EXHIBIT 10.41
SIXTH AMENDMENT TO LEASE
THIS SIXTH AMENDMENT TO LEASE (this
“Sixth Amendment”) is made as of the 31
st day of July, 2008 (the “Sixth
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”), by a Fourth Amendment to Lease
dated as of October 25, 2007 and by a Fifth Amendment to Lease
(the “Fifth Amendment”) dated as of December 18,
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 120,648 rentable
square feet (the “Existing Premises”). The Existing
Premises consist of Suites 2201-55, 2200-55, 3000-55, 4201-55,
4200-55, 4600-45 and 1000-55; 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
10,495 rentable square feet of space in Suites 3200-55 and 3201-55
on the third floor of the Building (the “Goodrich
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:
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1.
Defined Terms. All of the foregoing recitals are true and
correct. Unless otherwise defined herein, all capitalized terms
used in this Sixth 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 Sixth 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
Sixth Amendment.
2.
Additional Terms and Definitions. (a) From and after
the Sixth 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;
and (viii) Suite 3201-55 on the third floor of the 55
Hayden Avenue portion of the Building. All such spaces are shown on
Exhibit A-6 , attached hereto and incorporated
herein.
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RENTABLE FLOOR AREA OF THE PREMISES:
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Approximately 131,143 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 4200-55, (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
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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.
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(b)
From after the Sixth Amendment Effective Date, the term
“Annual Rent” for the Premises shall be as set on
Schedule I to this Sixth 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.
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 Goodrich 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 Goodrich
Space shall be computed using the fiscal year ending June 30,
2008 as the base year.
5.
Effective Date; Delivery and Condition . (a) The
“Sixth Amendment Effective Date” shall be the later to
occur of (i) November 1, 2008 and (ii) the date on
which Goodrich, LLC (the “Existing Tenant”) vacates the
Goodrich Space and Landlord delivers possession thereof to
Tenant.
(b)
Tenant acknowledges that, except as explicitly provided in this
Sixth Amendment and the Lease, it is leasing the Goodrich 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 Goodrich
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 Goodrich 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 Goodrich Space to make the same
more suitable for Tenant’s occupancy. Such alterations or
improvements may include tenant improvements to the Goodrich Space,
installation of fixtures in the Goodrich Space, and architectural
and engineering expenses in connection therewith (collectively, the
“Goodrich
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Improvements”). All Goodrich
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 Goodrich Improvements shall
be deemed substantially complete on that date on which the Goodrich
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 Goodrich Space,
or any part thereof, without causing undue interference with
Tenant’s use of the Goodrich 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 Goodrich 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 Goodrich
Improvements, but in no event shall Landlord be obligated to
reimburse Tenant more than the lesser of (x) such actual cost, or
(y) Two Hundred Sixty-two Thousand Three Hundred Seventy-five
Dollars ($262,375.00), or $25.00 per square foot of Rentable Area
in the Goodrich Space (the “Goodrich Improvements
Allowance”). No portion of the Goodrich Improvements
Allowance may be applied to costs of purchasing or installing
furniture or wiring/c
