exv10w3



 






EXHIBIT 10.3




THIRD LEASE MODIFICATION AND EXTENSION AGREEMENT




     THIS THIRD LEASE MODIFICATION AND EXTENSION AGREEMENT (this “Agreement”) is made and
entered into as of the 26th day of January, 2005, by and between AMB PROPERTY, L.P., a
Delaware limited partnership (the “Lessor”) and MEDWAVE, INC., a Delaware corporation (the
“Lessee”);



WITNESSETH:




     WHEREAS, Lessor; the successor in title to Round Lake LLC, and Lessee are the parties to
that certain Office/Warehouse Lease dated April 10, 1997, as amended by that certain Lease
Modification and Extension Agreement dated March 29, 2002 and that certain Second Lease
Modification and Extension Agreement dated April 12, 2004 (collectively, the “Lease”), wherein
Lessor leased to Lessee and Lessee leased from Lessor that certain premises containing
approximately 5,964 square feet, commonly known as 4382-84 Round Lake Boulevard, Arden Hills,
Minnesota and designated as Bays 5 and 6, which premises is more particularly depicted on the site
plan attached hereto as Exhibit A (the “Original Premises”); and



     WHEREAS, in addition to extending the term of the Lease, Lessor desires to lease to Lessee and
Lessee desires to lease from Lessor, both the Original Premises and that certain premises adjacent
to the Original Premises containing 7,073 square feet designated as Bays 7 and 8 and depicted on
attached Exhibit A (the “Expansion Area”).



     NOW, THEREFORE, in consideration of the above and the mutual promises and covenants contained
herein and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by each of the parties hereto, the parties agree as follows:


Extension. The Term of the Lease is hereby extended for a period of three (3) years
commencing June 1, 2007 and ending on June 30, 2010 (the “Extended Term”).




Expansion/Improvements.





	•  	Commencing on February 1, 2005 (the “Expansion Date”),
through and including June 30, 2010, Lessor shall lease to
Lessee and Lessee shall lease from Lessor both the Original
Premises and the Expansion Area for an aggregate square
footage of 13,037, and which shall be collectively deemed the
“Premises” for all purposes under the Lease. In the event
Lessor for any reason is unable to deliver possession of the
Expansion Area by February 1, 2005, Lessor shall not be
deemed in default under the Lease and the Expansion Date
shall be deemed the date that possession of the Expansion
Area is delivered to Lessee. As a condition to the
achievement of the Expansion Date, prior to the Expansion
Date Lessee shall deliver to Lessor (i) copies of insurance
certificates covering both the Original Premises and the
Expansion Area in accordance with the requirements of
Paragraph 16 of the Lease, provided that the insurance limits
be increased to reflect not less than $1,000,000 for
injury/death to any one person, $3,000,000 for injury/death
to more than one person, and $1,000,000 for damage to
property, and (ii) an additional security deposit covering
the Expansion Area in the amount of $5,039.51 which shall be
considered part of the Security Deposit for all purposes
under the Lease.






	•  	Lessor shall provide for the construction of a new demising
wall at the west side of the Expansion Area and separately
metered utilities during the month of February. Lessor shall
guaranty that the HVAC unit(s) in the Expansion Area will be
in working order and condition for a period of one (1) year
following delivery of the Expansion Area to Lessee,
specifically excepting from the, scope of such
guaranty any damage caused to the HVAC unit(s) resulting from acts or omissions
of Lessee or Lessee’s agents, employees, representatives, contractors or
invitees.




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Base Rent, Operating Expenses and Utilities.





	•  	Paragraph 2 of the Lease is hereby amended to
provide that commencing February 1, 2005, Lessee
shall be responsible for the payment of Base
Rent at the following monthly rates and
otherwise pursuant to the terms and conditions
of the Lease:





	 	 	 	 	 
	Time Period	 	Monthly Base Rent	 
	February 1, 2005 - June 30, 2005
	 	$	4,159.38	 
	July 1, 2005 - June 30, 2006
	 	$	5,510.13	 
	July 1, 2006 - June 30, 2007
	 	$	5,620.33	 
	July 1, 2007 -June 30, 2008
	 	$	5,732.74	 
	July 1, 2008 - June 30, 2009
	 	$	5,847.39	 
	July 1, 2009 - June 30, 2010
	 	$	5,964.34	 







	•  	Commencing February 1, 2005 and continuing through and
including June 30, 2005, (i) Lessee shall be responsible for
the payment of Real Estate Taxes and Operating Expenses on
both the Original Premises and Bay 1 of the Expansion Area in
accordance with the terms and conditions of the Lease, and
(ii) Lessee’s proportionate share of Real Estate Taxes and
Operating Expenses under the Lease shall equal 12.66%. Until
July 1, 2005, Lessee shall continue to be responsible for
making all payments of Base Rent, Operating expenses and
utilities to Lessor for the Original Premises in accordance
with the Lease.






	•  	Commencing July 1, 2005 and continuing through the end of the
term of the Lease, (i) Lessee shall be responsible for the
payment of Real Estate Taxes and Operating Expenses on both
the Original Premises and the entire Expansion Area in
accordance with the terms and conditions of the Lease, and
(ii) Lessee’s proportionate share of Real Estate Taxes and
Operating Expenses under the Lease shall equal 17.49%.






	•  	Lessee shall be responsible for the payment of utilities
covering the entire Expansion Area commencing February 1,
2005.




Broker. Lessee and Lessor cash represent and warrant to the other that it has dealt
with no broker, agent or other person its connection with this transaction other then CB Richard
Ellis (the “Broker”) or that no broker, agent or other person other than the Broker brought about
this transaction, other than as may be referenced in a separate written agreement executed by such
party, and delivered to the other party, and each party agrees to indemnify and hold the other
harmless from and against any claims by any other broker, agent or other person other than the
Broker claiming a commission or other form of compensation by virtue of having dealt with such
party with regard to this leasing transaction. Lessor agrees to pay the leasing commission of the
Broker payable in connection with this transaction.




Estoppel/Acknowledgements of Lessee.





	•  	The Premises (including any improvements thereto)
required to be furnished according to the Lease have
been duly delivered and accepted by Lessee.






	•  	Neither Lessor nor Lessee is in default under the Lease
and the Lease is in full force and effect and has not
been assigned, modified, supplemented, subleased, or
amended, except as disclosed in the preambles to this
Agreement.






	•  	The Lease and this Agreement represent the entire
agreement between Lessor and Lessee. Lessee has no
option, right of first refusal, or other right to
renew, extend, lease additional space, or purchase any
part of the Premises.






	•  	Lessee has no defenses or offsets against the
enforcement of this Lease by Lessor or other claims
against Lessor.






	•  	There are no concessions or abatements of rent that
affect any rent accruing now or later; no rent accruing
now or latter under the Lease has been paid in advance.




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	•  	Lessee hereby acknowledges and agrees that Lessor has
complied with and/or Lessee waives compliance with all
of Lessor’s obligations under the Lease through the
date of this Agreement.





Miscellaneous.





	•  	Applicable Law. This Agreement shall be governed by
and construed and enforced in accordance with the laws
of the State of Minnesota.






	•  	Effect of Agreement. Except as expressly amended by
this Agreement, all terms and conditions of the Lease
are and remain in fill force and effect, which each of
the parties hereto hereby acknowledge, agree and
confirm.






	•  	Counterparts. This Agreement may be executed in two or
more counterparts, which, together or collectively,
shall be deemed one and the same Agreement.






	•  	Capitalized Terms. Capitalized terms not otherwise
defined herein shall have the meaning ascribed thereto
in the Lease.





     IN WITNESS WHEREOF, Lessor and Lessee have each caused this Agreement to be executed as
of the date first above written.



	 	 	 	 	 	 	 
	In the presence of:	 	LESSOR:
	 
	 	 	 	 	 	 
	 	 	AMB PROPERTY, L.P.,
	 	 	a Delaware limited partnership
	 
	 	 	 	 	 	 
	

	 	By:
	 	AMB Property Corporation

a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	

	 	Its:
	 	General Partner	 	 
	 
	 	 	 	 	 	 
	/s/ Elizabeth Panagaplas

	 	By:
	 	/s/ Cristos F. Kombouras	 	 
	 

	 	 	 	 	 	 
	Name:
	 	 	 	 	 	 
	

	 	Its:
	 	VP, Regional Manager	 	 
	 
	 	 	 	 	 	 
	 	 	Dated: January 31, 2005
	 
	 	 	 	 	 	 
	In the presence of:

	 	LESSEE:	 	 	 
	 
	 	 	 	 	 	 
	 	 	MEDWAVE, INC.,
	 	 	a Delaware limited partnership
	 
	 	 	 	 	 	 
	Name: /s/ Brigitte O’Malley

	 	By:
	 	/s/ Timothy O’Malley	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	

	 	Its:
	 	President and CEO	 	 
	

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Dated: January 26, 2005






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