Exhibit 10.11
COMMERCIAL TENANCY-AT-WILL AGREEMENT
THIS COMMERCIAL TENANCY AT WILL AGREEMENT ("AGREEMENT") is entered into as of
March 14, 2005 by and between 1600 Xxxxxx St., LLC, a Massachusetts Limited
Liability Company, ("LANDLORD") and NxSTAGE Medical, Inc. a Delaware Corporation
("TENANT").
WHEREAS, TENANT, desires to hire the premises as defined below at 0000 Xxxxxx
Xxxxxx, AND
WHEREAS, the LANDLORD is willing and able to rent the premises,
WHEREAS, in recognition thereof, the parties have agreed to enter into a
Tenancy-at-Will agreement, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties agree as follows:
1) TENANT hereby hires the following premises:
Approximately 20, 150 net rentable square feet, net rentable equals net
usable of the first floor of Building 30 in 0000 Xxxxxx Xxxxxx Xxxxxxxx
Xxxxxx, Xxxxx Xxxxxxx, XX. The hired premises are shown via the
highlighting on the plan of the building attached hereto as Exhibit "A".
Together with the right to use in common, with others entitled thereto,
the hallways, stairways, and elevators, necessary for access to said hired
premises, and necessary for access to shared cafeteria facilities, and
lavatories nearest thereto.
2) The First Term of the Rental Period of agreement shall be six months firm
commencing March 1, 2005. On August 1, 2005, the Rental Period term will
convert to month-to-month and be known as the Second Term hereunder.
3) The TENANT shall pay to the LANDLORD rent at the rate of $5,038.00 per
month, payable in advance subject to proration in the case of any partial
calendar month. All rent shall be payable without offset or deduction.
4) Upon the execution of this Agreement, the TENANT shall pay to the LANDLORD
the amount of $5,038.00 dollars, which shall be held as a security for the
TENANT's performance as herein provided and refunded to the TENANT at the
termination of the Agreement, without interest, subject to the TENANT's
satisfactory compliance with the conditions hereof.
5) LANDLORD rents to TENANT the premises at the specified rent from rental
period to rental period. This tenancy may be terminated by a written
notice given by either party of the other before the first day of any
rental period and shall be effective on the last day of that rental
period; provided however, that in the event of any breach by TENANT of the
AGREEMENT, LANDLORD shall be entitled to pursue any and all remedies
provided or recognized by applicable law.
6) This tenancy shall be upon the following conditions:
a) CARE OF PREMISES - LANDLORD shall deliver the Premises in broom
clean condition, with all utilities in good working order. The
TENANT shall not paint, decorate or otherwise embellish and/or
change and shall not make nor suffer any additions or alterations to
be made in or to the premises without the prior written consent of
the LANDLORD, which shall not be unreasonably withheld, and at
termination shall deliver up the premises and all property belonging
to the LANDLORD in good, clean and tenantable order and condition,
reasonable wear and tear excepted. No air conditioning or space
heating devices or other like equipment may be installed without the
prior written consent of the LANDLORD, at LANDLORD's sole
discretion. Further,
TENANT shall not make any structural alterations to the hired
premises. Any such allowed alterations hereunder shall be at
TENANT's sole cost and expense and shall be in quality at least
equal to the present construction. TENANT shall not permit
mechanics' liens, or similar liens, to remain upon the hired
premises for labor and material furnished to TENANT or claim to have
been furnished to TENANT in connection with work of any character
performed or claimed to have been performed at the direction of
TENANT, and shall cause any such lien to be released of record
forthwith without cost to LANDLORD. Any alterations or improvements
made by TENANT shall become the property of the LANDLORD at the
termination of occupancy as herein provided, unless LANDLORD
specifically instructs TENANT to remove such alterations or
improvements at the termination hereof.
b) CLEANLINESS - TENANT shall maintain the premises in a clean
condition and shall not sweep, throw, or dispose of nor permit to be
swept, thrown, or disposed of, from said premises nor from any doors
or other parts of said building, any dirt waste, rubbish, or other
substance or article into any other parts of said building or the
land adjacent thereto, except in proper receptacles and except in
accordance with the rules of the LANDLORD. TENANT agrees to maintain
the hired 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 hired premises
are now in good order and the glass whole. The TENANT shall not
permit the hired premises to be overloaded, damaged, stripped nor
defaced, nor suffer any waste.
c) DISTURBANCE, ILLEGAL USE - Neither the TENANT nor his invitees,
visitors, or agents shall make or suffer any unlawful, noisy or
otherwise offensive use of the premises, nor commit or permit any
nuisance to exist thereon, nor cause damage to the premises, nor
create any substantial interference with the rights, comfort, safety
or enjoyment of the LANDLORD or other occupants of the same or any
other suite, nor make any use whatsoever thereof other than for
warehousing and order fulfillment. The TENANT shall not permit any
use of the hired premises which will make voidable any insurance on
the property of which the hired premises are a part, or on the
contents on 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. TENANT shall on demand reimburse to LANDLORD, and all other
tenants, all extra insurance premiums caused by the TENANT's use of
the hired premises.
d) HAZARDOUS MATERIALS - TENANT shall not keep in the leased premises
any inflammable fluids or chemicals, or permit the emission fro the
leased premises of any objectionable noise or odor; nor dump, flush,
or in any way introduce any hazardous substances or any other toxic
substances into the sewage or other waste disposal system serving
the hired premises or the building; nor generate, store, use or
dispose of hazardous or toxic substances in or on the hired
premises, the building or the office park in which they are located
except as specifically allowed under the terms and conditions
hereof, and, in any event, at all times in conformance with
applicable laws, regulations, and ordnances. TENANT shall indemnify,
defend and hold harmless LANDLORD from and against any damages,
suits, costs or expense resulting from TENANT's failure to comply
with the covenants contained in this Section 6.d.. For the purposes
of the covenants contained herein this section 6.d., TENANT is
intended and does specifically include all of TENANT's agents,
employees, licensees, invitees, guests, and any and all other
persons and/or entities entering onto the leased premises or
anywhere within building or the office park. "Hazardous substances"
and "toxic substances" as used herein shall have the same meanings
as defined an used in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. 9061
et seq., in the Hazardous Material Transportation Act, 49
U.S.C.1802; in the Toxic Substances Act, 15 U.S.C. 2601 et seq.; in
the Resource Conversation and Recovery Act, as amended, 42 U.S.C.
6921 et seq.; in the Massachusetts Hazardous Waste Management Act,
as amended; in Massachusetts General Laws Chapter 21; in
Massachusetts Oil and Hazardous Material Release Prevention and
Response Act, as amended, in the regulations adopted and
publications promulgated pursuant to said Acts; and in any other
applicable laws, rules, regulations and orders.
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e) COMMON AREAS - No receptacles or articles of obstructions shall be
placed in the halls or other common area passageways.
f) UTILITIES - The LANDLORD agrees to provide utility service and to
furnish reasonable hot and cold water and reasonable heat and
air-conditioning to the hallways, stairways, elevators, and
lavatories during normal business hours on regulator 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 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 fro the sources from which they are usually obtained for
said building, or to any cause beyond the LANDLORD's control.
LANDLORD 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 agreement, but shall assure that all such
utilities and equipment are in good working order during the Term of
this agreement. In the event TENANT requires additional utilities or
equipment, the installation and maintenance thereof shall be the
TENANT'S sole obligation provided that such installation shall be
subject to the written consent of the Landlord. Beginning with the
Second Term TENANT 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 hired
premises and presently separately metered, and all bills for fuel
furnished to a separate tank servicing the hired premises
exclusively. With respect to any other utilities serving the hired
premises, TENANT agrees to reimburse LANDLORD for its proportionate
share of the costs and expenses of such utilities, and any
maintenance thereof, incurred by the Landlord, upon such formula as
LANDLORD may reasonably adopt. All utilities provided hereunder are
subject to interruption due to any accident, the marking of repairs,
alterations, or improvements, to labor difficulties, to trouble in
obtaining fuel, electricity service, or supplies fro the sources
from which they are usually obtained for said building, or to any
cause beyond the LANDLORD's control.
TENANT shall arrange and shall be solely responsible for janitorial,
cleaning and security services on the hired premises. TENANT shall
provide and pay for its own telephone and/or cable or other
communication services.
g) PREMISES "AS IS" - TENANT acknowledges that it has inspected the
hired premises and agreed to accept the hired premised in their "AS
IS" condition. All exterior doors shall be part of the 0000 Xxxxxx
Xxxxxx, LLC Master Key System.
h) LOSS OR DAMAGE - TENANT agrees to indemnify and save LANDLORD
harmless from all liability, loss or damage arising from any
nuisance made or suffered on the premises by TENANT, visitors,
agents, or from any carelessness, neglect, or improper conduct of
any such persons. Subject to the provisions of applicable law,
LANDLORD shall not be liable for damage to or loss of property of
any kind while on the hired premises nor to any personal injury,
unless caused by gross negligence of LANDLORD.
i) REPAIRS - TENANT shall at all times keep and maintain the hired
premises and fixtures therein or used therewith repaired, whole and
of the same kind, quality and description and in such good repair,
order and condition as at the commencement of occupancy, or as may
be put in thereafter, reasonable wear and tear excepted. LANDLORD
and TENANT agree to comply with any responsibility, which either may
have under applicable law, to perform repairs upon the hired
premises. If TENANT fails within a reasonable time to make such
repairs, then and in any such event, LANDLORD may (but shall not be
obligated to) make such repairs and TENANT shall reimburse LANDLORD
for the reasonable cost of such repairs in full, upon demand.
j) RIGHT OF ENTRY - The LANDLORD may enter upon the hired premises in
case of emergency, to make repairs thereto, to inspect the hired
premises, or to show the premises to prospective tenants,
purchasers, or mortgagees. The LANDLORD may also enter upon the said
hired
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premises if same appear to have been abandoned by the TENANT or as
otherwise permitted by law.
k) OCCUPANCY OF PREMISES - TENANT shall not assign or underlet any part
or the whole of the hired premises without first obtaining the
assent in writing of LANDLORD, which may be withheld in LANDLORD's
sole discretion.
l) SUBORDINATION - This tenancy at will 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 hired
premises are a part and the TENANT shall, when requested, promptly
execute and deliver such written instruments as shall be necessary
to show the subordination of this tenancy at will to said mortgages,
deeds of trusts, or other instruments in the nature of a mortgage.
Said subordination shall not be upon the condition that the
mortgagee, or other interest holder, provides TENANT with any
agreement concerning non disturbance. In addition, TENANT agrees to
execute and deliver to LANDLORD within five (5) days of LANDLORD'S
request therefore, an estoppel certificate in such form as is
requested any LANDLORD attesting to the status of payments made
hereunder, security deposits held by LANDLORD, the continued
effectiveness and enforceability of this tenancy at will, and the
absence of any defaults on the part of LANDLORD (or indicating the
nature of any such defaults known by TENANT), and such other matters
relating to this tenancy at will the hired premises, as LANDLORD may
reasonably request.
m) TENANT's LIABILITY INSURANCE - TENANT shall maintain with respect to
the hired premises and the property of which the hired premises are
a part, comprehensive public liability insurance in the amount of
$1,000,000,00 with property damage insurance in limits of
replacement cost in responsible companies qualified to do business
in the Commonwealth of Massachusetts and in good standing therein
insuring the TENANT against injury to xxxxxxx or damage to property
as provided. TENANT shall deposit with LANDLORD certificates for
such insurance at or prior to the commencement of term, and
thereafter within thirty (30) days prior to the expiration of such
policies. All such insurance certificates shall provide that such
policies shall not be cancelled without at least ten (10) days prior
written notice to each insured named therein.
n) DEFAULT AND BANKRUPTCY - In the event that TENANT shall default in
the payment or any installment of rent or other sum herein specified
beyond the applicable due date hereunder and TENANT shall default in
the observance of any other of the TENANT's covenants or agreements
or obligations hereunder. In such default shall not be corrected
when thirty (30) days after thereof; or the TENANT shall be declared
bankrupt or insolvent accordingly to law, or, in any assignment
shall be made of TENANT's property for the benefit of creditors,
then LANDLORD shall have the right thereafter, while such default
continues to reenter and take complete possession of the hired
premises, to declare she tenancy at will ended, remove the TENANT's
effects without any other remedies which might be available for
arrears of rent or other sums due hereunder, or for any other
default. TENANT shall indemnify LANDLORD against all loss of rent
and other payments which the LANDLORD may incur by reason of such
termination. If the TENANT shall default in the observance or
performance of any condition or covenant on TENANT's part to be
observed or performed under or by virtue of any provision of this
tenancy at will, LANDLORD may, but without being under any
obligation to do so and without thereby waiving such result, remedy
such default for the account and at the expense of TENANT, the cost
and expense of which, including but not limited to reasonable
attorneys fees in instituting, prosecuting or defending any such
action or proceeding, together with interest at the rate of 18% per
annum, shall be paid by TENANT to LANDLORD as additional rent
hereunder. Regardless of the provisions hereof, TENANT acknowledges
and agrees that LANDLORD may terminate this tenancy at will, at any
time, consistent with paragraph 5 hereof.
o) SURRENDER - The TENANT shall at the expiration or other termination
of this tenancy at will remove of all TENANT's good and effects from
the hired premises (including, without limiting the provisions
hereof, all signs and lettering affixed or painted by the TENANT, to
either inside or
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outside the hired premises). The TENANT shall deliver to LANDLORD
the hired premises and all keys, locks thereto, and other fixtures
connected therewith and all alterations and additions made to or
upon the hired premises, in good condition, damaged by fire other
casualty only excepted. In the event of TENANT's failure to remove
any of TENANT's property from the hired premises, LANDLORD is hereby
authorized, without liability to TENANT for loss or damage thereto,
and at the sole risk and expense of TENANT, to remove and store any
of the property of the TENANT, or retain same under LANDLORD's
control, or 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 otherwise
depose of or destroy such property, it being understood that any
property remaining at the termination hereof shall be deemed to have
been abandoned by TENANT.
p) FORCE MAJEURE - In the event that LANDLORD is prevented or delayed
from making any repair of perofring any other covenant hereunder, by
reason of any cause reasonably beyond the control of LANDLORD,
LANDLORD shall not be liable to TENANT therefore, nor except as
expressly otherwise provided in case of casualty or taking, shall
the TENANT shall be entitled to any abatement or reduction of rent
by reason thereof, nor shall the same give rise to a claim by the
TENANT that such failure constitutes actual or constructive eviction
from the irked premises or any part thereof.
q) LATE CHARGE - If rent or any other sum payable hereunder remains
outstanding for a period of 10 days, TENANT shall pay to LANDLORD at
a late charge equal to 5% of the amount due for each month or a
portion thereof during which such arrearage continues.
r) LIABILITY OF OWNER - No owner of the property of which the hired
premises are a part shall be liable hereunder except for breaches of
the LANDLORD's obligations occurring during the period of such
LANDLORD's ownership. The obligations of the LANDLORD shall be
binding upon LANDLORD's interest in said property, but not upon any
other asset of the LANDLORD, and no individual agent, trustee,
stockholder, officer, director, manager, employee, member or
beneficiary of the LANDLORD shall be personally liable for
performance of the LANDLORD's obligations hereunder.
s) NOTICE - Any notice from the LANDLORD to the TENANT relating to the
leased premises or the occupancy thereof, shall be deemed duly
serve, if left at the leased premises addressed to the TENANT, or
mailed to the leased premises, registered or certified mail, return
receipt request, postage prepaid, addressed to the TENANT. Any
notice from the TENANT to the LANDLORD relating to the leased
premises or to the occupancy thereof, shall be deemed duly served,
if mailed to the LANDLORD by registered or certified mail, return
receipt requested, postage prepaid, addressed to the LANDLORD at
such address as the LANDLORD may from time to time advise in
writing. All rent notices shall be paid and sent to the LANDLORD at
0000 Xxxxxx Xxxxxx, LLC, c/o Ozzy Properties, Inc., 0 Xxxxxx Xxxxxx
Xxxx, Xxxxxxx, XX 00000.
t) ADDITIONAL PROVISIONS - It is also understood and agreed that:
1. Landlord has agreed to provide industrial fencing/gates
sufficient to surround and separate the Premises. Cost
to install said fencing is Tenant's responsibility. Upon
expiration of this agreement, fencing/gates shall remain
the property of Landlord.
2. Landlord has agreed to make a workstation available for
Tenant to use on the Premises. Workstation shall consist
of cubicle partitioning, a desk and chair. Workstation
shall remain the property of Landlord.
3. Landlord has agreed to maintain rodent and insect
control programs as required to assure Premises are free
from rodent and insect infestation.
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4. Tenant shall have the right house shared shipping docks
and product staging areas nearest to hired Premises as
required for proper operation of its warehousing and
order fulfillment functions.
5. Tenant shall have the right to post identifying signage
at the exterior of the shipping dock door area to
distinguish the area for appropriate pick-up and
delivery services.
IN WITNESS WHEREOF, the said parties hereunto have set their hands on the day
and year first above written.
0000 Xxxxxx Xxxxxx, LLC NxSTAGE Medical, Inc.
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------- ------------------------------
Name: Xxxx Xxxxxxxxx Name: Xxxx Xxxxxxx
Title: Manager Title: CEO
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MODIFICATION TO TENANCY AT WILL AGREEMENT
This Modification is entered into by and between 1600 Xxxxxx Street, LLC
("LESSOR") and NxStage Medical, Inc. ("LESSEE") with respect to that Commercial
Tenancy-At-Will Agreement dated March 14, 2005 ("AGREEMENT") concerning the
property located in Building 30, 0000 Xxxxxx Xxxxxx, Xxxxx Xxxxxxx, XX 00000.
WHEREAS, the LESSEE desires to lease an additional 4,276 net rentable square
feet of manufacturing space on the first floor of Building 30 at 1600 Xxxxxx
Commerce Center, North Andover, MA, and
WHEREAS, the LESSOR agrees to this expansion, then
WHEREAS, in recognition thereof, the parties have agreed to modify and amend the
LEASE, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties agree as follows:
1) The first sentence of Paragraph 1 shall be amended to read:
TENANT hereby hires the following premises: Approximately 20,150 net
rentable Warehouse square feet ("The Warehouse Space"), and 4,276
net rentable Manufacturing square feet ("The Manufacturing Space")
for a total of 24,426 net rentable square feet on the first floor of
building 30 at 0000 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxx,
XX.
2) Paragraph 2 shall be amended to read as follows:
The First Term of the rental period of this agreement shall be four
months commencing March 1, 2005, and include the Warehouse Space
only. On July 1, 2005, or upon formal approval of the Premises for
TENANT'S intended use by the Town of North Andover, whichever is
later, the Premises will be expanded to include the Manufacturing
Space and be known as the Second Term hereunder. The Second Term
shall be for 6 months firm. On January 1, 2006, the rental period
shall convert to a month-to-month and be known as the Third Team
hereunder.
3) Paragraph 3 shall be amended to read:
During the First Term, the TENANT shall pay to the LANDLORD rent at
the rate of $5,038.00 per month, payable in advance subject to
pro-ration in the case of any partial calendar month. All rent shall
be payable without offset or deduction.
During the Second and Third Terms, the TENANT shall pay to the
LANDLORD rent at the rate of $6,820.00 per month, payable in advance
subject to pro-ration in the case of any partial calendar month. All
rent shall be payable without offset or deduction.
4) Paragraph 4 shall be amended to include:
Upon the commencement of the Second Term, Tenant shall pay to
Landlord the additional amount of $1,782.00, which shall be held as
a security for the Tenant's performance as herein provided and
refunded to the Tenant at the termination of the Agreement, without
interest, subject to the Tenant's
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satisfactory compliance and with the conditions hereof. This will be
added to the Deposit paid during the First Term bringing the full
Security Deposit to $6,820.00.
5) Tenant agrees to accept the space in its "as is" condition.
Paragraph 6.1 "ADDITIONAL PROVISIONS" shall be amended to include:
- Landlord has agreed to remove one fabric cubicle from the Manufacturing
Space in advance of occupancy.
- Landlord has agreed to provide a means of securing the sliding door of the
Manufacturing Space to prevent unauthorized access in advance of
occupancy.
- Landlord has agreed to clean the floor of the Manufacturing Space in
advance of occupancy.
- Landlord has agreed to repair at least one air conditioning unit to
provide temperature control for employee comfort within the Manufacturing
Space.
6) This Agreement contains the entire agreement by and between the parties
with respect to the modification of LEASE and may not be amended,
terminated or otherwise modified without the express written consent of
all parties hereto.
7) All other terms and provisions as set forth in the LEASE are hereby
ratified and reaffirmed.
8) This Modification is entered into this 8th day of July, 2005.
LESSEE: LESSOR:
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxx Xxxxxxxxx
---------------------- -------------------------
Xxxxxxx Xxxxxxx Xxxx Xxxxxxxxx, Member
President and CEO 0000 Xxxxxx Xxxxxx, LLC
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