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Exhibit 10.36
FIFTH
AMENDMENT TO LEASE
THIS FIFTH
AMENDMENT TO LEASE (this "Fifth Amendment") is made as of the 18
th day of December, 2007 (the "Fifth 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 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 108,502 rentable square feet
(the "Existing Premises"). The Existing Premises consist of Suites
2201-55, 2200-55, 3000-55, 4201-55, 4200-55 and 4600-45;
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 12,146 rentable square feet of space in
Suite 1000-55 on the first floor of the Building (the "First
Floor 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 Fifth 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 Fifth 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 Fifth Amendment.
-
- 2.
- Additional Terms
and Definitions. (a) From and after the Fifth 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:
| PREMISES: |
|
The
following areas in the 55 Hayden Avenue portion 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; and
(vi) Suite 1000-55 on the first floor of the 55 Hayden
Avenue portion of the Building. All such spaces are shown on
Exhibit A-5, attached hereto and incorporated herein. |
RENTABLE FLOOR AREA OF THE PREMISES: |
|
Approximately 120,648 square feet of the 55 Hayden Avenue portion
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 4200-55,
(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, and (vi) 12,146 rentable
square feet on the first floor of the Building contained in
Suite 1000-55;. |
-
-
- (b)
- From after the Fifth
Amendment Effective Date, the term "Annual Rent" for the Premises
shall be as set on Schedule I to this Fifth
Amendment. Notwithstanding the foregoing, so long as the Lease
remains in full force and effect, and so long as no Actionable
Event of Default (as defined in the Third Amendment) shall exist
under the Lease, Landlord will waive the requirement that Tenant
pay Annual Rent on the First Floor Space for the months of May and
June, 2008. For the avoidance of doubt, for the period prior to
May 1, 2008, Tenant shall owe the Annual Rent attributable to
the First Floor Space on a pro-rated basis only for the period of
time from the Fifth Amendment Effective Date through April 30,
2008.
2
-
- 3.
- Right of First
Offer. Notwithstanding any provision of the
Lease to the contrary (including without limitation Section 6
of the Third Amendment), Landlord and Tenant hereby agree that the
G-1 Suspension Period is void and without further force or effect.
In addition, Tenant's rights under Exhibit G-1 to the Lease
(Right of First Offer) to the Lease with respect to (i) the
portion of the second floor of the Building containing 8,017
rentable square feet (Suite 2500-45) which has been leased to
Celerant, or (ii) the portion of the third floor of the 45
Hayden Avenue portion of the Building containing 19,815 rentable
square feet (Suite 3000-45), which has been leased to
NitroMed, shall be deemed to be revived and in full force and
effect with respect to any future leasing (subject, however, to the
existing rights and other qualifications set forth in the schedule
of Rights of Existing Building Tenants annexed hereto as
Schedule 2, which replaces in its entirety the similar
schedule annexed to Exhibit G-1 to the Lease). Notwithstanding
the foregoing, Tenant shall have no rights under Exhibit G-1
to lease approximately 2,805 rentable square feet of space located
on the second floor of the Building and most recently occupied by
Summit Mortgage.
- 4.
- Operating Expenses
and Real Estate Taxes. From the Fifth Amendment Effective Date
through April 30, 2008, Tenant's Annual Rent for the First
Floor Space include amounts to cover Operating Expenses and Real
Estate Taxes. Such amounts are agreed-upon fixed amounts and are
not subject to adjustment or reconciliation. From and after
April 30, 2008, Tenant's obligations under Section 4.2 of
the Lease to pay Operating Expenses with respect to the First Floor
Space shall be computed using the calendar year ending
December 31, 2008 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 First Floor Space shall be computed using
the fiscal year ending June 30, 2008 as the base year.
- 5.
- Effective Date;
Delivery and Condition. (a) The "Fifth Amendment Effective
Date" shall be the later to occur of (i) January 1, 2008
and (ii) the date on which Zingdom Communications, Inc.
(the "Existing Tenant") vacates the First Floor Space and Landlord
delivers possession thereof to Tenant. If the Fifth Amendment
Effective Date is delayed due solely to a holdover by the Existing
Tenant, and if (without imposing on Landlord any obligation to do
so) Landlord actually recovers any premium rent or other additional
amount in the nature of rent from the Existing Tenant solely on
account of such holding over, Landlord shall pay Tenant fifty
percent (50%) of any net excess rent ( i.e. , after deducting Landlord's
reasonable costs and expenses in recovering the same) above the
Existing Tenant's base rent, actually received by Landlord due to
such holdover. Such payment shall be made within thirty
(30) days after Landlord's receipt of such excess rent from
the Existing Tenant.
- (b)
- Tenant acknowledges
that, except as explicitly provided in this Fifth Amendment and the
Lease, it is leasing the First Floor 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 First Floor 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 the First Floor 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 First Floor Space to make the same more suitable for Tenant's
occupancy. Such alterations or improvements may include tenant
improvements to the First Floor Space, installation of fixtures in
the First Floor Space, and architectural and engineering expenses
in connection therewith (collectively, the "First Floor
Improvements"). All First
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