Fourth Amendment to Lease, dated March 8, 2022, between GRE Riverworks, LLC and EyePoint Pharmaceuticals, Inc

Exhibit 10.28

FOURTH amendment to Lease

THIS FOURTH AMENDMENT TO LEASE (this “Amendment”) is made and entered into as of the ___8th__day of ____March____________, 2022 (the “Effective Date”), by and between GRE RIVERWORKS, LLC, a Delaware limited liability company (“Landlord”), and EYEPOINT PHARMACEUTICALS, INC., a Delaware corporation (“Tenant”).

RECITALS

A.Landlord’s predecessors-in-interest and Tenant entered into that certain Lease dated November 1, 2013 (the “Original Lease”), as amended by that certain First Amendment to Lease dated February 6, 2014 (the “First Amendment”), that certain Second Amendment to Lease dated May 14, 2018 (the “Second Amendment”), that certain Confirmation of Suite A-210 Effective Date dated November 29, 2018 (the “Confirmation”) and that certain Third Amendment to Lease dated April 5, 2021 (the “Third Amendment”; collectively with the Original Lease, the First Amendment, the Second Amendment and the Confirmation, the “Lease”), pursuant to which Tenant currently leases certain premises known as Suite A210 on the second floor containing approximately 7,999 rentable square feet (“Suite A210” and now includes and incorporates the suite formerly known as Suite B210 on the second floor containing approximately 1,409 rentable square feet) and Suite B300 on the third floor containing approximately 13,650 rentable square feet (“Suite B300”), all as shown on Amended Exhibit A which shall replace Exhibit A attached to the Lease in its entirety (together, the “Existing Premises”) in the building commonly known as the Riverworks Innovation Center located at 480 Pleasant Street, Watertown, Massachusetts (the “Building”).  

B.The Term is currently scheduled to expire on May 31, 2025 (“Prior Expiration Date”).

C.Landlord and Tenant desire to further expand the Existing Premises, extend the Term, and otherwise modify the Lease as set forth below.

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

1.Recitals.  The recitals set forth above are hereby incorporated into and made a material part of this Amendment.  Capitalized terms used but not otherwise defined herein shall have the same meanings ascribed to them in the Lease.

2.Second Expansion.   Effective as of the Second Expansion Premises Commencement Date (as hereinafter defined), the Existing Premises are hereby expanded to include Suite C400 on the fourth floor containing approximately 11,999 rentable square feet on the fourth floor of the Building as shown on Exhibit A-2 attached hereto and made a part hereof (“Second Expansion Premises”), which Exhibit A-2 shall be deemed part of and attached to the Original Lease.  The “Second Expansion Premises Commencement Date” or “SEPCD” shall mean the earliest to occur of (a) the date Tenant occupies the Second Expansion Premises or any portion thereof for the conduct of Tenant's business; or (b) the date Landlord Substantially Completes the Expansion Work (as these terms are defined in Exhibit B-1 attached hereto) in the Second Expansion Premises and tenders possession of the Second Expansion Premises to Tenant or (c) the date Landlord would have Substantially Completed the Expansion Work in the Second Expansion Premises and tendered possession to Tenant but for a Tenant Delay Day (as defined in Exhibit B-1).  As of the Second Expansion Premises Commencement Date, the “Premises” shall include both the Existing Premises and the Second Expansion Premises.  After the Second Expansion Premises Commencement Date occurs, Landlord

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shall deliver to Tenant an instrument confirming the Second Expansion Premises Commencement Date.  The rentable square feet stated herein shall be conclusive on both parties.  

3.Extension of Term.  

(a)The Term is hereby extended for Suite B300 of the Existing Premises only (the “Second Extended Term”) such that the Expiration Date (herein called the “Extended Expiration Date”) for Suite B300 and the Second Expansion Premises shall be May 31, 2028 unless sooner terminated or renewed in accordance with the terms of the Lease, as amended hereby.  All of the terms and conditions of the Lease shall be applicable to Suite B300 and the Second Expansion Premises during the Second Extended Term, except as is otherwise provided in this Amendment. The Term of the Lease for Suite A210 shall expire on the Prior Expiration Date and Tenant shall surrender and vacate same on the Prior Expiration Date in accordance with the terms of the Lease and any failure to do so shall be deemed a holdover with respect thereto.  

(b)The Term for the Second Expansion Premises (the “Second Expansion Premises Term”) shall commence on the SEPCD and shall end on the Extended Expiration Date.  

4.Base Rent for Suite B300 During the Second Extended Term.  Prior to June 1, 2025, Tenant shall continue to pay Base Rent for the Existing Premises in accordance with Sections 4 and 5 of the Third Amendment.  Commencing on June 1, 2025, Tenant shall pay Base Rent for Suite B300 in the same manner as is required under the Lease, as amended hereby, pursuant to the schedule set forth below:

5.Base Rent for the Second Expansion Premises.  In addition to Base Rent for the Current Premises, commencing on the SEPCD (subject to the Second Expansion Premises Abatement Period below), Tenant shall pay Base Rent for the Second Expansion Premises in the same manner as is required under the Lease, as amended hereby, in the amount of $40.00 per rentable square foot of the Second Expansion Premises (or $39,996.67 per month) and on each anniversary of the SEPCD (except as expressly hereinafter provided) during the Second Expansion Premises Term, Base Rent for the Second Expansion Premises shall increase by three percent (3%) (i.e., to $41.20 per rentable square foot or $41,196.57 per month on the first anniversary of the SEPCD, to $42.44 per rentable square foot or $42,436.46 per month on the second anniversary of the SEPCD and to $43.71 per rentable square foot or $43,706.36 per month on the third anniversary of the SEPCD and so on through May 31, 2028).  If, however, the SEPCD does not occur on the first day of a calendar month, (a) Tenant shall pay prorated Rent for the Second Expansion Premises on a per diem basis for such partial month on the SEPCD, and (b) solely for purposes of determining the rate applicable for such partial month and for the balance of the Second Expansion Premises Term, the period from the SEPCD through and including the day immediately preceding the first day of the next full calendar month (such first day being hereinafter referred to as the “SEP Base Rent Anniversary Date”) shall be deemed included within the first full calendar month of the Second Expansion Premises Term and the annual Base Rent increase contemplated hereinabove shall occur on each anniversary of the Base Rent Anniversary Date not on the SEPCD.  By way of example only, if the SEPCD is July 2, 2022, the SEP Base Rent

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Anniversary Date shall be August 1, 2022 and therefore the Base Rent shall increase annually as set forth hereinabove on each August 1st falling within the Second Expansion Premises Term.  

6.Second Expansion Premises Abatement Period.   Notwithstanding the foregoing, provided Tenant is not in an Event of Default under the Lease, as amended hereby, Tenant’s obligation to pay Base Rent for the Second Expansion Premises only shall be abated for the first two (2) calendar months after the SEPCD (the “Second Expansion Premises Abatement Period”).  To illustrate, if the SEPCD occurs on July 2, 2022, then the Second Expansion Premises Abatement Period will commence on the SEPCD and end on September 1, 2022.  If the Second Expansion Premises Abatement Period does not end on the last day of a calendar month, then on the day following the Second Expansion Premises Abatement Period, Tenant shall make a prorated payment of Base Rent for the remainder of such month.  If Tenant commits an Event of Default and fails to cure same before Landlord files suit to terminate the Lease, as amended hereby, or regain possession of the Second Expansion Premises, then all sums so abated shall be immediately due and payable to Landlord. Notwithstanding such abatement of Base Rent, all other sums due under the Lease, as amended hereby, shall be payable as provided in the Lease, as amended hereby.  

7.Additional Rent.  In addition to the Base Rent for the entire Premises, Tenant shall continue to pay as additional rent in the manner and at the times required under Article III of the Original Lease, as amended by Section 5 of the Second Amendment and Section 6 of the Third Amendment, for the balance of the Term, except that:

(a)effective as of June 1, 2025, the Lease is amended to reflect that the “RSF of the Building” with respect to the entire Premises is 202,000 rentable square feet based on a remeasurement of the Building.

(b)effective as of June 1, 2025, the Lease is amended to reflect that Suite B300 contains approximately 13,899 rentable square feet based upon a remeasurement thereof.

(c)effective as of the SEPCD, (i) Tenant’s Percentage with respect to the Second Expansion Premises shall be 5.94%, being the 11,999 rentable square feet in the Second Expansion Premises divided by the current rentable square footage of the Building (i.e., 202,000 rentable square feet), and (ii) Tenant shall pay Tenant’s Share of Operating Expenses and Taxes for the Second Expansion Premises without regard to any base year (i.e., for each calendar year, Tenant's Share of Operating Expenses shall include the total Operating Expenses for the Property multiplied by the Tenant's Percentage and for each fiscal year, Tenant's Share of Taxes shall mean the total Taxes for the Property for that fiscal year multiplied by the Tenant's Percentage), including, without limitation, the Operating Expense Base and Real Estate Tax Base and any all references thereto in the Lease thereto shall have no applicability with respect to the Second Expansion Premises.

(d)effective as of June 1, 2025, Tenant’s Percentage with respect to Suite B300 shall be 6.89% (13,899/202,000) based upon the remeasurement.

(e)effective as of June 1, 2025, the terms “Operating Expense Base” and “Real Estate Tax Base” and any and all references thereto in the Lease are hereby deleted in their entirety and deemed null, void and of no further force or effect with respect to Suite B300 and Tenant shall pay Tenant’s Share of Operating Expenses and Taxes for Suite B300 without regard to any base year, including, without limitation, the Operating Expense Base and Real Estate Tax Base.

(f)effective as of June 1, 2025, Section 3.2(a) of the Original Lease is hereby deleted in its entirety and the following provision is substituted in lieu thereof:

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8.Tenant’s Electricity.  Tenant shall continue to pay the cost of all submetered electricity for the Existing Premises directly to Landlord, as additional rent, as shown on the submeter as and when bills are rendered by Landlord as provided in Section 3.3 of the Original Lease.  To the extent not already existing, as part of the Expansion Work in the Second Expansion Premises, Landlord shall ensure that all electricity used in the Second Expansion Premises is separately submetered or otherwise included in Tenant’s existing submeter for the Existing Premises. Tenant’s obligation to commence paying electricity for the Second Expansion Premises shall commence on the SEPCD.

9.Security Deposit.  Landlord currently holds a Security Deposit in the form of a Letter of Credit in the amount of $150,000.00.

10.Parking.  

(a)From and after the Effective Date through May 31, 2025, the first paragraph of Exhibit E attached to the Second Amendment, as amended by Section 10 of the Third Amendment, is hereby deleted in its entirety and replaced with the following:  

“Tenant shall be provided a total of sixty-eight (68) parking access cards for unreserved parking spaces (i.e., 2 parking spaces per 1,000 square feet of Rentable Area) of which twenty-seven (27) such parking spaces (i.e., .8 parking spaces per 1,000 square feet of Rentable Area) shall be allocated to the lower lot located on the south side of Pleasant Street (the “Lower Lot”) and forty-one (41) of such parking spaces (i.e., 1.2 parking spaces per 1,000 square feet of Rentable Area) shall be allocated to the upper lot located on the north side of Pleasant Street (the “Upper Lot” and with the Lower Lot, the “Parking Area”) subject to such terms, conditions and regulations as are from time to time applicable to patrons of the Parking Area.”

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(b)From and after June 1, 2025, the first paragraph of Exhibit E attached to the Second Amendment, as amended by Section 10 of the Third Amendment and as amended by Section 10(a) of this Fourth Amendment, is hereby deleted in its entirety and replaced with the following:  

“Tenant shall be provided a total of fifty-one (51) parking access cards for unreserved parking spaces (i.e., 2 parking spaces per 1,000 square feet of Rentable Area) of which twenty (20) such parking spaces (i.e., .8 parking spaces per 1,000 square feet of Rentable Area) shall be allocated to the lower lot located on the south side of Pleasant Street (the “Lower Lot”) and thirty-one (31) of such parking spaces (i.e., 1.2 parking spaces per 1,000 square feet of Rentable Area) shall be allocated to the upper lot located on the north side of Pleasant Street (the “Upper Lot” and with the Lower Lot, the “Parking Area”) subject to such terms, conditions and regulations as are from time to time applicable to patrons of the Parking Area.”

11.Condition of Premises.  Tenant hereby re-accepts the Existing Premises in its current “AS-IS” “WHERE IS” condition.  Landlord shall deliver the Second Expansion Premises to Tenant on the SEPCD in its current “AS-IS” “WHERE-IS” condition, subject to the Expansion Work being Substantially Completed. Landlord will also promptly repair the HVAC problems in the Suite A210 at Landlord’s sole cost and expense.  

12.Suite B300 Allowance.  

(a)From and after the Effective Date, Landlord shall provide to Tenant a construction allowance not to exceed $40.00 per rentable square foot in Suite B300 or $555,960.00 (the “Suite B300 Allowance”). The Suite B300 Allowance shall only be applied toward the total hard and soft construction costs of Alterations to be performed by Tenant in the Suite B300 in accordance with Section 4.2 of the Original Lease and all other applicable sections of the Lease.  Tenant shall pay to Landlord a construction supervision fee equal to three percent (3%) of the total construction costs of the Alterations, which shall be deducted from the Suite B300 Allowance. No advance of the Suite B300 Allowance shall be made by Landlord until Tenant has first paid to the contractor from its own funds (and provided reasonable evidence thereof to Landlord) the anticipated amount by which the projected total construction costs exceed the amount of the Suite B300 Allowance.  Thereafter, Landlord shall pay to Tenant the Suite B300 Allowance in multiple disbursements (but not more than once in any calendar month) following the receipt by Landlord of the following items:  (a) a request for payment, (b) final or partial lien waivers, as the case may be, from all persons performing work or supplying or fabricating materials for the Alterations, fully executed, acknowledged and in recordable form, (c) the Architect’s certification that the Alterations for which reimbursement has been requested has been finally completed, including (with respect to the last application for payment only) any punch-list items, on the appropriate AIA form or another form approved by Landlord, and, with respect to the disbursement of the last 10% of the Suite B300 Allowance, (w) “as built” drawings in both paper and AutoCad format; (x) the permanent certificate of occupancy issued for Suite B300, (y) Tenant’s continued occupancy of Suite B300, and (z) an estoppel certificate confirming such factual matters as Landlord or Landlord’s mortgagee may reasonably request (collectively, a “Completed Application for Payment”).  Landlord shall pay the amount requested in the applicable Completed Application for Payment to Tenant within thirty (30) days following Tenant’s submission of the Completed Application for Payment.  If, however, the Completed Application for Payment is incomplete or incorrect, Landlord’s payment of such request shall be deferred until thirty (30) days following Landlord’s receipt of the Completed Application for Payment.  Notwithstanding anything to the contrary contained in this Section, Landlord shall not be obligated to make any disbursement of the Suite B300 Allowance during the pendency of any of the following: (1) Landlord has received written notice of any unpaid claims relating to any portion of the Alterations or materials in connection therewith, other than claims which will be paid in full from such disbursement, (2) there is an unbonded lien outstanding against the Building or Suite B300 or Tenant’s interest therein by reason of work done, or claimed to have been done, or materials supplied or specifically

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fabricated, claimed to have been supplied or specifically fabricated, to or for Tenant or Suite B300, (3) the conditions to the advance of the Suite B300 Allowance are not satisfied, or (4) Tenant is in an Event of Default under the Lease.  No portion of the Suite B300 Allowance may be used as a credit against Rent.

(b)Any portion of the Suite B300 Allowance that remains unexpended by Landlord for Alterations performed in accordance with Section 4.2 of the Original Lease and all other applicable sections of the Lease within eighteen (18) months following the Effective Date shall be deemed forfeited with no further obligation by Landlord with respect thereto and shall be the sole and exclusive property of Landlord.  

13.Option to Extend.  Section 10.23 of the Original Lease is hereby reinstated in its entirety and shall be deemed in full force and effect and exercisable by Tenant upon Landlord’s receipt of written notice from Tenant thereof no later than twelve (12) months prior to the Extended Expiration Date.

14.Brokers.  Tenant represents that Tenant has not dealt with any broker, agent or finder in connection with this Amendment other than Paradigm Properties (“the “Broker”), whose right to a commission shall be paid by Landlord pursuant to separate written agreement, and Tenant agrees to indemnify and hold Landlord harmless from all damages, judgments, liabilities and expenses (including reasonable attorneys’ fees) arising from any claims or demands of any broker, agent or finder other than the Broker with whom Tenant has dealt for any commission or fee alleged to be due in connection with its participation in the procurement of Tenant or the negotiation with Tenant of this Amendment.

15.Binding Effect.  This Amendment shall not be binding until executed and delivered by both Landlord and Tenant.

16.Electronic Counterparts.  This Amendment may be executed in any number of electronic (facsimile or PDF) counterparts, any one of which shall be an original, but all of which together shall be one and the same instrument.

17.Estoppel.  Tenant hereby represents, warrants and agrees that: to the best of Tenant's knowledge, (i) there exists no breach, default or event of default by Landlord under the Lease, or any event or condition which, with the giving of notice or passage of time or both, would constitute a breach, default or event of default by Landlord under the Lease; (ii) the Lease continues to be a legal, valid and binding agreement and obligation of Tenant; and (iii) Tenant has no current offset or defense to its performance or obligations under the Lease. Tenant hereby waives and releases all demands, charges, claims, accounts or causes of action of any nature against Landlord or Landlord's employees or agents, including without limitation, both known and unknown demands, charges, claims, accounts, and causes of action that have previously arisen out of or in connection with the Lease.

18.Exhibits.  Each Exhibit attached hereto is made a part hereof for all purposes.

19.No Representations.  Landlord and Landlord's agents have made no representations or promises, express or implied, in connection with this Amendment, except as expressly set forth herein, and Tenant has not relied on any representations except as expressly set forth herein.

20.OFAC.  Tenant represents and warrants to Landlord that (1) Tenant is not acting, directly or indirectly, for or on behalf of any person, group, entity, or nation named by any Executive Order or the United States Treasury Department as a terrorist, "Specially Designated National," "Blocked Person," or other banned or blocked person, entity, nation, or transaction pursuant to any law, order, rule, or regulation that is enforced or administered by the Office of Foreign Assets Control; and (2) Tenant is not engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf of, any such person, group, entity or nation.   Tenant agrees to defend, indemnify, and hold harmless Landlord from and against any and all claims, damages, losses, risks, liabilities, and expenses

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(including reasonable attorney's fees and costs) arising or related to any breach of the foregoing representation and warranty.

21.Miscellaneous.  This 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.  As modified by this Amendment, the Lease is hereby ratified and confirmed, and shall remain in full force and effect.  In the event of any inconsistency between the provisions of the Lease and this Amendment, the provisions of this Amendment shall control.  Headings used in this Amendment are for convenience only and shall not serve to limit, expand or otherwise alter the terms of this Amendment.  

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Landlord and Tenant have executed this Fourth Amendment to Lease as of the date first above written.

AMENDED EXHIBIT A

EXISTING premises

Amended A-1

Amended A-2

EXHIBIT A-2

SECOND EXPANSION PREMISES

A-2-1

EXHIBIT B-1

WORKLETTER

(a)Preparation and Delivery.  If additional drawings are necessary, as reasonably determined by Landlord, on or before the date which is twenty (20) days after the Effective Date, Landlord shall cause to be prepared final working drawings of all improvements to be installed in the Second Expansion Premises and deliver the same to Tenant for its review and approval (which approval shall not be unreasonably withheld, delayed or conditioned).  

(b)Approval Process. Tenant shall notify Landlord whether it approves of the submitted working drawings within three (3) business days after Landlord’s submission thereof.  If Tenant disapproves of such working drawings, then Tenant shall notify Landlord thereof specifying in reasonable detail the reasons for such disapproval, in which case Landlord shall, within three (3) business days after such notice, revise such working drawings in accordance with Tenant’s objections and submit the revised working drawings to Tenant for its review and approval.  Tenant shall notify Landlord in writing whether it approves of the resubmitted working drawings within one (1) business day after its receipt thereof.  This process shall be repeated until the working drawings have been finally approved by Landlord and Tenant.  If Tenant fails to notify Landlord that it disapproves of the initial working drawings within three (3) business days (or, in the case of resubmitted working drawings, within one (1) business day) after the submission thereof, then Tenant shall be deemed to have approved the working drawings in question.  Any delay caused by Tenant’s unreasonable withholding of its consent or delay in giving its written approval as to such working drawings shall constitute a Tenant Delay Day (defined below).  If the working drawings are not fully approved (or deemed approved) by both Landlord and Tenant by the 20th business day after the delivery of the initial draft thereof, then each day after such time period that such working drawings are not fully approved (or deemed approved) by both Landlord and Tenant shall constitute a Tenant Delay Day.

B-1-1

B-1-2

Landlord an amount equal to 100% of the estimated additional costs of any change to the Space Plans or the Working Drawings at the time of receipt of  applicable contractor invoice for such change and any remaining costs upon Substantial Completion of the Expansion Work.