Massachusetts-Cambridge-37/39 Hurley Street - Tarvis Realty Trust and Biopure Corp.
COMMERCIAL LEASE
PREMISES 37-39 Hurley Street
Cambridge, Massachusetts
LESSOR Tarvis Realty Trust
LESSEE Biopure Corporation
TERM November 1, 1994 through
November 30, 2000
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COMMERCIAL LEASE
1. PARTIES AND PREMISES
Varney J. Hintlian, Frederick J. Hintlian and Tarvis Hintlian, Trustees of
Tarvis Realty Trust u/d/t dated March 24, 1977 filed as Document No. 553974 with
Middlesex South District of the Land Court and noted on the Certificate of Title
No. 151269 filed in Registration Book 886, Page 119, as LESSOR, which expression
shall include their successors and assigns where the context so admits, does
hereby lease to Biopure Corporation, a Delaware corporation having a usual place
of business at 68 Harrison Avenue, Boston, Massachusetts, as LESSEE, which
expression shall include its successors and assigns where the context so admits,
and the LESSEE hereby leases the following described premises: the land
described in Exhibit A attached hereto, together with the building (the
"Building") and parking area thereon located at and known as 37-39 Hurley
Street, Cambridge, Middlesex County, Massachusetts, consisting of approximately
10,970 square feet of gross building area, in their "as is" condition (the
"Premises").
2. TERM
The term of this Lease shall commence on November 1, 1994 and end on November
30, 2000. Said latter date is hereinafter referred to as the Termination Date.
The LESSEE shall have the option to extend the term of this Lease for one (1)
period of five years.
3. RENT
A. The Premises are leased to the LESSEE on an absolute net basis. The term
absolute net
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shall mean that the LESSEE shall, in addition to the monthly rental payments to
the LESSOR, be responsible for payment of real estate taxes, insurance premiums,
utilities and normal maintenance to the building operating systems and equipment
including, but not limited to, the heating plant and air conditioning systems.
The LESSEE will pay to the LESSOR in advance in equal monthly installments the
following rental payments:
<TABLE>
<CAPTION>
YEARS RENT PER SF ANNUAL RENT
<S> <C> <C>
1-2 8.00 $87,760.00
3-4 8.25 $90,502.50
5-6 8.50 $93,245.00
</TABLE>
In the event the rent is not paid by the 10th day of the month for which it is
due, LESSEE agrees to pay a penalty charge of three (3%) percent of the rent
due. This shall also apply for any dishonored check which results in the failure
of LESSOR to receive rent by the 10th day of the month for which rent is due. In
the event that LESSEE makes three (3) or more consecutive late payments of rent
during the term, LESSOR may deem such action a default under Paragraph 18
hereof. If, because of LESSEE'S default under any covenant of this Lease,
including the nonpayment of rent, LESSOR institutes an action for summary
proceedings against Lessee and obtains a judgment against LESSEE, LESSEE agrees
to reimburse the LESSOR for the
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expense of reasonable attorney's fees plus costs and disbursements and the same
shall be included in such judgment as additional rent.
B. The LESSOR grants to the LESSEE the option to extend the term of this Lease
for one (1) period of five years commencing on December 1, 2000 and ending on
November 30, 2005. Said option may be exercised by the LESSEE by giving written
notice thereof to the LESSOR on or before June 1, 2000. The annual rent during
the extended term will be the prior five year average absolute net rent
increased by ninety percent (90%) of the percentage increase in the cumulative
average consumer price index for Boston, Mass.-All Items (1982-84=100) as
published by the United States Department of Labor, Bureau of Labor Statistics
for the prior five year period (October 2000 index/October 1995 index less one x
90% x $8.25 PSF absolute net rent). In the event this price index is not then
published, then the parties shall agree to the use of a substitute index that
reasonably reflects price increases for the Boston area. It is specifically
understood and agreed, however, that the minimum annual rent established
hereunder for the extension term will in no event be less than $8.50 PSF,
absolute net. All other lease terms and conditions will remain in full force and
effect during the extension term.
4. UTILITIES
The LESSOR shall provide all equipment and utilities, including electricity,
heating and plumbing, smoke detectors and fire alarms as
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required by law, water (general and sprinkler use) and sewer; 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 they are usually obtained for
the Premises, or to any cause beyond the LESSOR'S control. The LESSEE shall be
solely responsible for the payment of any and all charges and expenses related
to the provision of the foregoing services, however, any such charges and
expenses billed directly to the LESSOR shall be forwarded immediately to the
LESSEE for payment so as to avoid interruption of service and/or penalties.
5. USE OF LEASED PREMISES
The LESSEE shall use the Premises only for the purposes of researching,
developing, processing and manufacturing bio-medical products and related uses.
6. COMPLIANCE WITH LAWS
The LESSEE acknowledges that no trade or occupation shall be conducted in the
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.
7. FIRE INSURANCE
The LESSEE shall not permit any use of the Premises which will make voidable any
insurance on the Premises or on the contents of the Building or which shall be
contrary to any law or regulation from time to time
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established by the New England Fire Insurance Rating Association, or any similar
body succeeding to its powers. The payment of all premiums related to any
coverage required under this Lease shall be the sole responsibility of LESSEE.
Each policy shall name the LESSOR and the LESSEE as insured parties, as their
interests may appear, and the holder(s) of any outstanding mortgage(s) as the
mortgagee on said policy(ies).
8. MAINTENANCE OF PREMISES
The LESSEE agrees to maintain the interior of the Building (other than walls,
foundations, roofs and other structural elements which are the Lessor's
responsibility) in the same condition as they are at the commencement of the
term or as they may be put in during the term of this Lease, reasonable wear and
tear, damage by fire and other casualty only excepted, and, whenever necessary,
to replace plate glass and other glass therein, acknowledging that the Building
is now in good order and the glass whole. Further, LESSEE shall be responsible
for normal routine maintenance and repairs to the heating, air conditioning and
ventilation systems in the interior of the Building, except when LESSEE is
negligent in properly maintaining the building systems in which event the LESSEE
shall repair or replace, if necessary, said heating, air conditioning or
ventilation system. The LESSEE shall not permit the Premises to be overloaded,
damaged, stripped, or defaced, nor suffer any waste. LESSEE
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shall obtain written consent of LESSOR before erecting any sign on the Premises.
The LESSOR will not unreasonably withhold consent to erect any sign which
conforms with the Cambridge Zoning Ordinance and which does not diminish the
structural integrity of the Building. The LESSEE shall be responsible for the
removal of snow and ice from the sidewalks bordering upon the Premises.
9. ALTERATIONS ADDITIONS
The LESSEE may not make structural and non-structural alterations or additions
to the Premises without the prior written consent of the LESSOR, which consent
shall not be unreasonably withheld or delayed. At lease termination, the LESSEE
may remove all additions, equipment and/or fixtures that it installed,
including, without limitation, all utility upgrades and pipes, ducts, wires and
appurtenant facilities thereof, but in no case will their removal affect the
structural integrity of the Building. 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 Premises for labor and material furnished to LESSEE or claimed
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 structural alterations or additions made by
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the LESSEE shall become the property of the LESSOR at the termination of
occupancy as provided herein. Anything to the contrary not withstanding, the
LESSOR reserves the right to require the LESSEE to remove any or all LESSEE
installed improvements which the LESSOR determines will inhibit the leasing of
the Premises at the termination of this Lease.
10. ASSIGNMENT SUBLEASING
The LESSEE shall not assign or sublet the whole or any part of the Premises
without LESSOR'S prior written consent, which consent shall not be unreasonably
withheld or delayed. 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. Prior to requesting the approval of LESSOR to an
assignment or subletting as hereinbefore provided, LESSEE shall, by notice as
provided herein, advise the LESSOR of all the terms, covenants and conditions of
the LESSEE's proposed sublease or assignment. It is specifically agreed that the
LESSOR may consider the implications of any applicable environmental laws and/or
liabilities when exercising its right to consent to an assignment or subletting.
11. SUBORDINATION AND NON-DISTURBANCE AND ATTORNMENT
LESSEE agrees at the request of LESSOR to subject and subordinate this Lease to
any mortgage(s), or other instruments(s) in the nature of a mortgage, provided
that the holder(s) of such mortgage(s) enters into a non-disturbance and
attornment agreement with
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the LESSOR, binding upon the successors and assigns of the parties thereto, by
the terms of which such holder(s) agrees (i) not to disturb the possession or
other rights of the LESSEE under this Lease so long as LESSEE continues to
perform its obligations hereunder and (ii) in the event of acquisition of title
by such holder(s) or any other person by or through foreclosure proceedings or
otherwise, to accept the LESSEE as lessee of the Premises under the terms and
conditions of this Lease and to perform the LESSOR'S obligations hereunder and
(iii) an agreement by the LESSEE to attorn to any such holder(s) or
successor(s). The LESSOR represents and warrants that the only mortgage on the
Premises is held by The First National Bank of Boston and a Non-Disturbance and
Attornment Agreement by and between LESSEE and the First National Bank of Boston
shall be executed at least ten (10) business days prior to the Commencement of
the term.
12. LESSOR'S ACCESS
The LESSOR or agents or guests of the LESSOR may, at reasonable times, upon the
giving of two (2) business days written notice to LESSEE, enter to view the
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 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 Premises a notice
for letting or selling the Premises or property
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of which the Premises are a part and keep the same so affixed without hindrance
or molestation. It is agreed in making any such entry upon or inspection of the
Premises, the LESSOR and his agents or guests shall adhere to all security
measures of the LESSEE designed to protect and keep confidential all proprietary
rights and information of the LESSEE.
13. PROPERTY LOSS DAMAGE REIMBURSEMENT
(A) Lessor or its agents shall not be liable for any damage to property of
LESSEE or others entrusted to the employees of the Building, nor for the loss of
or damage to any property of LESSEE by theft or otherwise unless caused by
negligence or misconduct attributable to LESSOR. LESSOR or its agents shall not
be liable for any injury or damage to persons or property resulting from fire,
explosion, falling plaster, steam, gas, electricity, electrical disturbance,
water, rain or snow or leaks from any part of the Building or from the pipes,
appliances or plumbing works or from the roof, street or subsurface or from any
other place or by dampness or by any other cause of whatsoever nature, unless
caused by or due to the negligence or misconduct of LESSOR, its agents, servants
or employees or the LESSOR'S failure to observe its obligations hereunder; nor
shall LESSOR or its agents be liable for any such damage caused by other tenants
or persons in the Building or caused by operations in construction of any
private,
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public or quasi-public work. If at any time any windows of the Building are
temporarily (up to twenty-four hours) closed or darkened incident to or for the
purpose of repairs, replacements, maintenance and/or cleaning in, on, to or
about the Building or any part or parts thereof, LESSOR shall not be liable for
any damages LESSEE may sustain thereby and LESSEE shall not be entitled to any
compensation therefor nor abatement of rent nor shall the same release LESSEE
from its obligations hereunder nor constitute an eviction. LESSOR and LESSEE
shall reimburse and compensate each other as the case may be for all reasonable
expenditures made by or damages or fines sustained by either party due to the
non-performance or non-compliance with or breach or failure to observe any term,
covenant or conditions of this Lease upon their respective part to be kept,
observed, performed or complied with. Either party shall give immediate notice
to the other after knowledge thereof in case of fire or accident in the Premises
or in the Building or of defects therein or in any fixtures or equipment of
which they have knowledge.
B. LESSEE shall indemnify and save harmless LESSOR against and from any and all
claims by and on behalf of any person or persons, firm or firms, corporation or
corporations arising from the conduct or management of or from any work or thing
whatsoever done (other than by LESSOR or its contractors or the agents or
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employees of either) in and on the Premises during the term of this Lease and
during the period of time, if any, prior to the Commencement of the term that
LESSEE may have been given access to the Premises for the purpose of making
installations, and will further indemnify and save harmless LESSOR against and
from any and all claims arising from any condition of the Premises due to or
arising from any act or omission or negligence of LESSEE or any of its agents,
contractors, servants, employees, licensees or invitees, and against and from
all costs, expenses and liabilities incurred in connection with any such claim
or claims or action or proceeding brought thereon; and in case any action or
proceeding be brought against LESSOR by reason of any such claim, LESSOR shall
give LESSEE prompt notice thereof and LESSEE, upon notice from LESSOR, agrees
that LESSEE, at LESSEE'S expense, will resist or defend such action or
proceeding and will employ counsel therefor reasonably satisfactory to LESSOR.
LESSEE'S liability under this Lease extends to the acts and omissions of any
subtenant, and any agent, contractor, employee, invitee and licensee of any
subtenant.
C. LESSOR shall indemnify and save harmless LESSEE against and from any and all
claims by and on behalf of any persons or persons, firm or firms, corporation or
corporations arising from the conduct or management of or from any work or thing
whatsoever done (other than by LESSEE or its contractors or the agents or
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employees of either) in and on the PREMISES during the term of this Lease and
will further indemnify and save harmless LESSEE against and from any and all
claims arising from any condition of the Premises due to or arising from any act
or omission or negligence of LESSOR or any of its agents, contractors, servants,
employees, licensees or invitees, and against and from all costs, expenses and
liabilities incurred in connection with any such claim or claims or action or
proceeding brought thereon; and in case any action or proceeding be brought
against LESSEE by reason of any such claim, LESSOR upon notice from LESSEE,
agrees that LESSOR, at LESSOR'S expense, will resist or defend such action or
proceeding and will employ counsel therefor reasonably satisfactory to LESSEE.
LESSOR'S liability under this Lease extends to the acts and omissions of any of
its agents, contractors, employees and invitees.
14. NON-LIABILITY OF LESSOR
If LESSOR or a successor in interest is an individual (which term as used herein
includes aggregates of individuals, such as joint ventures, general or limited
partnerships or associations) such individual shall be under no personal
liability with respect to any of the provisions of this Lease, it being the
intention hereof that if the LESSOR hereto is in breach or default with respect
to its obligations under this Lease, LESSEE shall look solely to the equity of
such LESSOR in the land and Building of which the Premises form a part of and
the
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rent stream arising therefrom for the satisfaction of LESSEE'S remedies for the
collection of a judgment requiring the payment of money by the LESSOR, and no
other property or assets of LESSOR shall be subject to levy, execution or other
enforcement procedure for the satisfaction of LESSEE'S remedies under or with
respect to either this Lease, the relationship of LESSOR or LESSEE hereunder or
LESSEE'S use and occupancy of the Premises.
15. LESSEE'S LIABILITY INSURANCE
The LESSEE shall maintain with respect to the Premises commercial general
liability insurance with a general aggregate limit of not less than
$1,000,000.00 with responsible companies qualified to do business in
Massachusetts and in good standing therein insuring the LESSOR as well as LESSEE
against injury to persons or damage to property. The LESSEE shall deposit with
the LESSOR certificates for such insurance at or prior to the commencement of
the term, and thereafter within thirty (30) days prior to the expiration of any
such policies. All such insurance certificates shall provide that such policies
shall not be cancelled or materially altered without at least thirty (30) days
prior written notice to each insured named therein.
16. CASUALTY INSURANCE
A. The LESSEE, at its expense, shall procure for the benefit of LESSOR and
LESSEE, and shall maintain in full force and effect at all times during the term
of this Lease, "all risks" property insurance in an amount not
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less than the full replacement value of the Building (to be determined annually
by LESSEE and LESSOR) and having a deductible of not greater than $5,000 from a
loss payable for a single casualty and containing a so-called "replacement
costs coverage endorsement" and an "agreed amount endorsement." If the Building
is damaged by fire or other casualty insured against under the policy, LESSEE
and LESSOR shall fully cooperate with one another in processing any claims
related thereto.
B. If during the term of this Lease the Building is damaged or destroyed by fire
or other casualty insured against, and such damage is not substantial, this
Lease shall remain in full force and effect and LESSEE shall be responsible for
effecting any necessary repair or restoration of the Building to the extent of
available insurance proceeds and shall be responsible for the payment of any
deductible related thereto. All insurance proceeds shall be applied to the
payment of costs and expenses incurred in effecting any such repair or
restoration.
C. If during the term of this Lease the Building is substantially damaged or
destroyed by fire or other casualty insured against, LESSEE may elect to
terminate this Lease by giving written notice thereof to LESSOR within thirty
(30) days of the date of such fire or other casualty. If LESSEE does not elect
to terminate this Lease, then this Lease shall remain in full force and effect
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and LESSOR shall, to the extent of available insurance proceeds, promptly
repair, restore and replace the Building to the same condition the Building was
in immediately prior to such fire or other casualty or such other condition as
LESSEE shall approve in writing. If LESSEE elects to terminate this Lease, the
insurance proceeds payable with respect to such fire or other casualty shall be
payable to LESSOR.
D. If during the term of this Lease the Building is partially or substantially
damaged or destroyed by casualty not insured against, or if the available
insurance proceeds will not be sufficient to repair, restore and replace the
Building to the same condition the Building was in immediately prior to such
casualty, LESSEE may elect to terminate this Lease by giving written notice to
LESSOR within thirty (30) days after making such determination. If LESSEE elects
to terminate this Lease, any insurance proceeds payable with respect to such
casualty shall be payable to the LESSOR. If LESSEE does not elect to terminate
this Lease, LESSEE shall at its sole cost and expense, less available insurance
proceeds, repair, restore and replace the Building to the same condition the
Building was in immediately prior to such casualty.
E. If the LESSOR is obligated to repair, restore and replace the Building
pursuant to this Paragraph 16, and fails to complete such
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repair, restoration and replacement within ninety (90) days of the date of such
damage, LESSEE shall have the right to terminate this Lease by giving written
notice to LESSOR.
F. If the Premises are rendered unsuitable for their intended use by reason of
any damage or destruction, a just and proportionate abatement of the rent and
other charges payable by LESSEE under this Lease shall be made until the
Premises are fully repaired, restored and replaced.
G. For the purposes of this Paragraph 16, "substantially damaged" or
"substantial damage" means damage of such a character that the same cannot, in
the ordinary course, reasonably expected to be repaired within thirty (30) days
from the time the repair work would commence.
17. EMINENT DOMAIN
A. If during the term of this Lease the Premises are totally taken by
condemnation, this Lease shall terminate on the date of the taking.
B. If during the term of this Lease any portion of the Premises is taken by
condemnation, LESSEE may elect to terminate this Lease by giving written notice
to LESSOR within thirty (30) days after the nature and extent of the taking have
been finally determined. If LESSEE does not elect to terminate this Lease, this
Lease shall remain in full force and effect and a just and
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proportionate abatement of the rent and other charges payable by LESSEE under
this Lease shall be made.
C. If there is a partial taking of the Premises and this Lease remains in full
force and effect, LESSOR at its cost shall restore promptly what remains of the
Building to a complete architectural unit as close as possible to the condition
of the Building immediately prior to such taking to the extent permitted by the
taking award less the reasonable expenses of LESSOR in connection with the
collection of same and subject to then applicable legal requirements.
D. If this Lease terminates as a result of a taking pursuant to either (A) or
(B) above, LESSEE shall be entitled to receive any taking award attributable to
LESSEE's equipment, fixtures and relocation costs. If this Lease does not
terminate as a result of a taking of the Premises the entire award (less any
portion attributable to LESSEE's equipment, fixtures and relocation expenses)
shall be paid to LESSOR and shall be used to effect the repair, restoration and
replacement of the Premises.
18. 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
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(b) the LESSEE shall be in default of its obligations to the LESSOR under the
terms of either or both of those certain leases between the parties
concerning the premises known and numbered as 22 Spring Street or 31-35
Hurley Street, Cambridge, and such default shall continue beyond any
applicable notice or cure periods provided for in such lease; or
(c) 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 provided that if such default is not susceptible of being
cured within such period of thirty (30) days, the LESSEE shall have such
additional period of time to cure as may be reasonably required to effect
such cure so long as the LESSEE seasonably commences the curative action
and continually and diligently pursues the same; or
(d) 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
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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
reasonable default. The LESSEE shall indemnify the LESSOR against all loss
of rent and other reasonable 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 waiving such default, may remedy such default for the
account and at the expense of the LESSEE. If the LESSOR makes any
reasonable and necessary expenditures or incurs any reasonable and
necessary 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 incurred, with interest at the rate of ten (10) percent per
annum and costs, shall be paid to the LESSOR by the LESSEE as
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additional rent. The LESSOR specifically recognizes the obligation to
minimize damages and will use commercially reasonable efforts to relet the
Premises.
19. NOTICE
Any notice from the LESSOR to the LESSEE relating to the Premises or to the
occupancy thereof, shall be deemed duly served, registered or certified mail,
return receipt requested, postage prepaid, addressed to the LESSEE or delivered
by Constable at the following address: Biopure Corporation, 68 Harrison Place,
Boston, MA 02111, Att: Brian Lajoie. Any notice from the LESSEE to the LESSOR
relating to the leased premises or to the occupancy thereof, shall be deemed
duly served, if mailed to the LESSOR by registered or certified mail, return
receipt requested, postage prepaid, addressed to the LESSOR at such address as
the LESSOR may from time to time advise in writing. All rent and notices shall
be paid and sent to the LESSOR at 20 New Street, East Boston, Massachusetts
02128.
20. SURRENDER
The LESSEE shall at the expiration or other termination of this Lease remove all
LESSEE'S goods and effects from the 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 Premises). LESSEE shall deliver to the
LESSOR the Premises and all keys, locks thereto, and all structural
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alterations and additions made to or upon the Premises, in the same condition as
they were at the commencement of the term, or as they were put in during the
term hereof, reasonable wear and tear and 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
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.
21. LESSOR'S REPRESENTATIONS AND WARRANTIES
The LESSOR warrants and covenants that the Premises comply with all applicable
zoning and building laws without variance, special permit, or non-conforming
use exception, and that use of the Premises for the Permitted Uses will not
violate any of the above-mentioned rules and regulations; that the Premises are
not in a flood zone; and that LESSOR has not unlawfully released or caused an
unlawful threat of release of any hazardous materials or oils (as such terms are
defined in the Massachusetts Oil and Hazardous Material Release Prevention and
Response Act, Chapter 21E of the Massachusetts General Laws) on the Premises.
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LESSOR covenants and warrants to LESSEE that it has full right and lawful
authority to enter into this Lease for the term of this Lease, or any renewal,
extension or option hereof; that LESSOR is lawfully seized of the Premises and
has good and marketable title thereto, free and clear of all tenancies, liens,
encumbrances, encroachments, restrictions, conditions, reservations and
easements, except real estate taxes due but not yet payable, and that the LESSEE
shall and may peacefully and quietly hold and enjoy the Premises throughout the
term hereof without hindrance by the LESSOR or any other person claiming through
or under the LESSOR.
The LESSOR will keep the floors, foundations, external walls, structural
members, roofs, plumbing, electric wires and all utility conduits and
appurtenances thereto located in the Building in good working order, condition
and repair reasonable wear and tear excepted and make major repairs to the
boiler and the heat, ventilation and air conditioning system; and provided,
further, that notwithstanding anything to the contrary set forth in this Lease,
LESSOR agrees, at its cost and expense, to make any repairs or maintenance
required to the Premises or any systems or facilities thereof, as to which
LESSEE notifies LESSOR within 30 days of the commencement of the term.
22. SELF-HELP
If LESSOR shall default in the performance or
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observance of any agreement or condition in this Lease contained on its part to
be performed or observed, or shall default in the payment of any tax or other
charge which shall be a lien upon the Premises; and if LESSOR shall not cure
such default within thirty (30) days after notice from LESSEE specifying the
default (or shall not within said period commence to cure such default and
thereafter prosecute the curing of such default to completion with due
diligence), LESSEE may, at its option, without waiving any claim for damages, at
any time thereafter cure such default for the account of LESSOR. LESSEE in so
doing shall be deemed paid or incurred for the account of LESSOR and LESSOR
agrees to reimburse LESSEE therefor or save LESSEE harmless therefrom, provided
that LESSEE may cure any such default as aforesaid prior to the expiration of
said waiting period (but after said notice to LESSOR) if the curing of such
default prior to the expiration of said waiting period is reasonably necessary
to protect the Building or the Premises or LESSEE'S interest therein or to
prevent injury or damage to persons or property. If LESSOR shall fail to
reimburse LESSEE upon demand for any amount paid for the account of LESSOR
hereunder, LESSEE shall have the right to commence an action against the LESSOR
for said amount and/or to set-off and apply said amount, after notice of an
intent to do so, against the installments of rent or any other amounts due or to
become due to LESSOR from LESSEE under this Lease.
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<PAGE> 26
23. NOTICE OF LEASE
The parties shall execute and cause to be recorded a Notice of Lease in
accordance with the requirements of G.L. c.183, ss.4 within five (5) days
hereof.
24. ENTIRE AGREEMENT
This Lease contains the entire agreement between the parties and all prior
negotiations and agreements are merged herein. Neither LESSOR nor LESSOR'S agent
or representative has made any representation, or statement, or promise upon
which LESSEE has relied regarding any matter or thing relating to the Building,
the land allocated to it, (including the parking area) or the Premises, or any
other matter whatsoever, except as is expressly set forth in this Lease,
including, but without limiting the generality of the foregoing, any statement,
representation or promise as to the fitness of the Premises for any particular
use, the services to be rendered to the Premises or the prospective amount of
any item of additional rent. No rights, easements or licenses are or shall be
acquired by LESSEE by implication or otherwise unless expressly set forth in
this Lease. This Lease may not be changed, modified or discharged, in whole or
in part, orally, and no executory agreement shall be effective to change, modify
or discharge, in whole or in part, this Lease or any obligations under this
Lease, unless such agreement is set forth in a written instrument executed by
LESSOR and LESSEE.
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<PAGE> 27
IN WITNESS WHEREOF, the LESSOR and LESSEE have hereunto set
their hands and seals this 23rd day of August, 1994.
Tarvis Realty Trust, LESSOR
By /s/ Varney J. Hintlian, Trustee
Varney J. Hintlian, Trustee
By /s/ Frederic J. Hintlian, Trustee
Frederic J. Hintlian, Trustee
By /s/ Tarvis Hintlian, Trustee
Tarvis Hintlian, Trustee
Biopure Corporation, LESSEE
By /s/ Brian Lajoie
-------------------------------------------
Brian Lajoie, Vice President, Finance
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