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