the Lease, and (iii) at the time of any advance of funds,
there then exists (A) no Event of Default on the part of
Tenant, nor (B) any Actionable Event of Defa
