**Exhibit 10.1**

** **

**FIRST AMENDMENT TO LEASE**

 

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

 

**RECITALS**

 

WHEREAS,HI/OCC, Inc. and PDSHeart, Inc. executed a Lease Agreement in orabout September, 2006 (“Lease”) for certain premises at the building commonlyknown 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 extendingthe Lease Term, expanding the Premises and modifying certain other terms of theLease;

 

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

 

1.                                       Interpretationof Amendment.  The Lease ishereby modified and supplemented as of the First Amendment Effective Date.  Wherever there exists a conflict between thisFirst Amendment and the Lease, the provisions of this First Amendment shallcontrol.  Unless otherwise indicated, definedterms 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 ofLease Term. Landlord and Tenant agree to end the existingLease Term and commence a new Lease Term of approximately sixty (60) monthscommencing on March 15, 2010 (the “First Amendment Commencement Date”) andcontinuing through and including March 31, 2015 (the “First AmendmentExpiration Date”).  The period commencingon the First Amendment Commencement Date and continuing through and includingthe First Amendment Expiration Date is hereinafter referred to as the “New Term”.  If the New Premises is not ready foroccupancy by the First Amendment Commencement Date, in Landlord’s reasonabledetermination, then the First Amendment Commencement Date shall be postponeduntil the New Premises is ready for occupancy in Landlord’s reasonabledetermination.

 

3.                                       Assignment ofTenancy.  The parties acknowledge thatTenant has succeeded PDSHeart, Inc. as tenant under the Lease.  Tenant agrees to be bound by all theobligations ascribed to the tenant pursuant thereto.

 

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

 

5.                                       Basic Rent.  Basic Rent payable for the New Premisesthroughout 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, inaddition to Basic Rent, Tenant shall pay to Landlord, as Additional Rent, (i) anamount equal to Tenant’s Proportionate Share of Operating Costs, as that termis defined in the Lease (including all taxes), and (ii) all other amountsowed to Landlord as Additional Rent under the Lease.  The 2010 estimate is $2.43/SF for real estatetaxes and $6.40/SF for operating expenses.

 

a.               Conversion to Net Lease.  Effective as of the First AmendmentCommencement Date, the parties desire to convert the Lease to a net lease, and thereforeto modify the Lease to reflect that the Basic Rent no longer includes anyamounts owed by Tenant as Additional Rent.

 

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

 

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

 

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

 

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

 

7.                                       TenantImprovements.  Landlordshall provide, at its expense using building standard materials, certainimprovements to the New Premises described by the plan(s)/bid(s) (the “TenantImprovements”).  Landlord shall retaincontractors of its choosing to construct the Tenant Improvements.  Landlord, its agents, contractors andemployees, shall have the ongoing, unfettered right to supervise and or manageall Tenant Improvements constructed within the New Premises.  If Tenant elects to make changes to theTenant Improvements, then all such changes must be first approved in writing byLandlord, and done pursuant to Section 8 of the Lease.  Tenant agrees that all additional planningand/or construction costs arising from any such election will be Tenant’s soleresponsibility, and Tenant shall immediately pay (or reimburse to Landlord) allsuch costs upon demand.  Tenant shallcooperate with Landlord in obtaining lien waivers for the total amounts for allwork performed within the New Premises. Tenant acknowledges that all prior improvements, construction allowancesor other allowances to have been provided by Landlord under the Lease have beenprovided in full.

 

8.                                       Option toTerminate.  So long asTenant is not in default, Tenant shall have the one-time option to terminatethe Lease and this First Amendment after the forty-eighth (48th) month of the NewTerm.  In the event Tenant elects toexercise said option, Tenant agrees to provide to Landlord not less than six (6) monthsprior written notice to Landlord and to concurrently pay a termination feeequal 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 noticewill not be valid and this Option to Terminate will be of no further force oreffect.

 

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

 

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

 

11.                                 Confidentiality.  Tenant agrees to treat the terms andconditions of the Lease or this First Amendment as the confidential,proprietary information of Landlord. Tenant covenants not to disclose, release, distribute, discuss orotherwise share this information with anyone except Tenant’s independentaccountants, attorneys and other professional advisors (who must agree to alsokeep this information confidential), and otherwise only to the extent requiredby any law or court order.  If Tenantbreaches this covenant, Landlord may seek equitable relief from any court ofcompetent jurisdiction, and may receive recovery for any monetary damagessuffered by Landlord as a result of Tenant’s breach.

 

12.                                 OptionsSuperseded.  All Tenantoptions described in the Lease (including, but not limited to, Section 26of the Lease) are superseded by this First Amendment and are of no furtherforce or effect.

 

13.                                 Notices.  The Basic Lease Information of the Lease ishereby revised so that the Landlord’s and Tenant’s address for all noticesdelivered 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 Landlordthat it has not dealt with any broker in connection with this First Amendmentexcept for Cresa Partners.  Tenant herebyindemnifies and holds Landlord harmless from any and all losses, liability,costs or expenses (including attorney fees) incurred as a result of an allegedbreach of the foregoing warranty.  Tenantwarrants that all prior brokerage fees to have been paid under the Lease havebeen paid in full.

 

15.                                 EntireAgreement.  This FirstAmendment sets forth the entire agreement with respect to the matters set forthherein.  There have been no additionaloral or written representations or agreements. No modification, supplementation or amendment to the Lease or this FirstAmendment shall be effective unless made by written agreement between Landlordand Tenant.

 

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

 

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

 

*[signaturepage follows]*

 

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IN WITNESS WHEREOF, thisFirst 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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