EXHIBIT 10.10
COMMERCIAL LEASE
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
SUITES 206 ▇▇▇, ▇▇▇ & ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
1. PARTIES
Hawthorne North Realty Trust
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LESSOR, which expression shall include its, heirs, successors, and assigns where
the context so admits does hereby lease to:
Medwave, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, 208, 210 & 212
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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
Suites 206, 208, 210 & 212, containing approximately 3,548 gross square feet of
space, located at "Hawthorne North having the address of Suites 206, 206, 210 &
212, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; 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.
Normal business hours are 8:00 a.m. to 5:00 p.m. Monday thru Friday.
3. TERM
The term of this lease shall be for 3 YEAR(S) commencing on MAY 1, 2004, and
ending on APRIL 30, 2007.
4. RENT
The LESSEE shall pay to the LESSOR fixed rent according to the following
schedule, payable in advance in monthly installments, subject to proration in
the case of any partial calendar month. The obligation to pay rent and other
charges to the landlord is independent of any obligations the landlord has under
this lease. All rent shall be payable on the first day of each and every month,
without offset or deduction. RENT PAYABLE AS FOLLOWS:
RATE MONTHLY ANNUALLY
-----------------------------
YEAR 1: MAY 1, 2004 TO APRIL 30, 2005 $15.79 $4,670.00 $56,040.00
YEAR 2: MAY 1, 2005 TO APRIL 30, 2006 $16.26 $4,808.00 $57,696.00
YEAR 3: MAY 1, 2006 TO APRIL 30, 2007 $16.75 $4,952.00 $59,424.00
5. SECURITY DEPOSIT/ADVANCE RENT
Upon the execution of this lease, the LESSEE ill have paid to the LESSOR the
amount of $2,200.00 dollars, which shall be held as a Security Deposit for the
LESSEE'S performance as herein provided and refunded to the LESSEE at the end of
this lease, without interest, subject to the LESSEE'S satisfactory compliance
with the conditions hereof.
6. RENT ADJUSTMENTS
70
7. UTILITIES
The LESSEE shall pay, as they become due all bills for electricity and other
utilities (whether they are used for furnishing heat or other purposes) that are
furnished to the leased premises and presently separately metered, and all bills
for fuel furnished to a separate tank servicing the leased premises exclusively.
The LESSOR agrees to provide all other utility service and to furnish reasonably
hot and cold water and reasonable heat and air conditioning (except to the
extent that the same are furnished through separately metered utilities or
separate fuel tanks as set forth above) to the leased premises, 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 customary in similar buildings
in said city or town, 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 that they are usually obtained for said building, or to any cause
beyond the LESSOR'S control. LESSEE to pay for service maintenance of HVAC twice
per year (Spring & Fall), $150.00 annually, per unit for a total of $600.00 per
year (4 units). A late charge of 5% will be imposed after 10 days from date of
billing.
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
The LESSEE shall use the leased premises only for the purpose of operating a
professional office and conducting professional business related services. All
other proposed uses shall be subject to the written consent of the LESSOR and
LESSOR shall have sole and complete discretion to give or withhold such consent.
9. COMPLIANCE WITH LAWS
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 by-law or ordinance in force
in the city or town in which the premises are situated. Without limiting the
generality of the foregoing (a) the LESSEE shall not bring or permit to be
brought or kept in or on the leased premises or elsewhere on the LESSOR'S
property any hazardous, toxic, inflammable, combustible or explosive fluid,
material, chemical or substance, including without limitation any item defined
as hazardous pursuant to Chapter 21E of the Massachusetts General Laws; and (b)
the LESSEE shall be responsible for compliance with requirements imposed by the
Americans with Disabilities Act relative to the layout of the leased premises
and any work performed by the LESSEE therein.
10. FIRE INSURANCE
The LESSEE shall not permit any use of the leased premises which will make void
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 OBLIGATION
The LESSEE agrees to maintain the leased premises in good condition, damage by
fire and other casualty only excepted, and whenever necessary, to replace plate
glass and other glass therein, acknowledging that the leased premises are in now
good order and the glass whole. The LESSEE shall not permit the leased premises
to be overloaded, damaged, stripped, or defaced, nor suffer any waste. LESSEE
shall not bring or permit to be brought or kept in, or on the leased premises,
or elsewhere on the LESSOR'S property, any pets or animals. It is the
responsibility of the tenant to replace light bulbs within leased premises.
71
(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 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 whose conduct the LESSEE is legally
responsible.
12. ALTERATIONS I ADDITIONS
The LESSEE shall not make structural alterations or additions to the leased
premises, but may make non-structural 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 claim 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.
13. ASSIGNMENT I SUBLEASING
The LESSEE shall not assign or sublet the whole or part of the leased premises
without LESSOR'S prior written consent. In the event of a sublease, LESSEE must
pursue market rate rents. If such rents exceed the existing lease terms, then
seventy-five percent (75%) of the excess in addition to the required lease
payment will be due to the LESSOR. Under no circumstance can the rents be below
existing lease terms. The LESSOR must duly sign and authorize any sub-lease.
Notwithstanding such consent, LESSEE shall remain liable to LESSOR for the
payment of all rent and for the full performance of the covenants and conditions
of this lease.
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.
15. LESSOR'S ACCESS - HOLD HARMLESS
The LESSOR or agents of the LESSOR may, at reasonable times, enter to view the
leased premises 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. LESSOR will be held harmless if premises have not been
timely vacated by present tenant. LESSOR will make every effort to provide
premises at the commencement date of this lease.
16. INDEMNIFICATION AND LIABILITY
The LESSEE shall save the LESSOR harmless from all loss and damage occasioned by
anything occurring on the leased premises unless caused by the negligence or
misconduct of the LESSOR, and from all loss and damage wherever occurring
occasioned by any omission, fault, neglect or other misconduct of the LESSEE.
The removal of snow and ice from the sidewalks bordering upon the leased
premises shall be the LESSOR'S responsibility.
17. LESSEE'S LIABILITY INSURANCE
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 $1,000,000 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 the 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,
72
and thereafter within thirty (30) days before the expiration of any such
policies. All such insurance certificates shall provide that policies shall not
be canceled without at least ten (10) days prior written notice to each assured
named therein.
18. FIRE I CASUALTY I 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 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.
19. DEFAULT AND BANKRUPTCY
In the event that:
(a) The LESSEE shall default in the payment of any installment of rent or
other sum 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 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 re-enter 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 waving such default, 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 eighteen percent (18%)
per annum and costs, shall be paid to the LESSOR by the LESSEE as additional
rent.
20. NOTICE
Any notice from the LESSOR to the LESSEE relating to the leased premises or to
the occupancy thereof, shall be deemed duly served, if left at the leased
premises addressed to the LESSEE, or if mailed to the leased premises,
registered or certified mail, return receipt requested, postage prepaid,
addressed to the LESSEE. Any notice from the LESSEE to the LESSOR relating to
the leased premises or the occupancy thereof, shall be deemed duly served, if
mailed to the LESSOR by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
73
If to the LESSEE: If to the LESSOR:
Medwave, Inc. Hawthorne North Realty Trust
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
All rent shall made payable to Hawthorne North Realty Trust
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, damage by fire or other casualty
only excepted. 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
the 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. BROKERAGE
The Broker(s) named herein ▇▇▇▇▇▇▇ Property Consultants, Inc. warrant(s) that
he, she (they) is (are) duly licensed as such by the Commonwealth of
Massachusetts, and join(s) in this agreement and become(s) a party hereto,
insofar as any provisions of this agreement expressly apply to him, her (them),
and to any amendments or modifications of such provisions to which he, she
(they) agree(s) in writing. LESSOR agrees to pay the above-named Broker upon the
term commencement date a fee for professional services. The LESSEE warrants and
represents that it has dealt with no other broker entitled to claim a commission
in connection with this transaction and shall indemnify the LESSOR from and
against any such claim, including without limitation reasonable attorneys' fees
incurred by the LESSOR in connection therewith.
23. CONDITION OF PREMISES
Except as may be otherwise expressly set forth herein, the LESSEE shall accept
the leased premises "as is" in their condition as of the commencement of this
lease, and the LESSOR shall be obligated to perform no work whatsoever in order
to prepare the leased premises for occupancy by the LESSEE.
24. FORCE MAJEURE
In the event that the LESSOR is prevented or delayed from making any repairs or
performing any other covenant hereunder by reason of any cause reasonably beyond
the control of the LESSOR, the LESSOR shall not be liable to the LESSEE
therefore nor, except as expressly otherwise provided in case of casualty or
taking, shall the LESSEE be entitled to any abatement or reduction of rent by
reason thereof, nor shall the same give rise to a claim by LESSEE that such
failure constitutes actual or constructive eviction from the leased premises or
any part thereof.
25. LATE CHARGE
If rent or any other sum payable hereunder remains outstanding by 2:00 p.m. EST
on the tenth (10th) day of the month, the LESSEE shall pay to the LESSOR a late
charge equal to five percent (5.00%) of the amount due for each month or portion
thereof during which the arrearage continues.
26. LIABILITY OF OWNER
No owner of the property of which the leased premises are a part shall be liable
hereunder except for breaches of the LESSOR'S obligations occurring during the
period of such ownership. The obligations of the LESSOR shall be
74
binding upon the LESSOR'S interest in said property, but not upon other assets
of the LESSOR, and no individual partner, agent, trustee, stockholder, officer,
director, employee or beneficiary of the LESSOR shall be personally liable for
performance of the LESSOR'S obligations hereunder.
27. ENFORCEMENT
If any one provision of this lease is considered unenforceable, this will not
affect the remaining terms and conditions of this lease.
28. COMPLIANCE
If any term or condition of this lease is not promptly complied with upon
written request, any legal fees incurred as a result of the non compliance will
be the responsibility of the LESSEE.
29. SIGNAGE
LESSEE shall obtain written consent of LESSOR before erecting any signage on the
premises.
30. OTHER PROVISIONS
It is also understood and agreed that this lease supercedes and replaces the
existing lease dated December 20, 2001 between Hawthorne North Realty Trust and
Medwave, Inc. for suites 206-208.
LESSOR agrees to replace stained and broken ceiling tiles.
IN WITNESS WHEREOF, the said parties hereunto set their hands and seals
this 13th day of ________________________, 2004.
_______________________________________________
LESSEE DATE
Medwave, Inc.
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇, President
_______________________________________________
LESSOR DATE
Hawthorne North Realty Trust
▇▇▇▇ ▇▇▇▇▇▇▇, Trustee
_______________________________________________
BROKER
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Property Consultants, Inc.
75