Exhibit 10.1


 


FIRST AMENDMENT TO LEASE


 


This
First Amendment to Lease (“First Amendment”) is entered into this 24th day of February, 2010 (the “First Amendment
Effective Date”), by and between OCC, LLC, a Delaware LLC (“Landlord”) and
CardioNet, Inc., a Delaware Corporation (“Tenant”).


 


RECITALS


 


WHEREAS,
HI/OCC, Inc. and PDSHeart, Inc. executed a Lease Agreement in or
about September, 2006 (“Lease”) for certain premises at the building commonly
known as One Corporate Center I, 7401 Metro Boulevard, Edina, Minnesota, 55439
(“Building”);


 


WHEREAS,
Landlord is the successor-in-interest to HI/OCC, Inc.;


 


WHEREAS,
Tenant is the successor-in-interest to PDSHeart, Inc.;


 


WHEREAS,
Landlord and Tenant now desire to modify and supplement the Lease by extending
the Lease Term, expanding the Premises and modifying certain other terms of the
Lease;


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:


 


1.                                       Interpretation
of Amendment.  The Lease is
hereby modified and supplemented as of the First Amendment Effective Date.  Wherever there exists a conflict between this
First Amendment and the Lease, the provisions of this First Amendment shall
control.  Unless otherwise indicated, defined
terms shall have the definition set forth in the Lease.  Except as modified and supplemented herein,
the Lease is in full force and effect.


 


2.                                       Extension of
Lease Term. Landlord and Tenant agree to end the existing
Lease Term and commence a new Lease Term of approximately sixty (60) months
commencing on March 15, 2010 (the “First Amendment Commencement Date”) and
continuing through and including March 31, 2015 (the “First Amendment
Expiration Date”).  The period commencing
on the First Amendment Commencement Date and continuing through and including
the First Amendment Expiration Date is hereinafter referred to as the “New Term”.  If the New Premises is not ready for
occupancy by the First Amendment Commencement Date, in Landlord’s reasonable
determination, then the First Amendment Commencement Date shall be postponed
until the New Premises is ready for occupancy in Landlord’s reasonable
determination.


 


3.                                       Assignment of
Tenancy.  The parties acknowledge that
Tenant has succeeded PDSHeart, Inc. as tenant under the Lease.  Tenant agrees to be bound by all the
obligations ascribed to the tenant pursuant thereto.


 


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4.                                       New Premises.  Effective as of the First Amendment
Commencement Date, the Premises is hereby relocated that portion of the fourth
(4th) floor of the
Building commonly known as Suite 460, which is collectively deemed to
contain 2,035 rentable square feet (the “New Premises”).


 


5.                                       Basic Rent.  Basic Rent payable for the New Premises
throughout the New Term shall be as follows:


 


	
  Period

  	
   

  	
  Basic Rent

  Per RSF Per Year

  	
   

  	
  Basic Rent

  Per Year

  	
   

  	
  Basic Rent

  Per Month

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Months 1 – 4

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
  Months 5 – 12

  	
   

  	
  $

  	
  11.15

  	
   

  	
  22,690.25

  	
   

  	
  $

  	
  1,890.85

  	
   

  
	
  Months
  13 – 16

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
  Months
  17 – 24

  	
   

  	
  $

  	
  11.65

  	
   

  	
  $

  	
  23,707.75

  	
   

  	
  $

  	
  1,975.65

  	
   

  
	
  Months
  25 – 36

  	
   

  	
  $

  	
  12.15

  	
   

  	
  $

  	
  24,725.25

  	
   

  	
  $

  	
  2,060.44

  	
   

  
	
  Months
  37 – 48

  	
   

  	
  $

  	
  12.65

  	
   

  	
  $

  	
  25,742.75

  	
   

  	
  $

  	
  2,145.23

  	
   

  
	
  Months
  49 – 60

  	
   

  	
  $

  	
  13.15

  	
   

  	
  $

  	
  26,760.25

  	
   

  	
  $

  	
  2,230.02

  	
   

  



 


6.                                       Additional Rent.  Throughout the New Term, in
addition to Basic Rent, Tenant shall pay to Landlord, as Additional Rent, (i) an
amount equal to Tenant’s Proportionate Share of Operating Costs, as that term
is defined in the Lease (including all taxes), and (ii) all other amounts
owed to Landlord as Additional Rent under the Lease.  The 2010 estimate is $2.43/SF for real estate
taxes and $6.40/SF for operating expenses.


 


a.               Conversion to Net Lease.  Effective as of the First Amendment
Commencement Date, the parties desire to convert the Lease to a net lease, and therefore
to modify the Lease to reflect that the Basic Rent no longer includes any
amounts owed by Tenant as Additional Rent.


 


b.              Estimated Payments.  Within thirty (30) days after the end of each
calendar year, Landlord shall provide Tenant with an estimate of Tenant’s
monthly Additional Rent obligation for the upcoming calendar year.  Tenant shall pay such estimated Additional
Rent in addition to Tenant’s monthly Basic Rent payments.  Within one hundred twenty (120) days
following the close of each calendar year, Landlord shall provide Tenant with a
statement showing, in reasonable detail, all computations of Additional Rent
due under this Section.  If the statement
shows that the total of the monthly payments made by Tenant exceeds the amount
of Additional Rent due by Tenant under this Section, then the statement shall
be accompanies by a credit to Tenant’s account. 
If the statement shows that the total of the monthly payments made by
Tenant is less than the amount of Additional Rent due by Tenant under this
Section, then Tenant shall immediately pay to Landlord the amount shown on the
statement as owing to Landlord.


 


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c.               Controllable Costs.  Increases in Operating Costs shall not exceed
Five Percent (5%) for each year of the Lease for Controllable Costs (as defined
below), but there shall be no cap on Uncontrollable Costs.


 


i.                  “Uncontrollable Costs” is
defined to mean costs associated with water/sewer expenses, utility services,
taxes, insurance premiums, maintenance and repairs, cleaning of the Common
Areas, trash collection, landscaping, and snow removal.


 


ii.               “Controllable Costs” is
defined to mean all Operating Costs except Uncontrollable Costs.


 


7.                                       Tenant
Improvements.  Landlord
shall provide, at its expense using building standard materials, certain
improvements to the New Premises described by the plan(s)/bid(s) (the “Tenant
Improvements”).  Landlord shall retain
contractors of its choosing to construct the Tenant Improvements.  Landlord, its agents, contractors and
employees, shall have the ongoing, unfettered right to supervise and or manage
all Tenant Improvements constructed within the New Premises.  If Tenant elects to make changes to the
Tenant Improvements, then all such changes must be first approved in writing by
Landlord, and done pursuant to Section 8 of the Lease.  Tenant agrees that all additional planning
and/or construction costs arising from any such election will be Tenant’s sole
responsibility, and Tenant shall immediately pay (or reimburse to Landlord) all
such costs upon demand.  Tenant shall
cooperate with Landlord in obtaining lien waivers for the total amounts for all
work performed within the New Premises. 
Tenant acknowledges that all prior improvements, construction allowances
or other allowances to have been provided by Landlord under the Lease have been
provided in full.


 


8.                                       Option to
Terminate.  So long as
Tenant is not in default, Tenant shall have the one-time option to terminate
the Lease and this First Amendment after the forty-eighth (48th) month of the New
Term.  In the event Tenant elects to
exercise said option, Tenant agrees to provide to Landlord not less than six (6) months
prior written notice to Landlord and to concurrently pay a termination fee
equal to one (1) month of Tenant’s gross rent at the time notice is given
(includes both Basic Rent and Additional Rent). 
If Tenant is in default at the time notice is given, then such notice
will not be valid and this Option to Terminate will be of no further force or
effect.


 


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9.                                       Tenant’s
Proportionate Share.  The Lease
is hereby modified so that all references to “Tenant’s Proportionate Share” is
redefined to be a fraction, with the number of square feet of rentable area in
the New Premises as the numerator and the total number of square feet of
rentable area in the Building as the denominator.  Tenant’s Proportionate Share is currently
estimated to be 1.83% and may be recalculated from time to time by Landlord if
the number of square feet of rentable area in the Premises or Building changes,
including, without limitation, due to Landlord’s decision to combine the
Building’s operating budget with other buildings in the Complex.


 


10.                                 Existing
Furniture and IT Relocation.  Provided Tenant is not in default, Landlord
shall be responsible and shall bear the cost to relocate of all of Tenant’s
furniture from the Original Premises to the New Premises.  Landlord shall also be responsible for the
cost of installing comparable data and telephone lines into the New Premises.


 


11.                                 Confidentiality.  Tenant agrees to treat the terms and
conditions of the Lease or this First Amendment as the confidential,
proprietary information of Landlord. 
Tenant covenants not to disclose, release, distribute, discuss or
otherwise share this information with anyone except Tenant’s independent
accountants, attorneys and other professional advisors (who must agree to also
keep this information confidential), and otherwise only to the extent required
by any law or court order.  If Tenant
breaches this covenant, Landlord may seek equitable relief from any court of
competent jurisdiction, and may receive recovery for any monetary damages
suffered by Landlord as a result of Tenant’s breach.


 


12.                                 Options
Superseded.  All Tenant
options described in the Lease (including, but not limited to, Section 26
of the Lease) are superseded by this First Amendment and are of no further
force or effect.


 


13.                                 Notices.  The Basic Lease Information of the Lease is
hereby revised so that the Landlord’s and Tenant’s address for all notices
delivered pursuant to the Lease or this First Amendment shall be as follows:


 


	
  Landlord’s
  Address:

  	
  Tenant’s
  Address:

  
	
  OCC,
  LLC

  	
  CardioNet, Inc.

  
	
  c/o
  Hempel Properties

  	
  227
  Washington Street

  
	
  527
  Marquette Avenue

  	
  Conshohocken,
  PA 19428

  
	
  Minneapolis,
  MN 55402

  	
  Attn:
  Sr. VP of Operations with a copy to Legal

  
	
  Attn: Jon Hempel

  	
   

  



 


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14.                                 Brokers.  Tenant represents and warrants to Landlord
that it has not dealt with any broker in connection with this First Amendment
except for Cresa Partners.  Tenant hereby
indemnifies and holds Landlord harmless from any and all losses, liability,
costs or expenses (including attorney fees) incurred as a result of an alleged
breach of the foregoing warranty.  Tenant
warrants that all prior brokerage fees to have been paid under the Lease have
been paid in full.


 


15.                                 Entire
Agreement.  This First
Amendment sets forth the entire agreement with respect to the matters set forth
herein.  There have been no additional
oral or written representations or agreements. 
No modification, supplementation or amendment to the Lease or this First
Amendment shall be effective unless made by written agreement between Landlord
and Tenant.


 


16.                                 Counterparts.  This First Amendment may be executed in any
number of counterparts, any one of which shall be an original, but all of which
together shall be one and the same instrument.


 


17.                                 Choice of Law.  The Lease and this First Amendment shall be
governed by the laws of the State of Minnesota.


 


[signature
page follows]


 


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IN WITNESS WHEREOF, this
First Amendment is executed effective as of the First Amendment Effective Date.


 


 


	
  LANDLORD:

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
  OCC,
  LLC,

  	
   

  	
  CardioNet, Inc.,

  
	
   

  	
   

  	
   

  
	
  a
  Delaware limited liability company.

  	
   

  	
  a
  Delaware corporation.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Print:

  	
   

  	
   

  	
  Print:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Its:

  	
   

  	
   

  	
  Its:

  	
   

  



 


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