Massachusetts-Cambridge-11 Hurley Street Lease - Eleven Hurley Street Associates and Biopure Corp.
COMMERCIAL LEASE
PREMISES 11 Hurley Street
Cambridge, Massachusetts
LESSOR Eleven Hurley Street Associates
LESSEE Biopure Corporation
TERM 7 years commencing on March 1, 1995
and expiring on February 28, 2002.
AUGUST 29, 1994
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TABLE OF CONTENTS
PAGE
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1. PARTIES AND PREMISES 1
2. TERM 1
3. RENT 1
4. CONSTRUCTION 3
5. UTILITIES 6
6. USE OF LEASED PREMISES 7
7. COMPLIANCE WITH LAWS 7
8. FIRE INSURANCE 7
9. MAINTENANCE OF PREMISES 8
10. ALTERATIONS ADDITIONS 8
11. ASSIGNMENT SUBLEASING 9
12. SUBORDINATION AND NON-DISTURBANCE AND ATTORNMENT 10
13. LESSOR'S ACCESS 11
14. PROPERTY LOSS DAMAGE REIMBURSEMENT 11
15. NON-LIABILITY OF LESSOR 15
16. LESSEE'S LIABILITY INSURANCE 15
17. CASUALTY INSURANCE 16
18. EMINENT DOMAIN 19
19. DEFAULT AND BANKRUPTCY 20
20. NOTICE 22
21. SURRENDER 22
22. LESSOR'S REPRESENTATIONS AND WARRANTIES 23
23. BROKERAGE 25
24. SELF-HELP 25
25. NOTICE OF LEASE 26
26. ENTIRE AGREEMENT 26
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COMMERCIAL LEASE
1. PARTIES AND PREMISES
Eleven Hurley Street Associates, a Massachusetts general partnership having a
principal place of business at 68 Harrison Avenue, Boston, Massachusetts, as
LESSOR, which expression shall include its 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") to contain approximately 23,850 square feet
of gross floor area and parking area to be constructed thereon located at and
known as 11 Hurley Street, Cambridge, Middlesex County, Massachusetts,
consisting of approximately 22,000 square feet of land (the "Premises").
2. TERM
The term of this Lease shall be for eighty-four (84) months following the Rent
Commencement Date, as the same is defined in Section 4 (plus the partial month,
if any, immediately following said date. The end of term is hereinafter referred
to as the Termination Date. The LESSEE shall have the options to extend the term
of this Lease for two (2) periods of five years each.
3. RENT
A. The Premises are leased to the LESSEE on an absolute net basis. The term
absolute net shall mean that the LESSEE shall, in addition
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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,
rental payments at the annual rate of $9.25 per square foot of gross floor area
of the Building or $220,612.50, whichever is lesser, provided, however, that the
base rent shall not commence to accrue until the Rent Commencement Date as
defined in Section 4. In the event the Rent Commencement Date is not on the
first day of the month, then the rent for that month will be pro-rated. 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 19
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 expense of reasonable attorney's fees plus
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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 two (2) periods of five years each. Said option may be exercised by the
LESSEE by giving written notice thereof to the LESSOR six (6) months prior to
the expiration of the original and/or the extended term. The annual rent during
the extended term(s) will be the prior term's annual rent increased by ninety
percent (90%) of the percentage of 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 during the prior
term. 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. All other lease terms and conditions will remain
in full force and effect during the extension term(s).
4. CONSTRUCTION
The Premises shall be improved by the Lessor in accordance with the Approved
Construction Plans set forth on Exhibit B. All costs for architectural services
related to the preparation of these plans, the inspections of the work to be
performed pursuant thereto (the "Work") and the certifications thereof shall be
part of all of the hard and soft costs related to acquisition of the Premises by
the Lessor and the improvement thereof. Hard and
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soft costs shall include, without limiting the generality of the foregoing, land
costs, professional fees, closing costs, testings, interest charges, real estate
taxes, permits, insurance and construction. Any expenditures for such costs in
excess of first mortgage proceeds plus four hundred and fifty thousand dollars
($450,000.00) shall be the sole responsibility of the Lessee.
The parties shall use good faith and best efforts to meet the following schedule
for construction and occupancy:
July 30 Contract Negotiation and Award
August 15 Commencement of Construction
March 1, 1995 Occupancy (the "Estimated Rent Commencement Date").
Subject to the remainder of this Section, Lessor agrees to substantially
complete the Work on the Premises, as determined by Sutphin Associates
Architects, by the Estimated Rent Commencement Date, in accordance with the
Approved Construction Plans. Lessor shall not be required to install any
improvements which are not in conformity with or which are not described or
shown on the Approved Construction Plans. In case of delays due to governmental
regulation, unusual scarcity of or inability to obtain labor or materials,
labor, strikes, lockouts, shutdowns, or inability to obtain materials, casualty
or other causes reasonably beyond Landlords control, the aforesaid Estimated
Rent Commencement Date shall be extended for the period or periods of such
delays. The Premises shall be deemed ready for occupancy
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and substantially completed on the date on which the work described in the
Approved Construction Plans, together with common facilities for access and
service to the Premises, has been certified by the Lessor's architects, Sutphin
Associates, to be complete and ready for occupancy except for items of work and
adjustment of equipment and fixtures which can be completed after occupancy has
been taken without causing substantial interference with Lessee's use of the
Premises (i.e. so-called "punch list" items) (the "Rent Commencement Date").
Lessee may install furnishings and equipment within the Premises after receipt
of the notice of the same being ready for occupancy. Lessor shall complete as
soon as conditions practically permit all punch list items in such manner as
will not increase the cost of completion. Lessor shall permit Lessee access for
installing furnishings in portions of the Premises when it can be done without
material interference with remaining work.
Lessee agrees that no delay by it, or anyone employed by it in performing work
to prepare the Premises for occupancy, shall delay commencement of the term or
the obligation to pay rent, regardless of the reason for such delay or whether
or not it is within the control of Lessee or any such employee.
The Lessee shall be responsible for that portion of the hard and soft costs for
the Work that exceeds first mortgage proceeds plus four hundred and fifty
thousand ($450,000.00) dollars and the same shall be due and payable,
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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.
6. USE OF LEASED PREMISES
The LESSEE shall use the Premises only for the purposes of general office and
researching, developing, processing and manufacturing bio-medical products and
related uses.
7. 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.
8. 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 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).
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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 that of the Approved
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 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.
11. ASSIGNMENT SUBLEASING
The LESSEE shall not assign or sublet the whole or any part of the Premises
without
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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 unless otherwise agreed to in writing by Lessor. 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.
12. 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 the LESSEE, 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
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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 within ten (10) business days hereof.
13. LESSOR'S ACCESS
The LESSOR or agents 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 nine (9) 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 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 shall
adhere to all security measures of the LESSEE designed to protect and keep
confidential all proprietary rights and information of the LESSEE.
14. 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
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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 operations in construction of any private, public
or quasi-public work. If at any time any windows of the Premises 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
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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
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 Rent Commencement Date 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
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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
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 Rent Commencement Date that
LESSOR may have been given access to the Premises for the purpose of making
installations, 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
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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.
15. 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 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.
16. LESSEE'S LIABILITY INSURANCE
The LESSEE shall maintain with respect to the
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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.
17. 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 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." Upon the Rent Commencement
Date, said insurance shall be in the minimum amount of $1,500,000.00. 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.
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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
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.
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
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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 does not elect to terminate this Lease, LESSEE shall at its sole cost
and expense 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 17, and fails to complete such 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 (17), "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.
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18. 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 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,
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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.
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 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
(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
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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 to 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 insured, with
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interest at the rate of ten (10) percent per annum and costs, shall be
paid to the LESSOR by the LESSEE as additional rent. The LESSOR
specifically recognizes the obligation to minimize damages and will use
commercially reasonable efforts to relet the Premises.
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 mailed to the LESSEE by
registered or certified mail, return receipt requested, postage prepaid, or
delivered by Constable or sent to the LESSEE by federal express or express mail
at the following address: Biopure Corporation, 11 Hurley Street, Cambridge, MA
02141, 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, or sent to LESSOR by federal express or express mail, 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 11 Hurley
Street, Cambridge, Massachusetts 02141.
21. 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
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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 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.
22. LESSOR'S REPRESENTATIONS AND WARRANTIES
The LESSOR warrants and covenants that the Premises following the completion of
the construction of the Building, will comply with all applicable zoning and
building laws without further variance or special permit or non-conforming use
exception, 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
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Release Prevention and Response Act, Chapter 21E of the Massachusetts General
Laws) on the Premises.
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 or has the legal right to become
lawfully seized of the Premises and has or will have 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, except
for mortgages of record.
The LESSOR will keep the floors, foundations, external walls, structural
members, roofs, non-laboratory 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 will make all
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
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systems or facilities thereof, as to which LESSEE notifies LESSOR within 6
months following the Rent Commencement Date.
23. BROKERAGE
LESSOR and LESSEE represent that neither was introduced to this Lease
opportunity by any broker.
24. SELF-HELP
If LESSOR shall default in the performance or 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
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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.
25. 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.
26. 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,
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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.
IN WITNESS WHEREOF, the LESSOR and LESSEE have hereunto set their hands
and common seals this 29th day of August, 1994.
Eleven Hurley Street Associates, LESSOR
By /s/ Varney J. Hintlian
----------------------------------------
Varney J. Hintlian, General Partner
By /s/ Frederick J. Hintlian
----------------------------------------
Frederick J. Hintlian, General Partner
Biopure Corporation, General Partner
By /s/ Carl W. Rausch
----------------------------------------
Carl W. Rausch, Chairman
Biopure Corporation, LESSEE
By /s/ Brian A. Lajoie
----------------------------------------
Brian A. Lajoie, Vice President, Finance
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