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