EXHIBIT 10.38


 


COMMERCIAL LEASE


 


	
  1.   PARTIES

  (fill in)

  	
   

  	
  58
  Charles Street Limited Partnership, A Massachusetts Limited Partnership, 

  c/o The Cambridge Company, 87 Blanchard Road, Cambridge, MA 02138

  LESSOR, which expression shall include its heirs, successors, and assigns where the context so
  admits, does hereby lease to Sontra
  Medical, Inc. 
                                   21
  Erie Street, Suite 22 Cambridge, MA 

  LESSEE, which expression shall include its successors, executors, administrators, and assigns where
  the context so admits, and the LESSEE hereby leases the following described
  premises:

  
	
   

  	
   

  	
   

  
	
  2.   PREMISES 

  (fill in and include if applicable, suite number, floor
  number, and square feet)

  	
   

  	
  7,602 square feet on the terrace level (as shown on Exhibit
  P) of the building known as of 58 Charles Street, Cambridge, MA and seven
  parking spaces, in the building parking lot.

   

   

  together with the right to
  use in common, with others entitled thereto, the hallways, stairways, and
  elevators, necessary for access to said leased premises and lavatories
  nearest thereto.

  
	
   

  	
   

  	
   

  
	
  3.   TERM

  (fill in)

  	
   

  	
  The term of this lease
  shall be for five years 

  commencing on September 1, 1998 and
  ending on July 31, 2003.

  
	
   

  	
   

  	
   

  
	
  4.   RENT

  (fill in)

  	
   

  	
  The LESSEE shall pay to
  the LESSOR rent at the rate of see
  Exhibit A dollars per year,
  payable in advance in monthly installments of                            .

  
	
   

  	
   

  	
   

  
	
  5.   SECURITY DEPOSIT

  (fill in)

  	
   

  	
  Upon the execution of this
  lease, the LESSEE shall pay to the LESSOR the amount of $31,675.00 dollars, which shall be held
  as a security for the LESSEE’s performance as herein provided and promptly
  refunded to the LESSEE at the end of this lease with accrued interest
  calculated at prevailing money market rates subject to the LESSEE’s
  satisfactory compliance with the conditions hereof.  The deposit will also be promptly returned to the LESSEE with
  appropriate interest, provided the LESSEE is in good standing, if this lease
  is terminated before the end of the term as per any section in this lease.

  
	
   

  	
   

  	
   

  
	
  6.   RENT ADJUSTMENT

   

   

   

  A.  TAX

  ESCALATION

  (fill in or delete)

  	
   

  	
  If in any tax year
  commencing with the fiscal year 1999
  the real estate taxes on the land and buildings, of which the leased premises
  are a part, are in excess of the amount of the real estate taxes thereon for
  the fiscal year 1998
  (hereinafter called the “Base Year”), LESSEE will pay to LESSOR as additional
  rent hereunder, when and as designated by notice in writing by LESSOR, 15.92 per cent of such excess that may
  occur in each year of the term of this lease or any extension or renewal
  thereof and proportionately for any part of a fiscal year.  If the LESSOR obtains an abatement of any
  such excess real estate tax, a proportionate share of such abatement, less
  the reasonable fees and costs incurred in obtaining the same, if any, shall
  be refunded to the LESSEE.

  



 

















 


	
  B.   OPERATING COST ESCALATION

  (fill in or delete)

  	
   

  	
  The LESSEE shall pay to
  the LESSOR as additional rent hereunder when and as designated by notice in
  writing by LESSOR, 15.92 per
  cent of any increase in operating expenses over those incurred during the
  calendar year 1998.  Operating expenses are defined for the
  purposes of this agreement as:

   

  1. All
  building operating expenses including electricity delivered to the premises
  for lights and outlets (which shall be a pro-rated share of the electricity
  used on the Terrace Level based on occupancy).  Tenant’s share shall be 61.55% of the Terrace electric bill.

   

  See Exhibit B. 

  This
  increase shall be prorated should this lease be in effect with respect to
  only a portion of any calendar year.

  
	
   

  	
   

  	
   

  
	
  7.   UTILITIES 

  	
   

  	
  The LESSOR agrees to
  furnish electricity, reasonably hot and cold water, and reasonable heat and
  air conditioning to the leased premises, the hallways, stairways, elevators,
  and lavatories during normal business hours on regular business days of the
  heating and air conditioning seasons of each year, to furnish elevator
  service and to light passageways and stairways during business hours, and to
  furnish such cleaning service as is customarily furnished in similar first
  class office buildings in Cambridge, all subject to interruption due to any
  accident, to the making of repairs, alterations, or improvements, to labor
  difficulties, to trouble in obtaining fuel electricity, service, or supplies
  from the sources from which they are usually obtained for said building, or
  to any cause beyond the LESSOR’s reasonable control.  Normal business hours are from 8 AM to 6
  PM, Monday through Friday.  After
  hours air conditioning will be billed at $35 per hour. 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LESSOR shall have no
  obligation to provide utilities or equipment other than the utilities and
  equipment within the premises as of the commencement date of this lease.  In the event LESSEE requires additional
  utilities or equipment, the installation and maintenance thereof shall be the
  LESSEE’s sole obligation, provided that such installation shall be subject to
  the written consent of the LESSOR. 

  
	
   

  	
   

  	
   

  
	
  8.   USE OF LEASED PREMISES

  (fill in)

  	
   

  	
  The LESSEE shall use the
  leased premises only for the purpose of 

  a business office and lab space for light
  manufacturing and research and development

  
	
   

  	
   

  	
   

  
	
  9.   COMPLIANCE

  	
   

  	
  The LESSEE acknowledges
  that no trade or occupation shall be conducted in the leased premises or use
  made thereof which will be unlawful, improper, noisy or offensive, or
  contrary to any law or any municipal bylaw or ordinance in force in the city
  or town in which the premises are situated.

  



 


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  10. FIRE INSURANCE 

  	
   

  	
  The LESSEE shall not
  permit any use of the leased premises which will make voidable any insurance
  on the property of which the leased premises are a part, or on the contents
  of said property or which shall be contrary to any law or regulation from
  time to time established by the New England Fire Insurance Rating Association
  or any similar body succeeding to its powers.  The LESSEE shall on demand reimburse the LESSOR, and all other
  tenants, all extra insurance premiums caused by the LESSEE’s use of the
  premises. 

  
	
   

  	
   

  	
   

  
	
  11. MAINTENANCE

   

   

  A.  LESSEE’S OBLIGATIONS

   

  	
   

  	
  The LESSEE agrees to
  maintain the leased premises in good condition, normal wear and tear and
  damage by fire and other casualty only excepted, unless such maintenance is
  required because of the LESSOR or those for who conduct the LESSOR is legally
  responsible, and whenever necessary, to replace plate glass and other glass
  therein, acknowledging that the lease premises are now in good order and the
  glass whole.  The LESSEE shall not
  permit the premises to be overloaded, damaged, stripped, or defaced, nor
  suffer any waste.  LESSEE shall obtain
  written consent of LESSOR before erecting any sign on the premises. 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  All
  LESSEE’s personal property, fixtures and equipment kept at the leased
  premises shall be at the sole risk and hazard of the LESSEE; provided,
  however, Lessor shall be responsible for casualties resulting from Lessor’s
  negligence or willful misconduct.  

  
	
   

  	
   

  	
   

  
	
  B.   LESSOR’S OBLIGATIONS 

  	
   

  	
  The LESSOR agrees to
  maintain the structure of the building of which the leased premises are a
  part in the same good sound condition as it is at the commencement of the
  term or as it may be put in during the term of this lease, reasonable wear
  and tear, damage by fire and other casualty only excepted, unless such
  maintenance is required because of the LESSEE or those for whose conduct the
  LESSEE is legally responsible.  LESSOR
  also agrees to maintain in good operating condition the plumbing, heating and
  air conditioning, and electrical systems serving the demised premises. 

  
	
   

  	
   

  	
   

  
	
  12. ALTERATIONS

  	
   

  	
  The LESSEE shall not make
  structural alterations or additions to the leased premises, but may make
  nonstructural alterations provided the LESSOR consents thereto in writing,
  which consent shall not be unreasonably withheld or delayed.  All such allowed alterations shall be at
  LESSEE’s expense and shall be in quality at least equal to the present
  construction.  LESSEE shall not permit
  any mechanics’ liens, or similar liens, to remain upon the leased premises
  for labor and material furnished to LESSEE or claimed to have been furnished
  to LESSEE in connection with work of any character performed or claimed to
  have been performed at the direction of LESSEE and shall cause any such lien
  to be released of record forthwith without cost to LESSOR.  Any alterations or improvements made by
  the LESSEE shall become the property of the LESSOR at the termination of
  occupancy as provided herein. 
  Notwithstanding the foregoing, LESSOR hereby consents to the
  installation by LESSEE, at LESSEE’S sole expense, of up to two (2) fume hoods
  provided such fume hoods are installed in compliance with all applicable
  laws, codes, and regulations.  LESSEE
  shall provide LESSOR a drawing identifying the locations of the fume hoods,
  and LESSEE shall utilize the existing exhaust ventillation stack which is
  connected to a building rooftop vent used by the former lab tenant.  LESSEE shall provide architectural
  drawings, equipment specifications, and copies of all City of Cambridge and
  state permits to LESSOR.

  
	
   

  	
   

  	
   

  
	
  13. ASSIGNMENT— SUBLEASING

  	
   

  	
  The LESSEE shall not
  assign or sublet the whole or any part of the leased premises without
  LESSOR’s prior written consent which consent shall not be unreasonably
  withheld.  Notwithstanding such
  consent, LESSEE shall remain liable to LESSOR for the payment of a rent and
  for the full performance of the covenants and conditions of this lease.  Notwithstanding the foregoing provisions
  of the Section 13.  LESSEE may upon
  written notice but without the consent of LESSOR, assign this lease or sublet
  all or a part of the leased premises to (i) an institutional lender by way of
  a leasehold mortgage as collateral security, (ii) subsidiary or other
  affiliate of LESSEE or (iii) a business entity of equal or greater net worth
  than LESSEE which acquires LESSEE through acquisition or merger.

  
	
   

  	
   

  	
   

  
	
  14. SUBORDINATION 

  	
   

  	
  This lease shall be
  subject and subordinate to any and all mortgages, deeds of trust and other
  instruments in the nature of a mortgage, now or at any time hereafter, a lien
  or liens on the property of which the leased premises are a part and the
  LESSEE shall, when requested, promptly execute and deliver such written
  instruments as shall be necessary to show the subordination of this lease to
  said mortgages, deeds of trust or other such instruments in the nature of a
  mortgage.  The LESSOR will obtain a
  non-disturbance agreement from such mortgagee, and provided the LESSEE
  maintains the lease in good standing, LESSEE will be entitled to quiet
  enjoyment and possession of the leased premises, in accordance with the provisions
  of the lease, notwithstanding any default by the LESSOR under its mortgage,
  deeds of trust or other such instruments in the nature of a mortgage. 

  



 


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  15. LESSOR’S ACCESS

  	
   

  	
  The LESSOR or agents of the
  LESSOR may, at reasonable times, enter to view the leased premises (provided
  such entry does not interfere with LESSEE’s normal business operations) and
  may remove placards and signs not approved and affixed as herein provided,
  and make repairs and alterations as LESSOR should elect to do and may show
  the leased premises to others, and at any time within six (6) months before
  the expiration of the term, may affix to any suitable part of the leased
  premises a notice for letting or selling the leased premises or property of
  which the leased premises are a part and keep the same so affixed without
  hindrance or molestation.

  
	
   

  	
   

  	
   

  
	
  16. INDEMNIFICATION AND
  LIABILITY

  (fill in)

  	
   

  	
  The LESSEE shall save the
  LESSOR harmless from all loss and damage occasioned by the use or escape of
  water or by the bursting of pipes, as well as from any claim or damage
  resulting from neglect in not removing snow and ice from the roof of the
  building or form the sidewalks bordering upon the premises so leased, or by
  any nuisance made or suffered on the leased premises, unless such loss is
  caused by the negligence or willful misconduct of the LESSOR its agents,
  servants, employees and/or contractors. 
  The removal of snow and ice from the sidewalks bordering upon the
  leased premises shall be LESSOR’s
  responsibility.

  
	
   

  	
   

  	
   

  
	
  17. LESSEE’S LIABILITY INSURANCE

  (fill in)

  	
   

  	
  The LESSEE shall maintain
  with respect to the leased premises and the property of which the leased
  premises are a part comprehensive public liability insurance in the amount of
  $2,000,000 with property damage
  insurance in limits of $1,000,000
  in responsible companies qualified to do business in Massachusetts and in
  good standing therein insuring the LESSOR as well as LESSEE against injury to
  persons or damage to property as provided. 
  The LESSEE shall deposit with the LESSOR certificates for such
  insurance at or prior to the commencement of the term, and thereafter within
  thirty (30) days prior to the expiration of any such policies.  All such insurance certificates shall
  provide that such policies shall not be canceled without at least ten (10)
  days prior written notice to each assured named therein.

  
	
   

  	
   

  	
   

  
	
  18. FIRE CASUALTY, EMINENT
  DOMAIN

  	
   

  	
  Should a substantial
  portion of the leased premises, or of the property of which they are a part,
  be substantially damaged by fire or other casualty, or be taken by eminent
  domain, the LESSOR may elect to terminate this lease.  When such fire, casualty, or taking
  renders more than one half of the leased premises substantially unsuitable
  for their intended use, a just and proportionate abatement of rent shall be
  made, and the LESSEE may elect to terminate this lease if:

  (a)  The LESSOR fails to give written notice
  within thirty (30) days of intention to restore leased premises, or

  (b) The LESSOR fails to restore the leased
  premises to a condition substantially suitable for their intended use within
  ninety (90) days of said fire, casualty or taking. 

  The LESSOR reserves, and
  the LESSEE grants to the LESSOR, all rights which the LESSEE may have for
  damages or injury to the leased premises for any taking by eminent domain,
  except for damage to the LESSEE’s fixtures, property or equipment.

  



 


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  19. DEFAULT AND BANKRUPTCY 

  	
   

  	
  In the event that: 

  (a) The LESSEE shall
  default in the payment of any installment of rent or other su herein
  specified and such default shall continue for ten (10) days after written
  notice thereof; or

  (b) The LESSEE shall
  default in the observance or performance of any other of the LESSEE’s
  covenants, agreements, or obligations hereunder and such default shall not be
  corrected within thirty (30) days or within a period of time in excess to
  remedy any default that could not be reasonably corrected within such a
  period so long as the LESSEE continuously and diligently attempts to remedy
  the default except for a financial default after written notice thereof; or 

  (c) The LESSEE shall be
  declared bankrupt or insolvent according to law, or, if any assignment shall
  be made of LESSEE’s property for the benefit of creditors, then the LESSOR
  shall have the right thereafter, while such default continues, to reenter and
  take complete possession of the leased premises, to declare the term of this
  lease ended, and remove the LESSEE’s effects, without prejudice to any
  remedies which might be otherwise used for arrears of rent or other
  default.  The LESSEE shall indemnify
  the LESSOR against all loss of rent and other payments which the LESSOR may
  incur by reason of such termination during the residue of the term.  If the LESSEE shall default, after
  reasonable notice thereof, in the observance or performance of any conditions
  or covenants on LESSEE’s part to be observed or performed under or by virtue
  of any of the provisions in any article of this lease, the LESSOR, without
  being under any obligation to do so and without thereby waiving such default,
  after five business days’ written notice to LESSEE, may remedy such default
  for the account and at the expense of the LESSEE.  If the LESSOR makes any expenditures or incurs any obligations
  for the payment of money in connection therewith, including but not limited
  to, reasonable attorney’s fees in instituting, prosecuting or defending any
  action or proceeding, such sums paid or obligations insured, with interest at
  the rate of BankBoston Prime +4%
  per cent per annum and costs, shall be paid to the LESSOR by the LESSEE as
  additional rent. 

  
	
   

  	
   

  	
   

  
	
  20. NOTICE

  (fill in)

  	
   

  	
  Any notice from the LESSOR
  to the LESSEE relating to the leased premises or to the occupancy thereof,
  shall be deemed duly served, to LESSEE if mailed to LESSEE registered or
  certified mail, return receipt requested, postage prepaid, addressed to the
  LESSEE, at Sontra Medical, Inc., 58 Charles Street, Cambridge, MA 02140.  Any notice from the LESSEE to the LESSOR
  relating to the leased premises or to the occupancy thereof, shall be deemed
  duly served, if mailed to the LESSOR by registered or certified mail, return
  receipt requested, postage prepaid, addressed to the LESSOR as the LESSOR may
  from time to time advise in writing. 
  All rent notices shall be paid and sent to the LESSOR at 87 Blanchard
  Road, Cambridge, MA 02138.

  
	
   

  	
   

  	
   

  
	
  21. SURRENDER

  	
   

  	
  The LESSEE shall at the
  expiration or other termination of this lease remove all LESSEE’s goods and
  effects from the leased premises, (including, without hereby limiting the
  generality of the foregoing, all signs and lettering affixed or painted by
  the LESSEE, either inside or outside the leased premises).  LESSEE shall deliver to the LESSOR the
  leased premises and all keys, locks thereto, and other fixtures connected
  therewith and all alterations and additions made to or upon the leased
  premises, in good condition, reasonable wear and tear, damage by fire or
  other casualty only excepted, unless such maintenance is required because of
  the LESSOR or those for who conduct the LESSOR is legally responsible.  In the event of the LESSEE’s failure to
  remove any of LESSEE’s property from the premises, LESSOR is hereby
  authorized, without liability to LESSEE for loss or damage thereto, and at
  the sole risk of LESSEE, to remove and store any of the property at LESSEE’s
  expense, or to retain same under LESSOR’s control or to sell at public or
  private sale, without notice any or all of the property not so removed and to
  apply the net proceeds of such sale to the payment of any sum due hereunder,
  or to destroy such property.

  
	
   

  	
   

  	
   

  
	
  22. QUIET ENJOYMENT

  	
   

  	
  So long as the LESSEE is
  in full compliance with the terms and conditions of this lease, LESSOR shall
  warrant and defend LESSEE in the quiet enjoyment and possession of the
  premises during the term against any and all claims made by, through or under
  LESSOR, subject to the terms of this lease.

  



 


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  23. ESTOPPEL

  	
   

  	
  LESSEE agrees, from time
  to time, within ten (10) days after request by LESSOR, to deliver to LESSOR
  or LESSOR’s designee an estoppel certificate stating that this LEASE is
  unmodified and in full force and effect (or if there have been modifications,
  that this lease is in full force and effect as modified and stating the
  modifications), the date to which rent and other charges have been paid, the
  unexpired term of this LEASE, whether there are any defaults or rent
  abatements or offsets claimed by LESSEE and such other matters pertaining to
  this LEASE as may be reasonably requested by LESSOR, it being intended that
  any such statement delivered pursuant to this subparagraph may be relied upon
  by any prospective purchaser of the fee or mortgage or assignee of any
  mortgage upon the fee of the premises or any other party and their respective
  successors and assigns.

  
	
   

  	
   

  	
   

  
	
  24. BROKERAGE

  (fill in or delete)

  	
   

  	
  The Brokers named herein:
  The Codman Co. and The Conrad Group warrant that they are duly licensed as
  such by the Commonwealth of Massachusetts, and join in this agreement and
  become a party hereto, insofar as any provisions of this agreement expressly
  apply to them, and to any amendments or modifications of such provisions to
  which they agree in writing.  LESSOR
  agrees to pay the above named Brokers upon the term commencement date &
  fee for professional services.

  
	
   

  	
   

  	
   

  
	
  25. OTHER PROVISIONS

  	
   

  	
   

  



 


1) Rent and parking payments are due on the first day of each
and every month.  Any rent payment made
more than five (5) days after the due date shall bear interest at BankBoston
Prime +4% as additional rent charged retroactively to the first of the month.


 


IN WITNESS WHEREOF, the said
parties hereunto set their hands and seals this 25 day of August,
1988 


 


	
  /s/ Sontra Medical, Inc.

  	
   

  	
   

  	
  [ILLEGIBLE]

  
	
  LESSEE

  	
   

  	
   

  	
  LESSOR

  
	
   

  	
   

  	
   

  	
  58
  Charles Street Limited Partnership

  
	
  /s/ Shawn E. Stovall

  	
   

  	
  BY:

  	
  The
  Cambridge Company, Inc.

  
	
  General Manager

  	
   

  	
   

  	
  Its
  General Partner

  
	
   

  	
   

  	
   

  	
  Robert
  Lee Wolff, Jr., President

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Kevin Sullivan, V.P.

  	
   

  	
   

  	
  /s/ Frank E. Wheatly III

  
	
  THE CONRAD GROUP

  	
   

  	
   

  	
  THE CODMAN CO.

  



 


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Exhibit A 


 


	
  

  Term

  	
   

  	
  Base

  Rent

  	
   

  	
  

  Parking

  	
   

  	
  Operating Expenses

  and Real Estate Tax

  
	
  Year 1

  	
   

  	
  $

  	
  182,448.00

  	
   

  	
  $

  	
  9,240.00

  	
   

  	
  Included in Base Rent

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Year 2 — Year 5

  	
   

  	
  $

  	
  190,050.00

  	
   

  	
  $

  	
  9,240.00

  	
   

  	
  15.92% of increase over
  1998 (If applicable)

  



 


 

















 


Exhibit C


 


Holding Over Tenant shall
pay to Landlord two hundred percent (200%) of the total of the rents and other
charges herein then applicable for each month or any part thereof during which
Tenant, without Landlord’s prior written consent, shall retain possession of
the premises or any part thereof after the termination of this Lease, whether
by lapse of time or otherwise, and shall also pay to Landlord the amount of all
damages sustained by Landlord on account thereof, provided, however, that
neither the foregoing nor any other term or provision of this Lease shall be
deemed to permit Tenant to retain possession of the premises or hold over in
the premises after the expiration or earlier termination of the Lease term.


 

















 


 


[GROUND
FLOOR PLAN]