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Infraredx Inc – IPO: ‘S-1’ on 12/22/14 – EX-10.1

On:  Monday, 12/22/14, at 5:27pm ET   ·   Accession #:  1193125-14-450891   ·   File #:  333-201212

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

12/22/14  Infraredx Inc                     S-1                   17:5.2M                                   RR Donnelley/FA

Document/Exhibit                   Description                      Pages   Size 

 1: S-1         Registration Statement (General Form)               HTML   1.34M 
 2: EX-3.1      Articles of Incorporation/Organization or By-Laws   HTML    103K 
 3: EX-3.3      Articles of Incorporation/Organization or By-Laws   HTML     78K 
 4: EX-4.2      Instrument Defining the Rights of Security Holders  HTML    186K 
 5: EX-10.1     Material Contract                                   HTML    227K 
11: EX-10.10    Material Contract                                   HTML     61K 
12: EX-10.11    Material Contract                                   HTML     18K 
13: EX-10.12    Material Contract                                   HTML     57K 
14: EX-10.14    Material Contract                                   HTML    309K 
 6: EX-10.2     Material Contract                                   HTML     50K 
 7: EX-10.6     Material Contract                                   HTML     74K 
 8: EX-10.7     Material Contract                                   HTML     25K 
 9: EX-10.8     Material Contract                                   HTML     32K 
10: EX-10.9     Material Contract                                   HTML     30K 
15: EX-16.1     Letter re: Change in Certifying Accountant          HTML      7K 
16: EX-23.1     Consent of Experts or Counsel                       HTML      7K 
17: EX-23.2     Consent of Experts or Counsel                       HTML      7K 

Exhibit 10.1

NORTHWEST PARK

LEASE

BY AND BETWEEN

THE TRUSTEES OF N.W. BUILDING 18 TRUST

(AS LANDLORD)

AND

INFRAREDX, INC.

(AS TENANT)

FOR PREMISES

AT

34 THIRD AVENUE

BURLINGTON, MASSACHUSETTS

TABLE OF CONTENTS

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NORTHWEST PARK

L E A S E

ARTICLE 1

Reference Data

Each reference in this Lease to any of the following subjects shall be construed to incorporate the data stated for that subject in this Section 1.1.

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The Exhibits listed below in this section are incorporated in this Lease by reference and are to be construed as a part of this Lease.

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ARTICLE 2

Premises and Term

At no additional charge during the term, Tenant shall be permitted to use up to 59 parking spaces in the parking area serving the Building.

Landlord reserves the right from time to time, following prior notice to Tenant and without unreasonable interference with use of the Premises: (a) to install, use, maintain, repair, replace and relocate for service to the Premises and other parts of the Building, or either, pipes, ducts, conduits, wires and appurtenant fixtures within the walls or floors (as applicable) or above the drop ceiling tiles, wherever located in the Premises or Building, (b) to alter or relocate any other common facility, (c) to make any repairs and replacements to the Premises which Landlord may reasonably deem necessary, and (d) in connection with any excavation made upon adjacent land of Landlord or others, to enter, and to license others to enter, upon the Premises to do such work as the person causing such excavation deems necessary to preserve the wall of the Building from injury or damage and to support the same.

The term “lease year” as used herein shall mean a period of twelve (12) consecutive full calendar months. The first lease year shall begin on the Commencement Date if the Commencement Date is the first day of a calendar month; if not, then the first lease year shall commence upon the first day of the calendar month next following the Commencement Date. Each succeeding lease year shall commence upon the anniversary date of the first lease year.

If Tenant exercises the aforesaid option, then not later than eleven (11) months prior to the expiration of the original term of this Lease Landlord shalt give written notice to Tenant of Landlord’s designation of the market rate. Within fifteen (15) days following Landlord’s notice, Tenant shall either propose its designation of the market rate by giving notice thereof to Landlord or shall accept Landlord’s designation. Failure on the part of Tenant to give such notice of its designation shall bind Tenant to Landlord’s designation. If Tenant proposes its designation of the market rate, then Landlord and Tenant shall attempt to agree upon a market rate. If the parties have been unable to reach agreement within thirty (30) days following Tenant’s designation, then the market rate may be submitted to arbitration by either party as follows: market rate shall be determined by impartial arbitrators, one to be chosen by the Landlord, one to be chosen by Tenant, and a third to be selected, if necessary, as below provided. The unanimous written decision of the two first chosen, without selection and participation of a third arbitrator, or otherwise, the written decision of a majority of three arbitrators chosen and selected as aforesaid, shall be conclusive and binding upon Landlord and Tenant. Landlord and Tenant shall each notify the other of its chosen arbitrator within ten (10) days following the call for arbitration and, unless such two arbitrators shall have reached a unanimous decision within thirty (30) days after their designation, they shall so notify the then President of the Boston Bar Association and request him to select an impartial third arbitrator, who shall be another office building owner, a real estate counselor or a broker dealing with like types of properties, to determine

6

market rate as herein defined. Such third arbitrator and the first two chosen shall hear the parties and their evidence and render their decision within thirty (30) days following the conclusion of such hearing and notify Landlord and Tenant thereof. Landlord and Tenant shall share equally the expense of the third arbitrator (if any). If the dispute between the parties as to a market rate has not been resolved before the commencement of Tenant’s obligation to pay Fixed Rent based upon such market rate, then Tenant shall pay Fixed Rent under the Lease based upon the market rate designated by Landlord until either the agreement of the parties as to the market rate, or the decision of the arbitrators, as the case may be, at which time Tenant shall pay any underpayment of Fixed Rent to Landlord, or Landlord shall refund any overpayment of Fixed Rent to Tenant.

In any event, the Annual Fixed Rent Rate for the extended term shall not be less than the Annual Fixed Rent Rate in effect immediately prior to such extended term.

ARTICLE 3

Condition of Premises

The Premises are leased to Tenant in broom clean, as-is condition, without any representations and warranties by Landlord as to the condition of the Premises or their suitability for Tenant’s use and occupancy, and without any obligation on the part of Landlord to construct or perform any improvements for Tenant, except that Landlord shall, at its expense resurface the remaining unfinished portion of the Premises’ floor with VCT tile. In addition, Landlord shall, at its expense, renovate the Building exterior as described in Exhibit C attached hereto.

ARTICLE 4

Rent

If Landlord shall give notice to Tenant that all rent and other payments due hereunder are to be made to Landlord by electronic funds transfers, so called, or by similar means, Tenant shall make all such payments as shall be due after receipt of said notice by means of said electronic funds transfers (or such similar means as designated by Landlord).

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If, after Tenant shall have made reimbursement to Landlord pursuant to this subsection 4.2.1, Landlord shall receive a refund of any portion of Taxes paid by Tenant with respect to any Tax Year during the term hereof as a result of an abatement of such Taxes by legal proceedings, settlement or otherwise (without either party having any obligation to undertake any such proceedings), Landlord shall promptly pay to Tenant, or credit against the next accruing payments to be made by Tenant pursuant to this subsection 4.2.1, the Tenant’s Percentage of the refund (less the proportional, pro rata expenses, including attorneys’ fees and appraisers’ fees, incurred in connection with obtaining any such refund), as relates to Taxes paid by Tenant to Landlord with respect to any Tax Year for which such refund is obtained.

In the event this Lease shall commence, or shall end (by reason of expiration of the term or earlier termination pursuant to the provisions hereof), on any date other than the first or last day of the Tax Year, or should the Tax Year or period of assessment of real estate taxes be changed or be more or less than one (1) year, as the case may be, then the amount of Taxes which may be payable by Tenant as provided in this subsection 4.2.1 shall be appropriately apportioned and adjusted.

The term “Taxes” shall mean all taxes, assessments, betterments and other charges and impositions (including, but not limited to, fire protection service fees and similar charges) levied, assessed or imposed at any time during the term by any governmental authority upon or against the Property, or taxes in lieu thereof, and additional types of taxes to supplement real estate taxes due to legal limits imposed thereon. If, at any time during the term of this Lease, any tax or excise on rents or other taxes, however described, are levied or assessed against Landlord with respect to the rent reserved hereunder, either wholly or partially in substitution for, or in addition to, real estate taxes assessed or levied on the Property, such tax or excise on rents shall be included in Taxes; however, Taxes shall not include franchise, estate, inheritance, succession, capital levy, transfer, income or excess profits taxes assessed on Landlord. Taxes shall include any estimated payment made by Landlord on account of a fiscal tax period for which the actual and final amount of taxes for such period has not been determined by the governmental authority as of the date of any such estimated payment.

The term “Operating Costs” shall mean all costs and expenses incurred for the operation, cleaning, maintenance, repair and upkeep of the Property, and the portion of such costs and expenses with regard to the common areas, facilities and amenities of the Park which is equitably allocable to the Property, including, without limitation, all costs of maintaining and repairing the Property and the Park (including snow removal, landscaping and grounds maintenance, operation and maintenance of parking lots, sidewalks, walking paths, access roads and driveways, security, operation and repair of heating and air-conditioning equipment, elevators, lighting and any other Building equipment or systems) and of all repairs and replacements (other than repairs or replacements for which Landlord has received full reimbursement from contractors, other tenants of the Building or from others) necessary to keep the Property and the Park in good working order, repair,

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appearance and condition; all costs, including material and equipment costs, for cleaning and janitorial services to the Building (including window cleaning of the Building); all costs of any reasonable insurance carried by Landlord relating to the Property; all costs related to provision of heat (including oil, electric, steam and/or gas), air-conditioning, and water (including sewer charges) and other utilities to the Building (exclusive of reimbursement to Landlord for any of same received as a result of direct billing to any tenant of the Building); payments under all service contracts relating to the foregoing; all compensation, fringe benefits, payroll taxes and workmen’s compensation insurance premiums related thereto with respect to any employees of Landlord or its affiliates engaged in security and maintenance of the Property and the Park; reasonable attorneys’ fees and disbursements (exclusive of any such fees and disbursements incurred in tax abatement proceedings or the preparation of leases) and auditing and other professional fees and expenses; and a management fee.

There shall not be included in such Operating Costs brokerage fees or other costs associated with Landlord leasing additional property within the Park (including rental fees) related to the operation of the Building; interest and depreciation charges incurred on the Property; or expenditures made by Tenant with respect to (i) cleaning, maintenance and upkeep of the Premises, and (ii) the provision of electricity to the Premises.

lf, during the term of this Lease, Landlord shall replace any capital items or make any capital expenditures (collectively called “capital expenditures”) such cost shall be included in Operating Costs for each calendar year in which and after such capital expenditure is made the annual charge-off of such capital expenditure. (Annual charge-off shall be determined by (i) dividing the original cost of the capital expenditure by the number of years of useful life thereof [The useful life shall be reasonably determined by Landlord in accordance with generally accepted accounting principles and practices in effect at the time of acquisition of the capital item.); and (ii) adding to such quotient an interest factor computed on the unamortized balance of such capital expenditure based upon an interest rate reasonably determined by Landlord as being the interest rate then being charged for long-term mortgages by institutional lenders on like properties within the locality in which the Building is located.) Provided, further, that if Landlord reasonably concludes on the basis of engineering estimates that a particular capital expenditure will effect savings in Operating Costs and that such annual projected savings will exceed the annual charge-off of capital expenditure computed as aforesaid, then and in such events, the annual charge-off shall be determined by dividing the amount of such capital expenditure by the number of years over which the projected amount of such savings shall fully amortize the cost of such capital item or the amount of such capital expenditure; and by adding the interest factor, as aforesaid.

If during any portion of any year for which Operating Costs are being computed, the Building was not fully occupied by tenants or if not all of such tenants were paying fixed rent or if Landlord was not supplying all tenants with the services, amenities or benefits being supplied hereunder, actual Operating Costs incurred shall be reasonably extrapolated by Landlord to the estimated Operating Costs that would have been incurred if the Building were fully occupied by tenants and all such tenants were then paying fixed rent or if such services were being supplied to all tenants, and such extrapolated amount shall, for the purposes of this Section 4.23, be deemed to be the Operating Costs for such year.

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10

ARTICLE 5

Landlord’s Covenants

11

ARTICLE 6

Tenant’s Additional Covenants

12

13

14

15

ARTICLE 7

Casualty or Taking

16

ARTICLE 8

Defaults

17

ARTICLE 9

Rights of Mortgage Holders

ARTICLE 10

Miscellaneous Provisions

18

19

WITNESS the execution hereof under seal on the day and year first above written:

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EXHIBIT A

PLAN SHOWING THE PREMISES

EXHIBIT B

RULES AND REGULATIONS

21

EXHIBIT C

DESCRIPTION OF BUILDING EXTERIOR WORK

The scope of the building exterior work will be the renovation of the building facade fronting Third Avenue generally in accordance with the architectural rendering depicted below.

EXHIBIT D

TENANT ESTOPPEL CERTIFICATE

THIS IS TO CERTIFY THAT:

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EXECUTED UNDER SEAL AS OF             , 20    .

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EXHIBIT E

FORM OF LETTER OF CREDIT

GENTLEMEN:

We hereby establish our irrevocable letter of credit in your favor for account of the applicant up to an aggregate amount not to exceed             US Dollars ($            ) available by your draft(s) drawn on ourselves at sight accompanied by:

Your statement, signed by a purportedly authorized officer/official certifying that the Beneficiary is entitled to draw upon this Letter of Credit (in the amount of the draft submitted herewith) pursuant to Section 4.4 of the lease (the “Lease”) dated             ,             by and between             , as Landlord, and             , as Tenant, relating to the premises at             .

Draft(s) must indicate name and issuing bank and credit number and must be presented at this office.

You shall have the right to make partial draws against this Letter of Credit, from time to time.

Except as otherwise expressly stated herein, this Letter of Credit is subject to the “Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce, Publication No. 500 (1993 Revision).”

This Letter of Credit shall expire at our office on             ,             (the “Stated Expiration Date”). It is a condition of this Letter of Credit that the Stated Expiration Date shall be deemed automatically extended without amendment for successive one (1) year periods from such Stated Expiration Date, unless at least forty-five (45) days prior to such Stated Expiration Date) or any anniversary thereof) we shall notify the Beneficiary and the Accountee/Applicant in writing by registered mail (return receipt) that we elect not to consider this Letter of Credit extended for any such additional one (1) year period.

We engage with you that all drafts drawn under and in compliance with the terms of this letter of credit will be duly honored on presentation to us.

24

FIRST AMENDMENT OF LEASE

This Amendment is made and entered into this l6^th day of May, 2006 (the “Effective Date”) by and between the Trustees of N.W. Building 18 Trust (hereinafter referred to as “Landlord”) and InfraRedX, Inc. (hereinafter referred to as “Tenant”).

BACKGROUND

A. Landlord and Tenant entered into a lease dated August 1, 2005 (the “Lease”) for approximately 12,106 rentable square feet (the “Original Premises”) in the building known as 34 Third Avenue, Burlington, Massachusetts (the “Building”).

B. Tenant now desires to lease the balance of the Building consisting of an additional 14,341 rentable square feet as shown on Exhibit A-1 attached hereto (the “Additional Premises”), and Landlord has agreed to lease the Additional Premises to Tenant on the terms and conditions contained herein.

C. The parties also desire to extend the term of the Lease through June 30, 2009.

NOW THEREFORE, in consideration of the mutual agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows, as of the Effective Date.

1. Landlord hereby leases to Tenant, and Tenant leases from Landlord, the Additional Premises for a term commencing on the Effective Date and continuing through June 30, 2009, unless terminated earlier in accordance with the terms of the Lease. The demise of the Additional Premises shall be on all the same terms and conditions of the Lease, as amended hereby. In implementation of the foregoing, as of the Effective Date, the Premises specified in Section 1.1 of the Lease shall be increased to be the entire interior portion of Building, as shown on Exhibit A attached hereto, and the Rentable Floor Area of Premises specified in Section 1.1 shall be increased to 26,447 square feet by the inclusion of the Additional Premises. All references in the Lease to the “Premises” shall, as of the Effective Date, mean the Original Premises and the Additional Premises. All work which is necessary or desirable to prepare the Additional Premises for Tenant’s use and occupancy shall be performed by Tenant, at its sole expense, in accordance with the provisions of Section 6.2.5 of the Lease.

2. The Additional Premises will be delivered to Tenant broom-clean and in as-is condition, with the base building systems and equipment servicing the Additional Premises in good working order, and otherwise without any representation or warranty by Landlord as to the condition of the Additional Premises and without any obligation on the part of Landlord to construct or prepare the Additional Premises, except that Landlord shall, at its expense, install VCT flooring in the rear portion of the Additional Premises that is currently bare concrete. Such work shall be performed in good and workmanlike manner and in compliance with applicable building codes. The Landlord’s work shall be performed as soon as reasonably practicable after the full execution of this Amendment in a manner to minimize unreasonable interference with any work in the Additional Premises simultaneously being performed by Tenant, and the parties agree to reasonably cooperate to coordinate the scheduling and performance of each party’s work in the Additional Premises.

3. The term of the Lease with respect to the Original Premises is hereby extended to be coterminous with the term of the Additional Premises and shall expire on June 30, 2009. Accordingly, the Expiration Date stated in Section 1.1 of the Lease is hereby changed to June 30, 2009. Tenant acknowledges that the provisions of Section 4.4.2 require any Letter of Credit to remain in effect for at least 45 days after the Expiration Date and agrees to ensure that the final expiration date contained in any Letter of Credit is no earlier than August 15, 2009. Concurrently with Tenant’s execution of this Amendment, Tenant shall deliver to Landlord an appropriate amendment to the Letter of Credit evidencing the foregoing final expiration date.

4. Effective as of July 1, 2006 (the “Additional Premises Rent Commencement Date”), Tenant shall be obligated to pay Fixed Rent for the Additional Premises. Monthly payments shall be made at the same time and in the same manner that Tenant pays Fixed Rent for the Original Premises pursuant to Section 4.1 of the Lease. In implementation of the foregoing, the Annual Fixed Rent Rate and the Monthly Fixed Rent Rate stated in Section 1.1 of the Lease shall be increased as of the Additional Premises Rent Commencement Date by the addition of the Fixed Rent payable for the Additional Premises, in accordance with the following schedule:

5. Tenant shall be obligated to pay Operating Costs and Taxes for the Additional Premises in accordance with Sections 4.1.1 and 4.2.3 of the Lease commencing as of the earlier to occur of (i) the Additional Premises Rent Commencement Date, and (ii) Tenant’s use of the Additional Premises for the conduct of its business.

6. As a result of Tenant’s leasing the entire Building, certain changes must be made to the Lease to convert it from a multi-tenant format to single-tenant format. Accordingly, the Lease shall be amended as follows, as of the Effective Date:

2

7. In addition to Tenant’s obligations set forth in Section 6.1.9 of the Lease to restore the Premises at the end of the Lease term, Tenant shall be obligated at the expiration or earlier termination of the Lease to remove any installations or alterations made by Tenant to the Additional Premises that

3

are not customary for office and research and development space, and shall restore the Additional Premises to an open-office configuration as shown on Exhibit A-1, if requested by Landlord. In the event Tenant elects to reinstall the loading dock in the Additional Premises, Tenant will not be required to remove the same at the end of the Lease term.

8. As of the Effective Date, (i) Exhibit A attached hereto shall be substituted for Exhibit A attached to the Lease; (ii) Section 2.4 and Article 3 of the Lease shall have no further force or effect; and (iii) the term “Rent Commencement Date” specified in Section 1.1 shall have no applicability to nor force or effect with respect to the Additional Premises.

9. Tenant represents and warrants to Landlord that it has dealt with no broker in connection with the consummation of this Amendment, other than Nordblom Brokerage Company and The Staubach Company (collectively, the `Brokers”), and in the event of any brokerage claims, other than by the Brokers, against Landlord predicated upon prior dealings with Tenant, Tenant agrees to defend the same and indemnify and hold Landlord harmless against any such claim.

10. All undefined capitalized terms used herein without definition shall have the meanings ascribed to them in the Lease. The recitals set forth above are incorporated into this Amendment.

As amended hereby, the Lease is ratified and confirmed in all respects and shall continue in full force and effect.

Executed as a Massachusetts instrument under seal as of the date first set forth above.

4

EXHIBIT A

PREMISES

26,447 SF

5

EXHIBIT A-1

ADDITIONAL PREMISES

6

SECOND AMENDMENT OF LEASE

This Amendment is made and entered into this 30^th day of June, 2008 (the “Effective Date”) by and between the Trustees of N.W. Building 18 Trust (hereinafter referred to as “Landlord”) and InfraRedX, Inc. (hereinafter referred to as “Tenant”).

WITNESSETH:

WHEREAS, Landlord and Tenant entered into a lease dated August 1, 2005 as amended by the First Amendment of Lease dated May 16, 2006 (the “Lease”) for approximately 26,447 rentable square feet (the “Premises”) in the building known as 34 Third Avenue, Burlington, Massachusetts (the “Building”).

WHEREAS, Landlord and Tenant desire to modify a certain provision of the Lease.

NOW, THEREFORE, for valuable consideration, the Lease is hereby modified and amended as follows:

1. Section 2.3 shall be deleted and the following shall be substituted therefore:

“Provided that as of the date of the notice specified below, Tenant is not in default and has not previously been in default of its obligations under this Lease beyond any applicable grace period, Tenant shall have the right to extend the term of this Lease for one additional period of four (4) years, to begin immediately upon the expiration of the original term of this Lease (the “extended term”). All of the terms, covenants and provisions of this Lease shall apply to such extended term except that the Annual Fixed Rent Rate for such extension period shall be the market rate for comparable buildings in the Town of Burlington, Massachusetts at the commencement of such extended term, as designated by Landlord. If Tenant shall elect to exercise the aforesaid option, it shall do so by giving Landlord notice in writing of its intention to do so not later than nine (9) months prior to the expiration of the original term of this Lease. If Tenant gives such notice, the extension of this Lease shall be automatically effected without the execution of any additional documents. The original term and the extended term are hereinafter collectively called the “term”.

If Tenant exercises the aforesaid option, then not later than eight (8) months prior to the expiration of the original term of this Lease Landlord shall give written notice to Tenant of Landlord’s designation of the market rate. Within fifteen (15) days following Landlord’s notice, Tenant shall either propose its designation of the market rate by giving notice thereof to Landlord or shall accept Landlord’s designation. Failure on the part of Tenant to give such notice of its designation shall bind Tenant to Landlord’s designation. If Tenant proposes its designation of the market rate, then Landlord and Tenant shall attempt to agree upon a market rate. If the parties have been unable to reach agreement within thirty (30) days following Tenant’s designation, then the market rate may be submitted to arbitration by either party as follows: market rate shall be determined by

impartial arbitrators, one to be chosen by the Landlord, one to be chosen by Tenant, and a third to be selected, if necessary, as below provided. The unanimous written decision of the two first chosen, without selection and participation of a third arbitrator, or otherwise, the written decision of a majority of three arbitrators chosen and selected as aforesaid, shall be conclusive and binding upon Landlord and Tenant. Landlord and Tenant shall each notify the other of its chosen arbitrator within ten (10) clays following the call for arbitration and, unless such two arbitrators shall have reached a unanimous decision within thirty (30) days after their designation, they shall so notify the then ?resident of the Boston Bar Association and request him to select an impartial third arbitrator, who shall be another office building owner, a real estate counselor or a broker dealing with. like types of properties, to determine market rate as herein defined. Such third arbitrator and the first two chosen shall hear the parties and their evidence and render their decision within thirty (30) days following the conclusion of such hearing and notify Landlord and Tenant thereof. Landlord and Tenant shall share equally the expense of the third arbitrator (if any). If the dispute between the parties as to a market rate has not been resolved before the commencement of Tenant’s obligation to pay Fixed Rent based upon such market rate, then Tenant shall pay Fixed Rent under the Lease based upon the market rate designated by Landlord until either the agreement of the parties as to the market rate, or the decision of the arbitrators, as the case may be, at which time Tenant shall pay any underpayment of Fixed Rent to Landlord, or Landlord shall refund any overpayment of Fixed Rent to Tenant.

In any event, the Annual Fixed Rent Rate for the extended term shall not be less than the Annual Fixed Rent Rate in effect immediately prior to such extended term.”

INTENTIONALLY LEFT BLANK

As amended hereby, the Lease is ratified and confirmed in all respects and shall continue in full force and effect.

Executed as a Massachusetts instrument under seal as of the date first set forth above.

THIRD AMENDMENT OF LEASE

This Amendment is made and entered into this 2^nd day of October, 2008 (the “Effective Date”) by and between the Trustees of N.W. Building 18 Trust (hereinafter referred to as “Landlord”) and InfraReDx, Inc. (hereinafter referred to as “Tenant”).

WITNESSETH:

WHEREAS, Landlord and Tenant entered into a lease dated August 1, 2005 as amended by the First Amendment of Lease dated May 16, 2006, as amended by the Second Amendment of Lease dated June 30, 2008 (collectively the “Lease”) for approximately 26,447 rentable square feet (the “Premises”) in the building known as 34 Third Avenue, Burlington, Massachusetts (the `Building”).

NOW THEREFORE, for good and valuable consideration, the Lease is hereby amended as follows:

1. The term of the Lease is hereby extended for an additional period of three (3) years (the “Extended Term”). Accordingly, the definition of Expiration Date specified in Section 1.1 is changed to “June 30, 2012”.

2. Effective as of the commencement of the Extended Term, the Annual Fixed Rent Rate and Monthly Fixed Rent Rate specified in Section 1.1 shall be modified as follows:

3. Section 2.3 shall be deleted and the following shall be substituted therefore:

“Provided that as of the date of the notice specified below, Tenant is not in default and has not previously been in default of its obligations under this Lease beyond any applicable grace period, Tenant shall have the right to extend the term of this Lease for one additional period of one (1) year, to begin immediately upon the expiration of the original term of this Lease (the “Option Term”). All of the terms, covenants and provisions of this Lease shall apply to such Option Term except that the Annual Fixed Rent Rate for such extension period shall be the market rate for comparable buildings in the Town of Burlington, Massachusetts at the commencement of such Option Term, as designated by Landlord. If Tenant shall elect to exercise the aforesaid option, it shall do

so by giving Landlord notice in writing of its intention to do so not later than twelve (12) months prior to the expiration of the Extended Term of this Lease. If Tenant gives such notice, the extension of this Lease shall be automatically effected without the execution of any additional documents. The original term, the Extended Term and the Option Term are hereinafter collectively called the “term”.

If Tenant exercises the aforesaid option, then not later than eight (8) months prior to the expiration of the original term of this Lease Landlord shall give written notice to Tenant of Landlord’s designation of the market rate. Within fifteen (15) days following Landlord’s notice, Tenant shall either propose its designation of the market rate by giving notice thereof to Landlord or shall accept Landlord’s designation. Failure on the part of Tenant to give such notice of its designation shall bind Tenant to Landlord’s designation. If Tenant proposes its designation of the market rate, then Landlord and Tenant shall attempt to agree upon a market rate. If the parties have been unable to reach agreement within thirty (30) days following Tenant’s designation, then the market rate may be submitted to arbitration by either party as follows: market rate shall be determined by impartial arbitrators, one to be chosen by the Landlord, one to be chosen by Tenant, and a third to be selected, if necessary, as below provided. The unanimous written decision of the two first chosen, without selection and participation of a third arbitrator, or otherwise, the written decision of a majority of three arbitrators chosen and selected as aforesaid, shall be conclusive and binding upon Landlord and Tenant. Landlord and Tenant shall each notify the other of its chosen arbitrator within ten (10) days following the call for arbitration and, unless such two arbitrators shall have reached a unanimous decision within thirty (30) days after their designation, they shall so notify the then President of the Boston Bar Association and request him to select an impartial third arbitrator, who shall be another office building owner, a real estate counselor or a broker dealing with like types of properties, to determine market rate as herein defined. Such third arbitrator and the first two chosen shall hear the parties and their evidence and render their decision within thirty (30) days following the conclusion of such hearing and notify Landlord and Tenant thereof. Landlord and Tenant shall share equally the expense of the third arbitrator (if any). If the dispute between the parties as to a market rate has not been resolved before the commencement of Tenant’s obligation to pay Fixed Rent based upon such market rate, then Tenant shall pay Fixed Rent under the Lease based upon the market rate designated by Landlord until either the agreement of the parties as to the market rate, or the decision of the arbitrators, as the case may be, at which time Tenant shall pay any underpayment of Fixed Rent to Landlord, or Landlord shall refund any overpayment of Fixed Rent to Tenant.

In any event, the Annual Fixed Rent Rate for the Option Term shall not be less than the Annual Fixed Rent Rate in effect immediately prior to such Option Term.”

4. Prior to July 1, 2009, Landlord, at its cost, will install a new, 5-ton, HVAC system to service the offices on the south-west side of the building (from the President’s office to the reception area) and will also repair the floor drain in the ladies bathroom.

5. Capitalized terms used herein without definition shall have the meanings ascribed to them in the Lease.

As amended hereby, the Lease is ratified and confirmed in all respects, and shall continue in full force and effect.

Executed as a Massachusetts instrument under seal as of the date first set forth above.

FOURTH AMENDMENT OF LEASE

This Amendment is made and entered into this 6th day of August, 2012 (the “Effective Date”) by and between NWP Building 18 LLC, successor in interest to N.W. Building 18 Trust, (hereinafter referred to as “Landlord”) and InfraReDx, Inc. (hereinafter referred to as “Tenant”).

WITNESSETH:

WHEREAS, Landlord and Tenant entered into a lease dated August 1, 2005 as amended by the First Amendment of Lease dated May 16, 2006, as amended by the Second Amendment of Lease dated June 30, 2008, as amended by the Third Amendment of Lease dated October 2, 2008 and the notice of intent dated June 30, 2011 extending the lease until June 30, 2013 (collectively the “Lease”) for approximately 26,447 rentable square feet (the “Premises”) in the building known as 34 Third Avenue, Burlington, Massachusetts (the “Building”).

NOW THEREFORE, for good and valuable consideration, the Lease is hereby amended as follows:

1. The term of the Lease is hereby extended for an additional period of one (1) year and six (6) months (the “Extended Term”). Accordingly, the definition of Expiration Date specified in Section 1.1 is changed to “December 31, 2014”.

2. Effective as of the commencement of the Extended Term, the Annual Fixed Rent Rate and Monthly Fixed Rent Rate specified in Section 1.1 shall be modified as follows:

3. Section 2.3 is hereby deleted.

4. The Premises are leased to Tenant during the Extended Term in its then “as-is” condition.

5. Capitalized terms used herein without definition shall have the meanings ascribed to them in the Lease.

6. Tenant represents and warrants to Landlord that it has dealt with no broker in connection with the consummation of this Amendment, and in the event of any brokerage claims against Landlord predicated upon prior dealings with Tenant, Tenant agrees to defend the same and indemnify and hold Landlord harmless against any such claim.

As amended hereby, the Lease is ratified and confirmed in all respects, and shall continue in full force and effect.

Executed as a Massachusetts instrument under seal as of the date first set forth above.

FIFTH AMENDMENT OF LEASE

This Amendment is made and entered into this 24th day of February, 2014 (the “Effective Date”) by and between NWP Building 18 LLC, successor in interest to N.W. Building 18 Trust, (hereinafter referred to as “Landlord”) and InfraReDx, Inc. (hereinafter referred to as “Tenant”).

WITNESSETH:

WHEREAS, Landlord and Tenant entered into a lease dated August 1, 2005 as amended by the First Amendment of Lease dated May 16, 2006, as amended by the Second Amendment of Lease dated June 30, 2008, as amended by the Third Amendment of Lease dated October 2, 2008 and the notice of intent dated June 30, 2011 extending the lease until June 30, 2013, as amended by the Fourth Amendment of Lease dated August 6^th, 2012 (collectively the “Lease”) for approximately 26,447 rentable square feet (the “Premises”) in the building known as 34 Third Avenue, Burlington, Massachusetts (the “Building”).

NOW THEREFORE, for good and valuable consideration, the Lease is hereby amended as follows:

1. The term of the Lease is hereby extended for an additional period of one (1) year (the “Extended Term”). Accordingly, the definition of Expiration Date specified in Section 1.1 is changed to “December 31, 2015”.

2. Effective as of the commencement of the Extended Term, the Annual Fixed Rent Rate and Monthly Fixed Rent Rate specified in Section 1.1 shall be modified as follows:

3. Effective as of the commencement of the Extended Term, the second paragraph in Section 2.1 (regarding parking) shall be amended by deleting the paragraph and replacing it as follows:

“At no additional charge during the term, Tenant shall have the non-exclusive right to use all of the parking spaces in the parking area serving the building.”

4. The Premises are leased to Tenant during the Extended Term in its then “as-is” condition.

5. Capitalized terms used herein without definition shall have the meanings ascribed to them in the Lease.

6. Tenant represents and warrants to Landlord that it has dealt with no broker in connection with the consummation of this Amendment, and in the event of any brokerage claims against Landlord predicated upon prior dealings with Tenant, Tenant agrees to defend the same and indemnify and hold Landlord harmless against any such claim.

As amended hereby, the Lease is ratified and confirmed in all respects, and shall continue in full force and effect.

Executed as a Massachusetts instrument under seal as of the date first set forth above.

Memorandum

Hello,

Attached for your signatures are two original documents as referenced above.

We have been discussing extension options with this tenant, including an expansion into the Thoratec space at building 20. Terms ranged from 3 to 5 years.

The approval process necessary in order to enter the Japanese market is taking longer than expected. Therefore, they cannot commit to any significant term at the moment.

In the end, we agreed that a one-year extension is best for both parties at this point in time.

We will continue to talk about their space needs over the coming year as the overseas approval process evolves.

The Fixed Rent is $13 psf.

There is no TI, nor was there an outside broker on this deal.

Please sign where indicated and return them to me at your convenience.

Thank You

1

Memorandum

Hello,

Attached for your signatures are three (3), original, documents as referenced above.

This amendment serves to extend the tenant’s lease for one year, making the new expiration date December 31, 2016.

This extension is “as-is”, with no outside broker, and a net rental rate of $13.50psf.

Please sign where indicated and return to me at your convenience.

Thank You

1

SIXTH AMENDMENT OF LEASE

This Amendment is made and entered into this 10th day of November, 2014 (the “Effective Date”) by and between NWP Building 18 LLC, successor in interest to N.W. Building 18 Trust, (hereinafter referred to as “Landlord”) and InfraReDx, Inc. (hereinafter referred to as “Tenant”).

WITNESSETH:

WHEREAS, Landlord and Tenant entered into a lease dated August 1, 2005 as amended by the First Amendment of Lease dated May 16, 2006, as amended by the Second Amendment of Lease dated June 30, 2008, as amended by the Third Amendment of Lease dated October 2, 2008 and the notice of intent dated June 30, 2011 extending the lease until June 30, 2013, as amended by the Fourth Amendment of Lease dated August 6th, 2012, as amended by the Fifth Amendment of Lease dated February 24, 2014 (collectively the “Lease”) for approximately 26,447 rentable square feet (the “Premises”) in the building known as 34 Third Avenue, Burlington, Massachusetts (the “Building”).

NOW THEREFORE, for good and valuable consideration, the Lease is hereby amended as follows:

1. The term of the Lease is hereby extended for an additional period of one (1) year (the “Extended Term”). Accordingly, the definition of Expiration Date specified in Section 1.1 is changed to “December 31, 2016”.

2. Effective as of the commencement of the Extended Term, the Annual Fixed Rent Rate and Monthly Fixed Rent Rate specified in Section 1.1 shall be modified as follows:

3. The Premises are leased to Tenant during the Extended Term in its then “as-is” condition.

4. Capitalized terms used herein without definition shall have the meanings ascribed to them in the Lease.

5. Tenant represents and warrants to Landlord that it has dealt with no broker in connection with the consummation of this Amendment, and in the event of any brokerage claims against Landlord predicated upon prior dealings with Tenant, Tenant agrees to defend the same and indemnify and hold Landlord harmless against any such claim.

As amended hereby, the Lease is ratified and confirmed in all respects, and shall continue in full force and effect.

Executed as a Massachusetts instrument under seal as of the date first set forth above.

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Dates Referenced Herein

This ‘S-1’ Filing		Date		Other Filings
		12/31/16		None on these Dates
		1/1/16
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		12/31/14
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Filing Submission 0001193125-14-450891   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

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