EXHIBIT 10.1


 


RBS CITIZENS, NATIONAL ASSOCIATION


 


LOAN AND SECURITY AGREEMENT


 


As of December 29, 2008


 


1.             SECURITY INTEREST. CUBIST PHARMACEUTICALS, INC., a Delaware
corporation (the “Borrower”), for
valuable consideration, receipt whereof is hereby acknowledged, hereby grants
to RBS Citizens, National Association,
the secured party hereunder (hereinafter called the “Bank”), a continuing security interest in and to, and assigns
to Bank the collateral described on Exhibit “A” attached hereto and
incorporated herein by this reference (the “Collateral”).


 


2.             OBLIGATIONS SECURED. The security interest
granted hereby is to secure payment and performance of the loans made hereunder
and as evidenced by the Revolving Credit Note (as hereinafter defined) and all
other debts, liabilities and obligations of Borrower to Bank, direct or
indirect, absolute or contingent, primary or secondary, due or to become due,
now existing or hereafter arising, including, without limitation, all interest,
fees, charges and expenses arising out of or due to Bank in connection with
this Agreement (all hereinafter called “Obligations”).


 


3.             BORROWER’S PLACES OF BUSINESS, Borrower’s
principal executive office and the office where Borrower keeps its records
concerning its accounts, contract rights and other property, is that shown at
the end of this Agreement.


 


4.             BORROWER’S ADDITIONAL REPRESENTATIONS AND WARRANTIES.  Borrower represents and warrants, as to each
Borrower as applicable, that:


 


(a)               The Borrower is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and is duly qualified and in good standing in every other
state in which it is doing business except in those states in which a failure
to qualify would not  have a material adverse
effect.


 


(b)              The execution, delivery and
performance of this Agreement, and any other document executed in connection
herewith, are within the Borrower’s powers, have been duly authorized, are not
in contravention of law or the terms of the Borrower’s by-laws or other
organizational papers, or of any indenture, agreement or undertaking to which
the Borrower is a party or by which it or any of its properties may be bound.


 


(c)               Borrower is the owner of the
Collateral and the same is free and clear of any lien, pledge, security
interest, charge, mortgage or encumbrance of any nature whatsoever, except
security interests in favor of Bank.


 


(d)           There is no action, suit, proceeding
or investigation pending or, to Borrower’s knowledge, threatened against or affecting
it or any of its assets before or by any court or other governmental authority
which, if determined adversely to it, would have a material adverse effect on
its financial condition, business or prospects or the value of any Collateral.


 

















 


5.                                       LOANS AND OTHER FINANCIAL ACCOMMODATIONS.


 


(a)             Subject to the terms and provisions
of this Agreement, the Bank hereby establishes a discretionary revolving line
of credit in Borrower’s favor in the amount of the Credit Limit (as defined
below), as determined by Bank from time to time hereafter. Bank may make such
loans to Borrower, based upon such facts and circumstances existing at the time
of the request, as from time to time Bank elects to make which are secured by
the Collateral and the proceeds thereof. Without limiting the discretionary
nature of Bank’s decision to make loans hereunder, or the demand feature of any
loans that Bank does make hereunder, Borrower agrees that the aggregate unpaid
principal of all loans outstanding at any one time shall not exceed the Credit
Limit (as defined below).


 


(b)             Procedure For
Borrowing.  When making a request for
any loan hereunder, the Borrower shall deliver to the Bank an irrevocable
notice thereof on Borrower’s letterhead (the “Borrowing
Request”) addressed in accordance with Section 14(g) hereof
(which notice must be received by the Bank prior to 12:00 Noon, Boston,
Massachusetts time), (a) two (2) Business Days prior to the requested
borrowing date if a LIBOR Rate Loan and on the day of the requested borrowing
if a Prime Rate Loan, specifying (i) the amount to be borrowed, (ii) the
requested borrowing date (the “Borrowing Date”),
(iii) if applicable, the length of the LIBOR Interest Period (as that term
is defined in the Revolving Credit Note) therefor, (iv) a collateral
calculation evidencing that the Collateral described in Exhibit “A” is
valued at not less than One Hundred and Two (102%) Percent of the aggregate of (x) all
advances then outstanding hereunder and (y) the amount of the requested
advance contained in the Borrowing Request (the “Minimum
Collateral Value”), and (v) if necessary to reflect any change
in the Collateral being held by the Bank to secure the Obligations, a signed
amendment to this Agreement amending Exhibit “A” in the form attached
hereto as Exhibit “B”.  Each
borrowing hereunder shall be in the minimum amount of $1,000,000.00 and in
integral multiples of $1,000,000.00 in excess thereof.  Provided the Borrower is not in default
hereunder and the Bank has not otherwise made demand for payment such borrowing
will be made available to the Borrower by the Bank crediting Borrower’s loan
account with the Bank in the amount specified in the Borrowing Request on such
Borrowing Date.


 


(c)             All loans made by the Bank shall
bear interest, and at the option of the Bank, shall be evidenced by and
repayable in accordance with that certain Revolving Credit Note from Borrower
to the Bank, of even date (the “Revolving Credit Note”),
but in the absence of notes shall be conclusively evidenced by Bank’s records
of loans and repayments (absent demonstrable error) and shall be payable on
demand.


 


(d)             The term “Credit Limit”
as used herein shall mean an amount equal to Ninety Million and 00/100
($90,000,000.00) Dollars.


 


(e)             Borrower hereby authorizes and
directs Bank, in Bank’s sole discretion (provided, however, Bank shall have no
obligation to do so): to pay accrued interest as the same becomes due and
payable pursuant to this Agreement and to treat the same as a loan to Borrower,
which shall be added to Borrower’s loan balance pursuant to this Agreement.


 


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(f)              Payment in Full on Termination.
ON DEMAND or termination of this Agreement pursuant to Section 13 or
acceleration of the obligations pursuant to Section 10, Borrower shall pay
to Bank the entire outstanding principal balance of all loans made hereunder.


 


6.             BANK’S REPORTS. After the end of each
month, Bank will render to Borrower a statement of Borrower’s loan account with
Bank hereunder, showing all applicable credits and debits. Each statement shall
be considered correct and to have been accepted by Borrower and shall be
conclusively binding upon Borrower in respect of all charges, debits and
credits of whatsoever nature contained therein under or pursuant to this
Agreement, and the closing balance shown therein, unless Borrower notifies Bank
in writing of any discrepancy within thirty (30) days of receipt by Borrower
from Bank of any such monthly statement.


 


7.             CAPITAL ADEQUACY. If after the date hereof,
Bank determines that (i) the adoption of any applicable law, rule, or
regulation regarding capital requirements for banks or bank holding companies
or the subsidiaries thereof, (ii) any change after the date hereof in the
interpretation or administration of any such law, rule or regulation by
any governmental authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or (iii) compliance by Bank or
its holding company with any request or directive of any such governmental
authority, central bank or comparable agency regarding capital adequacy
(whether or not having the force of law), has the effect of reducing the return
on Bank’s capital to a level below that which Bank could have achieved (taking
into consideration Bank’s and its holding company’s policies with respect to
capital adequacy immediately before such adoption, change, or compliance and
assuming that Bank’s capital was fully utilized prior to such adoption, change,
or compliance) but for such adoption, change, or compliance as a consequence of
Bank’s commitment to make advances pursuant hereto by any amount deemed by Bank
to be material:


 


(i)            Bank
shall promptly, and in any event within 30 days, after Bank’s determination of
such occurrence, give written notice thereof to Borrower; and


 


(ii)           Borrower
shall pay to Bank as an additional fee from time to time, on demand, such
amount as Bank certified to be the amount that will compensate Bank for such
reduction.  A certificate of Bank
claiming entitlement to compensation as set forth above will be conclusive in
the absence of manifest error. Such certificate will set forth the nature of
the occurrence giving rise to such compensation, the additional amount or
amounts to be paid to Bank, and the method by which such amounts were
determined.  In determining such amount,
Bank may use any reasonable averaging and attribution method.  Bank shall allocate such cost increase among
its customers in good faith and on an equitable basis.


 


8.                                       GENERAL AGREEMENTS OF BORROWER.


 


(a)           Except for Bank’s gross negligence or
willful misconduct, Borrower will indemnify and save Bank harmless from all
loss, costs, damage, liability or expenses (including, without limitation,
court costs and reasonable attorneys’ fees) that Bank may sustain or incur by
reason of defending or protecting this security interest or the priority
thereof or enforcing the Obligations, or in the prosecution or defense of any
action or proceeding concerning any matter growing out 


 


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of or in connection
with this Agreement and/or any other documents now or hereafter executed in
connection with this Agreement and/or the Obligations and/or the Collateral.
This indemnity shall survive the repayment of the Obligations and the
termination of Bank’s agreement to make loans available to Borrower and the
termination of this Agreement.


 


(b)           All advances by Bank to Borrower
under this Agreement and under any other agreement relating to the loans made
hereunder constitute one general revolving fluctuating loan, and all
indebtedness of Borrower to Bank under this and under any such other agreement
constitute one general Obligation. Each advance to Borrower hereunder or
otherwise shall be made upon the security of all of the Collateral held and to
be held by Bank. It is distinctly understood and agreed that all of the rights
of Bank contained in this Agreement shall likewise apply, insofar as
applicable, to any modification of or supplement to this Agreement and to any
other agreements relating to the loans made hereunder between Bank and
Borrower. Any default of this Agreement by Borrower shall constitute, likewise,
a default by Borrower of any other agreement with Bank now existing or
hereinafter entered into relating to the loans made hereunder, and any default
by Borrower of any such other agreement with Bank shall constitute a default of
this Agreement.  The entire Obligation of
Borrower to Bank shall become due and payable when payments become due and
payable hereunder upon demand, termination or acceleration of this Agreement.


 


(c)           Borrower will, at its expense, upon
request of Bank promptly and duly execute and deliver such documents and
assurances and take such actions as may be necessary or desirable or as Bank
may reasonably request in order to correct any defect, error or omission which
may at any time be discovered or to more effectively carry out the intent and
purpose of this Agreement and to establish, perfect and protect Bank’s security
interest, rights and remedies created or intended to be created hereunder.
Without limiting the generality of the above, Borrower authorizes Bank to file
financing and continuation statements pursuant to the Uniform Commercial Code
or other notices appropriate under applicable Federal or state law in form
satisfactory to Bank if and when necessary to perfect Bank’s security interest
in the Collateral.


 


9.                                       BORROWER’S NEGATIVE COVENANTS. Borrower will not at any time:


 


(a)           (Disposition
of Collateral) sell, assign, exchange or otherwise dispose of the Collateral
except for the exchange or replacement of the Certificate of Deposit with other
collateral acceptable to Bank.; or


 


(c)           (Liens) create, permit to be created
or suffer to exist any lien, encumbrance or security interest of any kind (“Lien”) upon the Collateral.


 


10.                                 DEFAULT; RIGHTS AND REMEDIES UPON DEFAULT.


 


The Bank and
Borrower acknowledge and agree that any and all loans advanced hereunder are
payable ON DEMAND.  At the same time, the
Bank shall have the right to monitor financial statements of the Borrower on an
ongoing basis for purposes of monitoring the financial well being of the
Borrower.  Set forth below are Events of
Default, which are meant only to set forth examples of circumstances under
which the Bank may choose to make demand hereunder. 


 


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However, nothing
contained in this section or elsewhere in this Agreement, including without
limitation any covenants or other terms or provisions which could otherwise be
construed as establishing standards of conduct, shall affect the demand nature
of such of the Obligations, including without limitation loans and advances
under this Agreement, as are by their terms, demand obligations. The occurrence
of an Event of Default shall not be a prerequisite for the Bank’s making demand
or requiring payments of such obligations.


 


Upon the
occurrence of any one or more of the following events (herein, “Events of Default”), any and all Obligations of the Borrower
to the Bank shall become immediately due and payable, at the option of the Bank
and without notice or demand.  The
occurrence of any such Event of Default shall also constitute, without notice
or demand, a default under all other agreements between the Bank and the
Borrower directly related to arrangements under which the Borrower incurs (or
has incurred) indebtedness or other similar obligations to the Bank and
instruments and papers given to the Bank by the Borrower that are directly
related to such indebtedness or other similar obligations, whether such
agreements, instruments, or papers now exist or hereafter arise, namely:


 


(i)            The
failure by the Borrower to pay upon demand (or when due, if not payable on
demand) any amount due under this Agreement.


 


(ii)           The
failure by the Borrower to promptly, punctually and faithfully perform, or
observe any term, covenant or agreement on its part to be performed or observed
pursuant to any of the provisions of this Agreement.


 


(iii)          The
occurrence of any event such that any indebtedness of the Borrower from any
lender other than Bank in excess of $10,000,000 could be accelerated,
notwithstanding that such acceleration has not taken place.


 


(iv)          The
occurrence of any event of default under any agreement between Bank and the
Borrower or instrument or paper given Bank by the Borrower relating to the
loans made hereunder, whether such agreement, instrument, or paper now exists
or hereafter arises (notwithstanding that Bank may not have exercised its
rights upon default under any such other agreement, instrument or paper).


 


(v)           Any
act by, against, or relating to the Borrower, or its property or assets, which
act constitutes the application for, consent to, or sufferance of the
appointment of a receiver, trustee or other person, pursuant to court action or
otherwise, over all, or any material part of the Borrower’s property.


 


(vi)          The
granting of any trust mortgage or execution of an assignment for the benefit of
the creditors of the Borrower, or the occurrence of any other voluntary or
involuntary liquidation or extension of debt agreement for the Borrower; the
failure by the Borrower to generally pay the debts of the Borrower as they
mature; adjudication of bankruptcy or insolvency relative to the Borrower; the
entry of an order for relief or similar order with respect to the Borrower in
any proceeding pursuant to Title 11 of the United States Code entitled “Bankruptcy”
(the “Bankruptcy Code”) or any other federal
bankruptcy law; the filing of any complaint, application, or petition by or
against the Borrower initiating any 


 


5

















 


matter in which the Borrower is or may be
granted any relief from the debts of the Borrower pursuant to the Bankruptcy
Code or any other insolvency statute or procedure; the calling or sufferance of
a meeting of creditors of the Borrower; the meeting by the Borrower of a formal
or informal creditor’s committee; the offering by or entering into by the
Borrower of any composition, extension or any other arrangement seeking relief
or extension for the debts of the Borrower, or the initiation of any other
judicial or non-judicial proceeding or agreement by, against or including the
Borrower which seeks or intends to accomplish a reorganization or arrangement
with creditors.


 


(vii)         The
service of any process upon Bank seeking to attach by trustee process any funds
of the Borrower on deposit with Bank.


 


(viii)        The
termination of existence, dissolution, or liquidation of the Borrower or the
ceasing to carry on actively any substantial part of the Borrower’s current
business.


 


(ix)           This
Agreement shall, at any time after its execution and delivery and for any
reason, cease (A) to create a valid and perfected first priority security
interest in and to the Collateral; or (B) to be in full force and effect
or shall be declared null and void, or the validity or enforceability hereof
shall be contested by the Borrower or any guarantor of the Borrower denies it
has any further liability or obligation hereunder.


 


Upon the occurrence
of an Event of Default, Bank may declare any obligation Bank may have hereunder
to be cancelled, declare all Obligations of Borrower to be due and payable and
proceed to enforce payment of the Obligations and to exercise any and all of
the rights and remedies afforded to Bank by the Uniform Commercial Code or
under the terms of this Agreement or otherwise. 
Upon the occurrence of, and during the continuance of, an Event of
Default, the Borrower, as additional compensation to the Bank for its increased
credit risk, promises to pay interest on all Obligations (including, without
limitation, principal, whether or not past due, past due interest and any other
amounts past due under this Agreement) at a per annum rate of two (2%) percent
greater than the rate of interest then specified in the Revolving Credit Note.


 


11.           WAIVER OF JURY TRIAL. BORROWER AND BANK
EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE
OR HEREAFTER HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. Borrower hereby
certifies that neither Bank nor any of its representatives, agents or counsel
has represented, expressly or otherwise, that Bank would not, in the event of
any such suit, action or proceeding, seek to enforce this waiver of right to
trial by jury. Borrower acknowledges that Bank has been induced to enter into
this Agreement by, among other things, this waiver. Borrower acknowledges that
it has read the provisions of this Agreement and in particular, this section;
has consulted legal counsel; understands the right it is granting in this
Agreement and is waiving in this section in particular; and makes the above
waiver knowingly, voluntarily and intentionally.


 


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12.           CONSENT TO JURISDICTION. Borrower and Bank
agree that any action or  proceeding to
enforce or arising out of this Agreement may be commenced in any court of the
Commonwealth of Massachusetts sitting in the county of Suffolk, or in the District
Court of the United States for the District of Massachusetts, and Borrower
waives personal service of process and agrees that a summons and complaint
commencing an action or proceeding in any such court shall be properly served
and confer personal jurisdiction if served by registered or certified mail to
Borrower, or as otherwise provided by the laws of the Commonwealth of
Massachusetts or the United States of America.


 


13.           TERMINATION. This Agreement may be
terminated at any time by either party giving written notice of termination to
the other party; provided, however, that unless and until all loans made by the
Bank to the Borrower hereunder and all other Obligations or commitments of the
Bank under which an Obligation could arise, outstanding as of the time of giving
or receipt as the case may be, of such notice by the Bank have been paid in
full, such termination shall in no way affect the security interest or other
rights and powers herein granted to the Bank, and until such payment in full
the security interest of the Bank in the Collateral of the Borrower, whether
existing as of the time of such termination or thereafter arising, and all
rights and powers herein granted to the Bank in respect thereof shall remain in
full force and effect. Until all of the Obligations of Borrower to Bank have
been fully paid and satisfied and all commitments of the Bank under which an
Obligation could arise have expired, Borrower shall fully comply with the terms
and conditions of this Agreement as herein provided. Prior to such payment in
full of all of the Obligations of Borrower to Bank, this Agreement shall be a
continuing agreement in every respect.


 


14.                                 MISCELLANEOUS.


 


(a)               No delay or omission on the part
of Bank in exercising any rights shall operate as a waiver of such right or any
other right. Waiver on any one occasion shall not be construed as a bar to or
waiver of any right or remedy on any future occasion. All Bank’s rights and
remedies, whether evidenced hereby or by any other agreement, instrument or
paper, shall be cumulative and may be exercised singularly or concurrently.


 


(b)              Bank is authorized to make loans
under the terms of this Agreement upon the request, either written or oral, in
the name of Borrower or any authorized person whose name appears at the end of
this Agreement or of any of the following named person, or persons, from time
to time, holding the following offices of Borrower: President, Treasurer, Chief
Financial Officer and such other officers and authorized signatories as may
from time to time be set forth in separate banking and borrowing resolutions.


 


(c)               This Agreement shall bind and
inure to the benefit of the respective successors and assigns of each of the
parties hereto; provided, however, that Borrower may not assign this
Agreement or any rights or duties hereunder without Bank’s prior written
consent and any prohibited assignment shall be absolutely void. No consent to
an assignment by Bank shall release Borrower from its Obligations. Upon no less
than 5 Business Days’ prior written notice to Borrower and with the consent of
Borrower, Bank may assign this Agreement and its rights and duties hereunder
unless an Event of Default shall have occurred and be continuing, in which
case, no consent or approval by Borrower is required in connection with any
such assignment. Bank reserves the right to sell, assign, transfer, negotiate
or grant participations in all or any part 


 


7





















 


of, or any interest
in Bank’s rights and benefits hereunder. In connection with any assignment or
participation, Bank may disclose all documents and information which Bank now
or hereafter may have relating to Borrower or Borrower’s business, provided
that such potential assignee or participant, as the case may be, has signed a
confidentiality agreement, the terms of which shall be substantially the same
as those set forth herein. To the extent that Bank assigns its rights and
obligations hereunder to another party, Bank thereafter shall be released from
such assigned obligations upon delivery to Borrower of an assignment agreement
in form and substance reasonably satisfactory to Borrower and signed by Bank,
assignee and Borrower (unless not required as set forth above).


 


(d)              Subject to compliance with the
terms set forth herein for requesting and making of loans, Borrower agrees that
any and all loans made by Bank to Borrower or for its account under this
Agreement shall be conclusively deemed to have been authorized by Borrower and
to have been made pursuant to duly authorized requests therefore on its behalf.


 


(e)               Bank shall not, during or after the term of this
Agreement, without Borrower’s prior written approval (obtained in each
instance), disclose or otherwise make available to any other person, lender,
firm, corporation or entity any non-public information, whether acquired before
or during the continuance of this Agreement, relating to Borrower’s financial
condition, business or prospects.


 


(f)               Unless otherwise defined in this
Agreement, capitalized words shall have the meanings set forth in the Uniform
Commercial Code as in effect in the Commonwealth of Massachusetts as of the
date of this Agreement.


 


(g)              Paragraph and section headings
used in this Agreement are for convenience only, and shall not effect the
construction of this Agreement. If one or more provisions of this Agreement (or
the application thereof) shall be invalid, illegal or unenforceable in any
respect in any jurisdiction, the same shall not, invalidate or render illegal
or unenforceable such provision (or its application) in any other jurisdiction
or any other provision of this Agreement (or its application). This Agreement
is the entire agreement of the parties with respect to the subject matter
hereof and supersedes any prior written or verbal communications or instruments
relating thereto. Unless otherwise provided in this Agreement, all notices or
demands by any party


 


(h)              Unless otherwise provided in this
Agreement, all notices or demands by any party relating to this Agreement or
any other loan document shall be in writing and (except for financial
statements and other informational documents which may be sent by first-class
mail, postage prepaid) shall be personally delivered or sent by registered or
certified mail (postage


 


prepaid, return
receipt requested), overnight courier, or telefacsimile to Borrower or to Bank,
as the case may be, at its address set forth below:


 


	
  If to Bank:

  	
   

  	
  RBS Citizens, National Association

  
	
   

  	
   

  	
  28 State Street MS1465

  
	
   

  	
   

  	
  Boston, MA 02109

  
	
   

  	
   

  	
  Attn: Scott Haskell, Senior Vice President

  
	
   

  	
   

  	
  Telephone: (617) 994-7129

  
	
   

  	
   

  	
  Telecopier: (617) 742-9548

  



 


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  With a Copy to:

  	
   

  	
  Eckert Seamans Cherin & Mellott,
  LLC

  
	
   

  	
   

  	
  One International Place

  
	
   

  	
   

  	
  Boston, MA 02110

  
	
   

  	
   

  	
  Attn: Todd H. Whilton, Esquire

  
	
   

  	
   

  	
  Telephone: (617) 342-6800

  
	
   

  	
   

  	
  Telecopier: (617) 642- 6899

  
	
   

  	
   

  	
   

  
	
  If to Borrower:

  	
   

  	
  CUBIST Pharmaceuticals, Inc.

  
	
   

  	
   

  	
  65 Hayden Avenue

  
	
   

  	
   

  	
  Lexington, Massachusetts 02421

  
	
   

  	
   

  	
  Attn: Chief Financial Officer

  
	
   

  	
   

  	
  Telephone: (781) 860-8660

  
	
   

  	
   

  	
  Telecopier: (781) 860-1426

  
	
   

  	
   

  	
   

  
	
  With a Copy to:

  	
   

  	
  CUBIST Pharmaceuticals, Inc.

  
	
   

  	
   

  	
  65 Hayden Avenue

  
	
   

  	
   

  	
  Lexington, Massachusetts 02421

  
	
   

  	
   

  	
  Attn.: General Counsel

  
	
   

  	
   

  	
  Telephone: (781) 860-8660

  
	
   

  	
   

  	
  Telecopier: (781) 860-1407

  



 


The parties hereto may change the address at
which they are to receive notices hereunder, by notice in writing in the
foregoing manner given to the other. All notices or demand sent in accordance
with this section shall be deemed received on the earlier of the date of actual
receipt or three (3) days after the deposit thereof in the mail.


 


(h)             Neither
this Agreement nor any uncertainty or ambiguity herein shall be construed or
resolved against Bank or Borrower, whether under any rule of construction
or otherwise. On the contrary, this Agreement has been reviewed by all parties
and shall be construed and interpreted according to the ordinary meaning of the
words used so as to fairly accomplish the purposes and intentions of all
parties hereto.


 


(i)              Each
provision of this Agreement shall be severable from every other provision of
this Agreement for the purpose of determining the legal enforceability of any
specific provision.


 


(j)              This
Agreement, together with the other documents and instruments executed  concurrently herewith represent the entire and final understanding of the
parties with respect to the transactions contemplated hereby and shall not be
contradicted or qualified by evidence of any prior, contemporaneous or
subsequent other agreement, oral or written, before the date hereof.


 


(k)                 This Agreement can only be amended
by a writing signed by both Bank and Borrower.


 


(l)                  The laws of Massachusetts
shall govern the construction of this Agreement and the rights and duties of
the parties hereto.


 


(m)                This Agreement shall take effect
as a sealed instrument.


 


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  Witnessed
  by:

  	
   

  	
  CUBIST
  PHARMACEUTICALS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  Benjamin S. Harshbarger

  	
   

  	
  By:

  	
  /s/ David
  W.J. McGirr

  
	
   

  	
   

  	
  Name:
  David W.J. McGirr

  
	
   

  	
   

  	
  Title:
  Senior Vice President, Finance and Chief

  Financial
  Officer

  
	
   

  	
   

  	
  Address:

  	
  65 Hayden
  Avenue

  
	
   

  	
   

  	
   

  	
  Lexington,
  MA 02421

  
	
   

  	
   

  	
   

  
	
  RBS
  CITIZENS, NATIONAL ASSOCIATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Scott
  Haskell

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Scott
  Haskell

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  	
   

  	
   

  
	
   

  	
  Address:

  	
  28 State
  Street, Boston, MA 02109

  	
   

  	
   

  
							



 


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EXHIBIT “A”


 


TO BE
COMPLETED IN CONNECTION WITH THE MAKING OF THE FIRST LOAN –


 


The
Collateral with either consist of a Certificate of Deposit issued by RBS
Citizens, National Association or a money market account held at  RBS Citizens, National Association.


 


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EXHIBIT “B”


 


AMENDMENT TO LOAN AND SECURITY AGREEMENT


 


Amendment to Loan
and Security Agreement dated
                                    
(the “Credit Agreement”) is by and between RBS Citizens, National
Association, with a usual place of business at 28 State Street,
Boston, Massachusetts 02109 (the “Bank”) and Cubist
Pharmaceuticals, Inc. having a usual place of business at 65 Hayden Avenue,
Lexington, Massachusetts 02421 (the “Borrower”).  Any capitalized term used herein that is not
otherwise defined herein shall have the meaning ascribed to such term in the
Credit Agreement.


 


NOW THEREFORE, in consideration of
One ($1.00) Dollar and other valuable consideration, the receipt and sufficiency
of which is herewith acknowledged, it is agreed that the Credit Agreement be
amended as follows:


 


1.             The
Credit Agreement is hereby amended by deleting Exhibit A in its entirety
and inserting the attached Exhibit A in lieu thereof.


 


2.             Borrower
hereby represents and warrants that, to its knowledge, Borrower has no
defenses, offsets, setoffs, claims or counterclaims to the payment of any
amount due under the Revolving Credit Note or the Credit Agreement as of the
date hereof and to the extent Borrower has, to its knowledge, any such
defenses, setoffs, claims or counterclaims as of the date hereof, Borrower
irrevocably waives and releases the same. 
By signing below, the Borrower ratifies and affirms the terms of the
Credit Agreement (as amended hereby) and all other loan documents executed in
connection with the Credit Agreement and confirms and represents that each
remains in full force and effect and that no Event of Default has occurred
thereunder.


 


3.             Executed
as a sealed instrument as of the         
day of
                  ,
            .


 


	
  Witnessed
  by:

  	
   

  	
  CUBIST
  PHARMACEUTICALS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  RBS
  CITIZENS, NATIONAL ASSOCIATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Scott
  Haskell

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  	
   

  	
   

  



 


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