EX-10.40






Exhibit 10.40




FIRST AMENDMENT TO LEASE



THIS
FIRST AMENDMENT TO LEASE (the “Amendment”) is made as of the 21st day of October, 2008 between
8 SYLVAN WAY, LLC, a New Jersey limited liability company, having an office at 15 Maple Avenue,
Morristown, New Jersey 07960 (“Landlord”) and THE MEDICINES COMPANY, a Delaware corporation
(“Tenant”).




INTRODUCTORY STATEMENTS:




     WHEREAS, Landlord and Tenant have previously entered into a Lease Agreement dated
October 11, 2007 (hereinafter referred to as the
“Lease”) covering an entire building to be
renovated by Landlord on certain real property located in Parsippany, New Jersey (the
“Property”)



     WHEREAS, in order to accommodate Tenant’s construction schedule and changes made by
Tenant to the Base Building Work and the Tenant Finish Work, and notwithstanding the
existing provisions of the Lease, the parties wish to set a firm Commencement Date of
December 6, 2008, subject, however, to the terms and conditions set forth herein.



     NOW, THEREFORE, in consideration of the foregoing, the parties agree that the Lease is
hereby amended, effective as of the date of this Amendment, as follows:



     1. Any reference in the Lease to the Phase 2 Commencement Date, the Phase 2 Estimated
Commencement Date, the Phase 3 Commencement Date or the Phase 3 Estimated Commencement Date
shall mean the Phase 2 & 3 Commencement Date and the Phase 2 & 3 Estimated Commencement
Date, it being the intention of the parties that the Phase 2 Premises and the Phase 3
Premises shall be completed at the same time.



     2. The Basic Lease Provisions are hereby amended by deleting Clauses (3) through (8)
and substituting the following therefore:



	 	 	 	 	 
	“(3)

	 	Premises:
	 	173,146 rentable square feet for the Existing Building and
the Additional Building and 2,916 rentable square feet for
the Storage Shed which shall be leased by Tenant in stages
as set forth below:
	 
	 	 	 	 
	 

	 	 	 	From the Commencement Date until the day immediately
preceding the Phase 2 & 3 Premises Commencement Date:
	 

	 	 	 	105,211 rentable square feet of space in the Existing
Building (which is all of the space in the Existing
Building), 24,052 rentable square feet on the 3rd
floor of the Additional Building (which is all of the space
on the third (3rd) floor of the Additional
Building) and the Storage Shed containing 2,916 rentable
square feet (collectively the “Phase 1 Premises”).
	 
	 	 	 	 
	 

	 	 	 	“From the Phase 2 & 3 Commencement Date until the Termination
Date the Premises shall consist of the following: (i) the
Phase 1 Premises, (ii) all of the space






 









 






	 	 	 	 	 
	 

	 	 	 	located on the first floor of the Additional Building,
which is comprised of 21,915 square feet (the “Phase 2
Premises"), and (iii) all of the space located on the second
floor of the Additional Building, which is comprised of 21,968
square feet (the “Phase 3
Premises").”
	 
	 	 	 	 
	(4)

	 	Term:
	 	Fifteen (15) years.
	 
	 	 	 	 
	(5)

	 	Rent Date:
	 	November 22, 2008.
	 
	 	 	 	 
	(6)

	 	Estimated

Commencement

Date for Phase 1

Premises:
	 	December 6, 2008.
	 
	 	 	 	 
	 

	 	Phase 2 & 3

Estimated

Commencement

Date:
	 	November 22, 2009 (the “Phase 2 & 3 Estimated Commencement
Date") with respect to the Phase 2 and Phase 3 Premises.
	 
	 	 	 	 
	(7)

	 	Termination Date:
	 	The day immediately preceding the fifteenth
(15th) year anniversary of the Commencement Date, or
such earlier date upon which the Term may expire or be
terminated.
	 
	 	 	 	 
	(8)

	 	Phase 1 Premises

Commencement Date:
	 	The earlier of: (i) the date Landlord has Substantially
Completed Tenant’s Finish Work with respect to the Phase 1
Premises, or (ii) the date Landlord would have Substantially
Completed Tenant’s Finish Work with respect to the Phase 1
Premises, but for a Tenant Delay.
	 
	 	 	 	 
	 

	 	Phase 2 & 3 Premises

Commencement: Date:
	 	The earlier of: (i) the date Landlord has Substantially
Completed Tenant’s Finish Work with respect to the Phase 2
Premises and the Phase 3 Premises, or (ii) the date Landlord
would have Substantially Completed Tenant’s Finish Work with
respect to the Phase 2 Premises and the Phase 3 Premises, but
for a Tenant Delay. Notwithstanding anything to the contrary
contained in this Lease, in no event shall the Phase 2 & 3
Premises Commencement Date occur prior to November 22, 2009.”






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     3. Clause (9) of the Basic Lease Provisions is hereby amended by (i) deleting the
second paragraph thereof, and (ii) deleting the word “Phase 3 Commencement Date on the
first line of the third paragraph and substituting the phrase “Phase 2 & 3 Commencement
Date” therefore.



     4. Clause (11) of the Basic Lease Provisions is hereby amended by (i) deleting the
third paragraph thereof, and (ii) deleting the phrase “Phase 3 Premises Commencement Date”
on the first line of the fourth (4th) paragraph thereof and substituting the
words “Phase 2 & 3 Commencement Date” therefore.



     5. Section 2.2(b) is hereby deleted in its entirety and the following is substituted
therefore:




     “The “Commencement Date” will be the earlier to occur of (i) the date Tenant takes
occupancy of the Phase 1 Premises for the purposes of conducting its business, and (ii)
five (5) days after Landlord has Substantially Completed (as hereinafter defined) the
Tenant Finish Work for the Phase 1 Premises. Landlord shall use all reasonable and good
faith efforts to have the Tenant Finish Work with respect to the Phase 1 Premises
Substantially Completed on or before December 6, 2008. Subject to a Tenant Delay arising
from and after October 21, 2008 or an Excusable Delay occurring after October 21, 2008, if
Tenant Finish Work with respect to the Phase 1 Premises is not Substantially Completed on
or before December 6, 2008, Tenant’s obligation to pay Basic Rent shall immediately abate
and shall not commence until Substantial Completion of Tenant Finish Work has occurred,
subject to the abatement of Basic Rent as hereinafter described. If Substantial Completion
of Tenant Finish Work has not occurred by December 6, 2008 (subject to a Tenant Delay
arising from and after October 21, 2008 or an Excusable Delay occurring from and after
October 21, 2008), once Substantial Completion of the Tenant Finish Work has occurred and
Tenant’s obligation to pay Basic Rent commences, Tenant shall be entitled to a one day
abatement of Basic Rent with respect to the Phase 1 Premises for each day that the Finish
Work is not completed from December 6, 2008 until February 6, 2009, a two (2) day abatement
of Basic Rent with respect to the Phase 1 Premises for each day that the Finish Work is not
completed from February 7, 2009 until April 6, 2009 and a four (4) day abatement of Basic
Rent with respect to the Phase 1 Premises for each day that the Finish Work is not
completed from April 7, 2009 until Tenant Finish Work is Substantially Completed.




     Landlord shall use all reasonable and good faith efforts to have the Tenant
Finish Work with respect to the Phase 2 Premises and the Phase 3 Premises
Substantially Completed on or before November 22, 2009. Subject to a Tenant Delay
or an Excusable Delay, if Tenant Finish Work with respect to the Phase 2 Premises
and the Phase 3 Premises is not Substantially Completed on or before November 22,
2009, once Tenant’s obligation to pay Basic Rent commences, Tenant shall be
entitled to a one day abatement of Basic Rent with respect to the Phase 2 Premises
and the Phase 3 Premises for each day that the Finish Work is not completed from
November 22, 2009 until February 6, 2010, a two (2) day abatement of Basic Rent
with respect to the Phase 2 Premises and the Phase 3 Premises for each day that the
Finish Work is not completed from February 7, 2010 until April 6, 2010 and a four
(4) day abatement of Basic Rent with respect to the Phase 2



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Premises and the Phase 3 Premises for each day that the Finish Work is not completed from
April 7, 2010 until Tenant Finish Work is Substantially Completed.”



     6. Section 3.1 is hereby deleted in its entirety and the following is substituted
therefore: “Tenant shall pay the Basic Rent to Landlord in lawful money of the United
States of America in equal monthly installments, in advance, on the Basic Rent Payment
Dates, commencing on the Rent Date (November 22, 2008), provided, that the first monthly
installment of Basic Rent will be prorated accordingly. The parties recognize that payment
of Basic Rent shall commence on the Rent Date which is prior to the Commencement Date and
that this arrangement represents the agreement of the parties in light of the other
amendments being made to the Lease”.



     7. Schedule C is hereby amended as follows:



     “(i) Section 1.1(g) is hereby amended by deleting the date “7/31/08” and substituting
“12/6/08” therefore.



     (ii) Sections 1.1(k) through l.l(s) are deleted in their entirety and the following
are substituted therefore:



	 	 	 	 	 
	     “k.

	 	At Tenant’s expense, Tenant shall provide to Landlord the
Final Plans for the Phase 2 Premises and the Phase 3
Premises on or before:
	 	4/1/09
	 
	 	 	 	 
	     1.

	 	Expediter will file for a building permit for the Phase 2
Premises and the Phase 3 Premises not more than ten days
after receipt of construction drawings:
	 	4/13/09 (estimated)
	 
	 	 	 	 
	     m.

	 	Based on the Final Plans and subcontractor bids accepted by
Tenant, Landlord shall provide a final all-in budget for the
Phase 2 Premises and the Phase 3 Premises on or before:
	 	7 weeks after filing
for permit
	 
	 	 	 	 
	     n.

	 	Based on the scope selected by Tenant, Landlord and Tenant
shall agree upon a budget for the Phase 2 Premises and the
Phase 3 Premises on or before:
	 	2 weeks after Landlord
has provided the
all-in budget (m,
above)
	 
	 	 	 	 
	     o.

	 	Subject to Excusable Delays, Landlord will obtain a
building permit for the Phase 2 Premises and the Phase 3
Premises on or before:
	 	12 weeks after filing
for permit
	 
	 	 	 	 
	     p.

	 	Landlord shall Substantially Complete the Tenant Finish
Work for the Phase 2 Premises and the Phase 3 Premises and
shall obtain a Certificate of Occupancy or a Temporary
Certificate of Occupancy on or before:
	 	20 weeks from receipt
of building permit”.






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     (iii) The second sentence in Section 2.2 is hereby deleted in its entirety and the
following is substituted therefore: “The Cafeteria and the Gymnasium will in the aggregate
contain 9,640 rentable square feet and each shall be of a finish consistent with a “Class
A” office building in northern New Jersey.”



     (iv) Section 2.3 is hereby deleted in its entirety and the following is substituted
therefore: ''In addition to the Service Allowance, Landlord has agreed to contribute to
Tenant an amount equal to $4,186,805.00 for the Phase 1 Premises ($35 per square rentable
foot of the Phase 1 Premises minus the rentable square footage of the cafeteria and gym)
and $1,535,905.00 for the Phase 2 Premises and the Phase 3 Premises” ($35 per square
rentable foot of the Phase 2 Premises and the Phase 3 Premises) (collectively the "Tenant
Finish Work Allowance”) toward the Hard Costs and soft costs of constructing the Tenant
Finish Work. The Services Allowance and the Finish Work Allowance is hereinafter referred
to as the “Allowance”.



     (v) Section 2.4 is amended by adding the following at the end thereof: “The portion of
the Tenant Finish Work Allowance allocated to the Phase 1 Premises as provided in Section
2.3 shall be paid by Landlord as the Tenant Finish Work for the Phase 1 Premises is being
performed and the portion of the Tenant Finish Work Allowance allocated to the Phase 2
Premises and the Phase 3 Premises as provided in Section 2.3 shall be paid by Landlord as
the Tenant Finish Work for the Phase 2 Premises and the Phase 3 Premises is being
performed.”



     (vi) Section 8.1 is amended by deleting the copy address and substituting the
following therefore:


“Day Pitney LLP

200 Campus Drive

Florham Park, New Jersey 07932

Attn: Robert A. Klausner, Esq.”.




     8. The definition “Excusable Delay” is hereby amended by adding the following after
the word “thereof” on the first line thereof “(including delays in issuing a building
permit or other similar permits)”.



     9. Landlord and Tenant each: (i) agree that they have resolved all disagreements with
respect to any potential Tenant Delay, Landlord Delay or Excusable Delay in completing
Tenant Finish Work by agreeing upon the terms and provisions set forth in this Amendment,
(ii) releases and waives any claims it may have against the other for a Tenant Delay or a
Landlord Delay, as the case may be, occurring prior to the date of this Amendment, and
(iii) agree that the fact that the Tenant Finish Work will cost more than $90 per rentable
square foot shall not in any event constitute or be grounds for a claim hereafter of
Excusable Delay or Tenant Delay.



     10. Landlord acknowledges that it has received and is satisfied with evidence that the
condition in Section 28.2(i) has been met for reduction of the Letter of Credit by Two
Million Dollars ($2,000,000.00) (namely, that the Federal Drug Administration has approved
the drug Cleviprex and the first invoiced commercial sale of such drug has occurred).
Accordingly, it is agreed that simultaneously with the Phase 1 Commencement Date, Tenant
shall deposit with the Landlord an amendment to the letter of credit increasing the Letter
of Credit to Eight Million Dollars ($8,000,000.00).



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     11. The Agreement, as amended hereby, is hereby ratified, confirmed and deemed in full
force and effect. In the event of any inconsistency between the Lease and this Amendment,
then this Amendment shall govern. No other terms of the Agreement shall be modified except
as expressly set forth herein. This Amendment may be executed in multiple counterparts,
each of which will be deemed an original but together will constitute one instrument. Each
party may rely upon a facsimile or “pdf” counterpart of
this Amendment signed by the other,
party with the same effect as if such party had received an original counterpart signed by
such other party.



     IN WITNESS WHEREOF, the parties have executed this Lease as of the date first
above written.



REMAINDER OF PAGE LEFT INTENTIONALLY BLANK




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	WITNESS:  	Landlord:



8 SYLVAN WAY, LLC





By: Hampshire Partners Fund VI, L.P.,

        its sole member





By: Hampshire Partners LLC,

        its General Partner

 	 
	 	 	/s/
Sandria Miele	 	By:  	/s/
Todd Anderson	 
	 	 	 	 	 	Name:  	Todd Anderson	 
	 	 	 	 	 	Title:  	Portfolio Manager	 
	 





	 	 	 	 	 	 	 	 
	WITNESS:  	Tenant:



THE MEDICINES COMPANY



	 
	/s/
WILLIAM O’CONNOR 	 	By:  	/s/
CLIVE MEANWELL 	 
	WILLIAM O’CONNOR 	 	 	Name:  	CLIVE  MEANWELL 	 
	V.P., CAO 	 	 	Title:  	Chairman & CEO 	 
	 



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