EXHIBIT 10.45
NINTH AMENDMENT TO LEASE
THIS NINTH AMENDMENT TO LEASE (this
“Ninth Amendment”) is made as of the 19
th day of December, 2008 (the “Ninth
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 18, 2008; and by an Eighth Amendment to Lease (the
“Eighth Amendment”), dated as of November 18, 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 137,037 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, 3201-55, 2600-45 and 2800-25;
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
14,092 rentable square feet of space, known as Suites 2100-45 and
2100-55, on the second floor of the Building (together, the
“JLL 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
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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 Ninth 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 Ninth 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
Ninth Amendment.
2.
Additional Terms and Definitions. (a) From and after
the Ninth 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;
(x) Suite 2800-45 on the second floor of the 45 Hayden
Avenue portion of the Building; (xi) Suite 2100-45 on the
second floor of the 45 Hayden Avenue portion of the Building; and
(xii) Suite 2100-55 on the second floor of the 55 Hayden
Avenue portion of the Building. All such spaces are shown on
Exhibit A-9, attached hereto and incorporated
herein.
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RENTABLE FLOOR AREA
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OF THE PREMISES:
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Approximately 151,129 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
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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, (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; (x) 2,805 rentable square feet on the
second floor of the Building contained in Suite 2800-45; (xi)
1,184 rentable square feet on the second floor of the Building
contained in Suite 2100-45; and (xii) 12,908 rentable square
feet on the second floor of the Building contained in
Suite 2100-55.
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(b)
From after the Ninth Amendment Effective Date, the term
“Annual Rent” for the Premises shall be as set on
Schedule I to this Ninth 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 JLL 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 Ninth
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
“Ninth Amendment Effective Date” shall be the later to
occur of (i) February 1, 2009 and (ii) the date on
which Jones Lang LaSalle (the “Existing Tenant”)
vacates and surrenders the JLL Space and Landlord delivers
possession of the Ninth Amendment Expansion Space to
Tenant.
(b)
Tenant acknowledges that, except as explicitly provided in this
Ninth Amendment and the Lease, it is leasing the JLL 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
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Tenant’s knowledge (upon
reasonable investigation and inquiry), the Existing Premises and
the JLL 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 JLL 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 JLL Space to make the same more
suitable for Tenant’s occupancy. Such alterations or
improvements may include tenant improvements to the Ninth Amendment
Expansion Space, installation of fixtures in the Ninth Amendment
Expansion Space, and architectural and engineering expenses in
connection therewith (collectively, the “JLL Space
Improvements”). All Ninth 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 JLL Space Improvements shall
be deemed substantially complete on that date on which the JLL
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 JLL Space,
or any part thereof, without causing undue interference with
Tenant’s use of the JLL 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 JLL 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 Default (as defined in the Third
Amendment), Landlord shall reimburse Tenant, within thirty (30)
days after receipt of each such invoice (together with lien waivers
for all costs theretofore billed), for costs actually incurred by
Tenant (excluding the costs of furniture), as evidenced by such
invoices, in connection with the design and construction of the JLL
Space Improvements, but in no event shall Landlord be obligated to
reimburse Tenant more than the lesser of (x) such actual cost,
or (y) Three Hundred Fifty-two Thousand Three Hundred Dollars
($352,300.00), or $25.00 per square foot of Rentable Area in the
JLL Space (the “JLL Space Improvements
Allowance”
