Exhibit 10.1


 


ASSIGNMENT OF LEASE
AND ASSUMPTION AGREEMENT


 


This ASSIGNMENT OF LEASE AND ASSUMPTION AGREEMENT (“Assignment”)
is made and entered into as of the 29th day of May, 2008, by and
between NITROMED, INC., a Delaware corporation, having an office at 45 Hayden
Avenue, Suite 3000, Lexington, Massachusetts 02421 (“Assignor”) and
CUBIST PHARMACEUTICALS, INC., a Delaware corporation, having an office at 65
Hayden Avenue, Lexington, Massachusetts 02421 (“Assignee”).


 


W I T N E S S E T H


 


WHEREAS, Assignor is the tenant under that certain
lease dated February 23, 2007 (the “Lease”), by and between Assignor and The
Realty Associates Fund VI, L.P., a Delaware limited partnership (the “Landlord”).


 


WHEREAS, a copy of the Lease pertaining to the
premises described therein (the “Premises”) is attached hereto and made
a part hereof as Exhibit A.


 


WHEREAS, capitalized terms that are used herein
without definition shall have the respective meanings set forth in the Lease.


 


NOW, THEREFORE, in consideration of the sum of ten
dollars ($10.00) and for other good and valuable consideration, the mutual
receipt and legal sufficiency of which is hereby acknowledged, the parties
hereto do hereby agree as follows:


 


1.             Assignor hereby
assigns to Assignee the estate of Assignor as tenant created by the Lease,
together with: (a) all of Assignor’s right, title and interest in, to and
under the Lease attached hereto as Exhibit A
and the Premises demised thereby, which Premises are more particularly
described in the Lease; (b) any and all rights to extend or renew the
Lease; and (c) any and all other rights and options granted to Assignor as
the Tenant thereunder, to have and to hold the same unto Assignee, its
successors and assigns, from and after the “Effective Date” (as that term is
defined in Section 10 of this Assignment).


 


2.             Assignee hereby
accepts the assignment of the Lease from Assignor and hereby assumes the
obligation to observe and perform all of the terms, covenants and conditions
thereof to be observed or performed by Assignor thereunder from and after the
Effective Date.


 


3.             Assignor shall
remain liable for and will hold Assignee harmless and indemnify Assignee
against any and all claims and/or liabilities arising from or in connection
with the Lease prior to the Effective Date hereof. Assignee shall be liable for
and will hold Assignor harmless and indemnify Assignor against any and all
claims and/or liabilities arising from or in connection with the Lease from and
after the Effective Date hereof.


 


4.             Assignor
represents and warrants that:


 


(a)           The Lease is in
full force and effect and is enforceable in accordance with its terms.  There exists no default or condition which,
with the giving of notice, the passage of 


 

















 


time or both, could become a default by Assignor or, to Assignor’s
knowledge, by Landlord under the Lease.


 


(b)           Other than
Assignor, there are no parties in possession or parties having any current or
future right to occupy the Premises during the term of the Lease.


 


(c)           The copy of the
Lease attached hereto as Exhibit A is a true and correct copy of the
Lease, and there have been no modifications or amendments to the Lease.


 


5.             In connection
with the assignment of the Lease from Assignor to Assignee, the following terms
and conditions shall apply:


 


(a)           Notwithstanding
this Assignment, Assignor shall have the right to occupy approximately 4,000
square feet of office space (the “Subleased Office Space”) in accordance
with the terms and provisions of that certain Sublease of even date herewith
between Assignee, as Sublandlord, and Assignor as Subtenant (the “Sublease”).


 


(b)           On or before June 1,
2008, Assignor shall deliver possession of the Premises to Assignee with all of
Assignor’s personal property in place.  Assignor,
in its capacity as Subtenant, shall be responsible for removing its items of
personal property located within the Subleased Office Space and the larger Premises
at Assignee’s request in accordance with the Sublease.


 


(c)           Assignor shall
pay for all utilities and other services used at the Premises prior to the
Effective Date hereof.  Except as
otherwise set forth in the Sublease, all utilities and other services from and
after the Effective Date hereof shall be at the sole costs and expense of
Assignee.


 


(d)           The parties
hereby acknowledge and agree that the Security Deposit held by the Landlord
under the Lease shall be returned by Landlord to Assignor in accordance with
the terms of that certain Consent to Assignment of Lease dated as of even date
herewith (the “Consent”).  Assignee
further acknowledges and agrees that Assignee, in accordance with the terms of the
Consent, shall be solely responsible for providing Landlord with a substitute
Security Deposit or any other collateral or security that may be required by
Landlord under the Lease.


 


(e)           For purposes of
Section 1.22 and Section 41 of the Lease, the Assignee’s address
shall be as follows:


 


Cubist
Pharmaceuticals, Inc.

65 Hayden Avenue

Lexington, MA 02421

Attn:  Chief Financial Officer


 


6.             All times set
forth herein shall be of the essence.


 


7.             Assignor and
Assignee each represent and warrant one to the other that neither of them has
employed any broker in connection with the negotiations of the terms of this 


 


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Assignment or the execution hereof. 
Assignor and Assignee hereby agree to indemnify and to hold each other
harmless against any loss, expense or liability with respect to any claims for
commissions or brokerage fees arising from or out of any breach of the
foregoing representation and warranty.


 


8.             This Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns.


 


9.             Assignor and
Assignee each represent and warrant to the other that they have all requisite
authority to enter into this Assignment and to be bound by all terms and
provisions set forth herein.  This
Assignment is made pursuant to, and shall be governed by, and construed in
accordance with the laws of the Commonwealth of Massachusetts.


 


10.           The Effective Date
of this Agreement shall be the date of delivery to Assignor and Assignee of the
Landlord’s Consent to this Assignment.


 


11.           This Agreement
may be executed in one or more counterparts, each of which shall be deemed an
original.  Signatures received by facsimile
or email shall be deemed original signatures.


 


Signature
page follows.


 


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IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as an instrument under seal as of the day and year first above
written.


 


	
   

  	
   

  	
  ASSIGNOR

  
	
   

  	
   

  	
   

  
	
  WITNESS:

  	
   

  	
  NITROMED, INC., a Delaware
  corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Matthew A. Ebert

  	
   

  	
  By 

  	
  /s/ Kenneth M. Bate 

  
	
   

  	
   

  	
  Name:

  	
  Kenneth M. Bate

  
	
   

  	
   

  	
  Title:

  	
  President and Chief
  Executive Officer

  
	
   

  	
   

  	
  thereunto duly authorized

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ASSIGNEE

  
	
   

  	
   

  	
   

  
	
  WITNESS:

  	
   

  	
  CUBIST PHARMACEUTICALS,
  INC., a

  Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Sharon Noble

  	
   

  	
  By 

  	
  /s/ Tamara L. Joseph 

  
	
   

  	
   

  	
  Name:

  	
  Tamara L. Joseph 

  
	
   

  	
   

  	
  Title:

  	
  SVP, General
  Counsel & Secretary

  
	
   

  	
   

  	
  thereunto duly authorized

  
						



 


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Exhibit A


 


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 Lease.


 


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