Massachusetts-Cambridge-Hurley Street Mortgage - Biopure Corp. and Pharmacia & Upjohn Inc.
MORTGAGE
THIS MORTGAGE ("Mortgage") is made October 8, 1996, between BIOPURE
CORPORATION, a Delaware corporation with offices at 11 Hurley Street, Cambridge,
Massachusetts 02141 ("Mortgagor"), and PHARMACIA & UPJOHN, INC., a Delaware
corporation with offices at 7000 Portage Road, Kalamazoo, Michigan 49001
("Mortgagee").
WHEREAS, Mortgagor by its certain Promissory Note of even date
herewith ("Note") has evidenced its obligation to pay to Mortgagee the principal
sum of $9,000,000, with interest and certain other sums, all as more fully
therein provided;
NOW THEREFORE, to secure the payment of all principal, interest and
other sums due or to become due under the Note, the Security Agreement dated the
date hereof between Mortgagor and Mortgagee (the "Security Agreement") or this
Mortgage (collectively, "Debt"), Mortgagor hereby grants, bargains, sells,
conveys, aliens, enfeoffs, confirms, releases, assigns, transfers, pledges and
mortgages unto Mortgagee, all and singular Mortgagor's rights, titles and
interests in and to the following (collectively, "Mortgaged Property"):
ALL THAT CERTAIN leasehold estate ("Leasehold") with respect to that
certain real property located in Middlesex County, Massachusetts, more
particularly described in Exhibit "A" attached hereto and made a part hereof
("Land"), which Leasehold was created pursuant to that certain Commercial Lease
Agreement dated as of August 29, 1994, as amended, between Eleven Hurley Street
Associates and the Mortgagor ("Base Lease") which, or a notice of which, is
recorded with the Middlesex South County Registry of Deeds in Deed Book 24917,
page 436, together with all Mortgagor's rights, credits, deposits, options,
privileges and interests under or pertaining to the Base Lease or the Land;
TOGETHER WITH any and all (a) buildings, structures, fixtures and
improvements now or hereafter located or erected on the Land ("Improvements";
the Leasehold, Land and Improvements are sometimes herein collectively referred
to as "Real Estate"), (b) passages, ways, water courses, easements, rights,
estates, interests, liberties, privileges, tenements, issues, proceeds,
products, profits, condemnation damages, proceeds of insurance, hereditaments
and appurtenances of every type and nature whatsoever to the Real Estate
belonging or appertaining, and claims or demands of any nature whatsoever of
Mortgagor either at law or in equity, in possession or expectancy, of, in and to
the Real Estate, (c) leases, subleases, contracts to lease and other agreements
relating to the use or occupancy of all or any part of the Real Estate now or
hereafter entered into by Mortgagor as landlord or sublandlord (collectively,
"Leases") and the rents, security deposits, issues and profits arising or
issuing therefrom ("Rents"), and (d) building materials, furniture, fixtures,
furnishings, fittings, apparatus, appliances, machinery, equipment, supplies,
inventory and
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personal property of every kind and nature whatsoever, now or hereafter attached
to, placed, installed or located upon, or used or useful in any way with respect
to, the Real Estate and all replacements thereof and modifications and additions
thereto and the proceeds and products thereof (all of the things mentioned in
this clause (d) being sometimes herein collectively called "Personalty");
TO HAVE AND TO HOLD the Mortgaged Property unto Mortgagee forever,
provided that if Mortgagor shall pay Mortgagee the Debt, and shall otherwise
perform all Mortgagor's covenants, agreements and obligations hereunder and
under the Note, then this Mortgage and the estate and interests hereby granted,
shall cease and be void; otherwise this Mortgage shall remain in full force and
effect.
AND Mortgagor covenants and agrees with Mortgagee as follows:
1. Payment of Debt. Mortgagor shall pay when due the Debt in the
manner provided in the Note, the Security Agreement and this Mortgage. The Debt
and each part thereof, if not paid when due, shall bear interest at the Default
Rate specified in the Note ("Default Rate") from the due date until paid in
full.
2. Performance of Covenants. Mortgagor shall observe and perform
faithfully when due each and every obligation, covenant and agreement on
Mortgagor's part to be observed or performed under this Mortgage, the Security
Agreement or the Note.
3. Title. Mortgagor represents and warrants to Mortgagee that: (a)
Mortgagor is and shall at all times remain the legal and beneficial owner of
good and marketable indefeasible title to all of the Mortgaged Property,
including without limitation the Leasehold, (b) there is no limitation on the
right of Mortgagor to encumber the Mortgaged Property, and (c) this Mortgage is
a good and valid first lien on the Mortgaged Property, subject to no other
mortgage, lien, pledge, security interest or encumbrance. Mortgagor covenants to
keep this Mortgage a good and valid first lien on the Mortgaged Property at all
times, and shall warrant and forever defend the title to the Mortgaged Property
unto the Mortgagee against every person claiming or to claim the same or any
part thereof.
4. Base Lease. The Mortgagor shall not sell, assign, modify, amend,
supplement, encumber or surrender the Base Lease without the prior written
consent of Mortgagee in each instance. Mortgagor shall promptly and fully keep,
perform and comply with all the terms, provisions, covenants, conditions and
agreements imposed upon or assumed by the Mortgagor as lessee under the Base
Lease and shall not do, or permit anything to be done, or omit from doing
anything, which will give the landlord under the Base Lease a right to terminate
the Base Lease. If the Mortgagor shall, in any manner, fail in this agreement,
Mortgagee may (but shall not be obligated to) take any action Mortgagee deems
necessary or desirable to prevent or cure any default by Mortgagor in the
performance of or compliance with any of Mortgagor's covenants or obligations
under the Base Lease. Mortgagee may rely
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on any notice of default received from said landlord and may act thereon as
herein provided even though the existence of such default or the nature thereof
may be questioned or denied by Mortgagor or any party acting on behalf of
Mortgagor, and such notice of default shall be conclusive evidence that a
default exists for the purpose of this Section. Mortgagee shall have the right
to enter upon the demised premises and any other property owned or controlled by
Mortgagor which is affected by any of the terms, conditions, provisions,
covenants and agreements of the Base Lease to such extent and as often as
Mortgagee, in its sole discretion, deems necessary or desirable in order to
prevent or cure and such default by Mortgagor. Mortgagee may expend such sums of
money as Mortgagee, in its sole discretion deems necessary for any such purpose,
and all sums so expended shall be deemed part of the debt and shall be secured
by this Mortgage.
5. Fee Title. Mortgagor covenants that so long as any of the Debt
remains unpaid, the Leasehold shall not merge in or with the fee title or in or
with any other estate or interest in the Real Estate, but always shall be
complete, separate and distinct notwithstanding the occurrence of any event or
events by which the Leasehold may become vested in the same person in whom said
fee title is vested.
6. Enforceability of Base Lease. Mortgagor represents and warrants
to Mortgagee that: (a) the Base Lease is valid, subsisting and all the terms
thereof are enforceable, (b) the rents and charges reserved in the Base Lease by
the landlord thereunder, to the extent now or heretofore payable, have been
fully paid and Mortgagor has no knowledge of any default thereunder by either
party thereto and (c) no delinquency exists in respect to the payment of any
tax, assessment, water or sewer rent or charge, or other governmental imposition
of any kind levied or assessed upon the Mortgaged Property.
7. Security Agreement. (A) Without limiting any of the provisions of
this Mortgage, Mortgagor, as debtor, expressly grants to the Mortgagee, as
secured party, a security interest under the Massachusetts Uniform Commercial
Code ("UCC") in all and singular the Personalty and in any portion of the
balance of the Mortgaged Property which does not constitute real estate
(collectively, "Collateral").
(B) In addition to and cumulative of other remedies granted in the
Loan Documents, Mortgagee may, upon the occurrence of any default by Mortgagor
hereunder, proceed under the UCC as to all or any part (as Mortgagee may elect)
of the Collateral, and shall have and may exercise with respect to the
Collateral all the rights, remedies and powers of a secured party under the UCC,
including, without limitation, the right to sell at public or private sale or
sales, or otherwise dispose of, lease or utilize the Collateral and any and all
parts thereof in any manner permitted under the UCC after default by a debtor,
and to apply the proceeds thereof toward payment of any costs and expenses
thereby incurred by Mortgagee, and toward payment of the Debt, in such order and
manner as Mortgagee may elect.
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(C) Among the rights of Mortgagee following a default by Mortgagor
hereunder, and without limitation thereto, Mortgagee shall have the right to
take possession of the Collateral and to enter upon any premises where same may
be situated for such purpose without being deemed guilty of trespass and without
liability for damages thereby occasioned, and to take any action deemed
necessary, appropriate or desirable by Mortgagee, to repair, refurbish or
otherwise prepare the Collateral for sale, lease or other use or disposition as
herein authorized.
(D) To the extent permitted by law, Mortgagor expressly waives any
notice of sale or other disposition of the Collateral, and all other rights and
remedies of a debtor or procedures or formalities prescribed by law relative to
the sale or disposition of the Collateral or the exercise of any other right or
remedy of Mortgagee existing after a default by Mortgagor hereunder.
(E) Mortgagee, upon a default by Mortgagor hereunder, is expressly
granted the right, at its option, to transfer at any time to itself or to its
nominee the Collateral, or any part or parts thereof, as Mortgagee may elect,
and to receive the monies, income, proceeds and benefits attributable or
accruing thereto, and to hold the same as security for the Debt or to apply it
in payment of the Debt, in such order or manner as Mortgagee may elect.
(F) Should Mortgagee elect to exercise its rights under the
provisions of this Section as to part of the Collateral, such election shall not
preclude Mortgagee from exercising the rights and remedies granted by the other
provisions of this Mortgage or by law as to the remaining Collateral.
(G) Mortgagee may, at its election, at any time after delivery of
this Mortgage, use and file executed counterparts hereof as financing statements
under the UCC.
(H) So long as any of the Debt remains unpaid, Mortgagor shall not
execute and there shall not be filed in any public office any financing
statement or statements affecting the Collateral other than financing statements
in favor of Mortgagee hereunder.
(I) Financing statements have been executed by the parties
simultaneously with the execution and delivery hereof, and are intended to be
forthwith filed and recorded in all appropriate filing and recording offices.
Mortgagee is authorized to file and record additional financing statements and
continuations thereof in each jurisdiction where Mortgagee deems it necessary or
desirable, and, at the request of Mortgagee, Mortgagor shall join Mortgagee in
executing one or more additional financing statements in form satisfactory to
Mortgagee, and will pay the cost of filing or recording such financing
statements or executed counterparts of this Mortgage, as financing statements,
in all public offices at any time and from time to time whenever such filing or
recording is deemed by Mortgagee to be necessary or desirable. Mortgagor shall
also pay the cost of filing or recording all such continuation statements deemed
by Mortgagee to be necessary or desirable.
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8. Insurance. (A) Mortgagor shall at all times keep the Mortgaged
Property insured for the protection of Mortgagee against such risks, and with
such coverages, as Mortgagee shall from time to time require, including without
limitation, broad form, comprehensive fire and extended coverage insurance, with
coverage for theft, vandalism and malicious mischief, for the full replacement
value of the Improvements, and rent insurance with respect to the Rents payable
for the one year period following the occurrence of a casualty. All insurance
policies required by this paragraph shall contain: (i) a "New York" or
"Massachusetts" form noncontributory mortgagee clause providing, among other
things, that any payment occasioned by loss thereunder shall be payable to the
holder of this Mortgage alone, and that Mortgagee shall not be subject to
defenses otherwise available to the insurer against the insured thereunder, (ii)
a waiver of subrogation as to Mortgagee's interest, (iii) a waiver of
co-insurance as to Mortgagee, and (iv) if requested by Mortgagee from time to
time, an "owner not in control" endorsement.
(B) Mortgagor shall at all times maintain comprehensive general
public liability insurance, worker's compensation insurance and such other
liability insurance incident to the ownership of the Mortgaged Property as
Mortgagee may from time to time require. All insurance policies required by this
paragraph shall, at Mortgagee's election, name Mortgagee as a co-insured party.
(C) If, at any time or from time to time, the Real Estate is located
in a designated "flood prone" area pursuant to the Flood Disaster Protection Act
of 1973, or any amendment or supplement thereto, then Mortgagor shall obtain
flood insurance and shall take such other action as may be necessary to comply
fully with the National Flood Insurance Program set forth in said Act. Mortgagor
shall comply fully with the National Flood Insurance Act of 1968, as the same
may be amended from time to time, and all other laws, orders, rules, ordinances
and regulations concerning flood insurance, to the extent applicable to the
Mortgaged Property.
(D) Without limitation to the foregoing, the following provisions
shall apply to each and every policy of insurance which Mortgagor is hereby
required to carry: (i) the form, amount and coverage of each policy, and the
insurer under each policy, shall be subject to Mortgagee's approval, (ii)
Mortgagor shall cause each carrier thereof to deliver its certificate of
insurance to Mortgagee, certifying the applicable insurance provisions herein
required, (iii) within five days after Mortgagee's request, Mortgagor shall
deliver to Mortgagee an original copy of each policy, (iv) each policy shall
state that it has been prepaid by Mortgagor (or in lieu of such statement,
Mortgagor shall provide Mortgagee with evidence of such prepayment), and shall
require thirty (30) days' written notice by the carrier to Mortgagee prior to
any cancellation, expiration, amendment or lapse thereof, (v) no policy shall
name a loss payee or beneficiary other than Mortgagor and Mortgagee or any party
named as a loss payee or beneficiary on the date hereof, (vi) at least thirty
(30) days prior to the expiration of each policy, Mortgagor shall provide
Mortgagee with certificates (or copies of policies, if required by Mortgagee as
aforesaid) of renewal or replacement policies, (vii)
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each policy shall be issued by a carrier duly licensed in the state in which the
Real Estate is located, (viii) in the event of loss, or an event which would
constitute loss, under any policy, Mortgagor shall give immediate notice thereof
to Mortgagee, shall promptly make proper proof of loss with the appropriate
insurance carriers and shall provide Mortgagee with copies of same, and
Mortgagee may at its election make proofs of loss if not made promptly by
Mortgagor, and (ix) Mortgagee shall have the right to retain and apply the
proceeds of all insurance to restoration or repair of the property damaged.
(E) If the Mortgaged Property, or any part thereof, is destroyed or
damaged by any cause, Mortgagor shall as soon as possible, at Mortgagor's
expense and regardless of whether insurance proceeds shall be made available for
such purpose, restore, repair, replace and rebuild the Mortgaged Property as
nearly as possible to its value, condition and character immediately prior to
such damage, loss or destruction.
9. Taxes. Mortgagor shall pay, before the same become delinquent,
all taxes, assessments and charges of every nature and by whomever assessed that
may now or hereafter be levied or assessed against, or that by reason of
nonpayment may become a lien upon, the Mortgaged Property, and Mortgagor shall
submit to Mortgagee evidence of the due and punctual payment thereof.
10. Payment of Liens. Mortgagor shall pay at or prior to maturity
thereof, and in strict accordance with the terms thereof, any and all: (a)
claims, liens, encumbrances and sums which are or shall hereafter become or
appear to be an encumbrance, whether senior or subordinate hereto, upon the
Mortgaged Property or any part thereof or interest therein, including but
without limiting the generality of the foregoing, any and all claims for work or
labor performed, or materials or services supplied in connection with any work
upon the Mortgaged Property, and (b) claims, charges and sums, the non-payment
of which could result in a lien, claim or encumbrance on the Mortgaged Property
or which could confer upon a tenant of any part of the Mortgaged Property a
right to recover such claim, charge or sum as prepaid rent or as a credit or
offset against future rent. Mortgagor shall promptly furnish to Mortgagee
receipts evidencing all of the aforementioned payments.
11. Condemnation. All awards made by any public or quasi-public
authority to the owners of the Mortgaged Property by virtue of an exercise of
the right of eminent domain are hereby mortgaged and assigned to Mortgagee, and
Mortgagee is hereby authorized, directed and empowered, at its option, to
collect and receive the proceeds of all such awards from the authorities making
the same and to give proper receipts and acquittances therefor. Mortgagee may,
at its election: (a) apply the net proceeds (i.e., after deducting Mortgagee's
costs of recovering same) of any such award to the discharge of the Debt whether
or not then due and payable, in whatever order and manner Mortgagee elects, or
(b) pay or make available to Mortgagor such net proceeds, upon such terms and
conditions as Mortgagee may elect.
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12. Collection of Rents. Mortgagor hereby irrevocably assigns the
Leases and Rents to Mortgagee and grants to Mortgagee the present and continuing
right, coupled with an interest, to collect the Rents and to enforce the Leases
and to enter and possess the Mortgaged Property for such purposes. However,
Mortgagee hereby conditionally waives such right, and grants to Mortgagor the
revocable license to collect and to enforce the same, provided, however, that
said waiver and license may, after a default by Mortgagor hereunder, be revoked
by Mortgagee at any time by giving notice of such revocation to Mortgagor. All
Rents collected by Mortgagor after a default shall have occurred hereunder shall
be held by Mortgagor as a trust fund for Mortgagee. Following such notice of
revocation, Mortgagee may retain and apply the Rents towards payment of the Debt
in such order and manner as Mortgagee may elect.
13. Condition of Mortgaged Property. Mortgagor shall keep the
Mortgaged Property, and each part thereof, in good order and repair and in good,
safe, first class operating condition. Mortgagor shall make promptly when needed
all necessary repairs, renewals, replacements, additions and improvements to the
Mortgaged Property, and shall not allow the Mortgaged Property, or any part
thereof, to be abandoned, vacated, misused, abused or wasted, or to deteriorate.
Mortgagor shall not, without in each instance the prior consent of Mortgagee,
remove from the Mortgaged Property any fixture, machinery or equipment except
that which is replaced immediately by Mortgagor as part of routine maintenance,
or make any structural or other material alteration to the Mortgaged Property
without in each instance the prior consent of Mortgagee.
14. Compliance with Laws. Mortgagor shall comply with all laws,
orders, ordinances, regulations, restrictions and requirements of all
governmental authorities affecting the Mortgaged Property and the use thereof.
15. No Impairment of Security. Mortgagor shall not do or suffer any
act or forbearance which would impair the security for the Debt or the lien of
this Mortgage on the Mortgaged Property.
16. No Transfers. Mortgagor shall not assign, convey, mortgage,
pledge, transfer, encumber, grant a security interest with respect to or
hypothecate all or any part of the Mortgaged Property or any interest therein.
Any transfer by operation of law of the Mortgaged Property, or any part thereof
or interest therein, shall constitute a default hereunder. If Mortgagor is a
corporation or partnership, any transfer, sale, pledge or other disposition
(whether in a single transaction or a series of transactions) of 50% or more of
the stock of Mortgagor as of the date hereof (if Mortgagor is a corporation) or
of the partnership interests in Mortgagor as of the date hereof (if Mortgagor is
a partnership) shall constitute a default hereunder.
17. Notices. All notices, demands, requests, consents, approvals and
other communications hereunder shall be in writing, and shall be mailed United
States registered or
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certified mail, postage prepaid, or personally delivered, to the parties at
their respective addresses first above noted, or to such other address as a
party may designate by notice to the other party.
18. Mortgage Tax. If any law or ordinance now or hereafter imposes a
tax (including, without limitation, a document or revenue stamp tax) either
directly or indirectly on this Mortgage, Mortgagor shall pay such tax within the
time same is payable to the relevant taxing authority without penalty.
19. Entry. Mortgagee, and its agents, employees, contractors and
representatives, shall have the right to enter upon and to inspect the Mortgaged
Property at all times.
20. Default. The Mortgagor shall be in default hereunder upon the
occurrence of an "Event of Default" as defined in the Note.
21. Acceleration. The unpaid principal indebtedness of the Note,
plus all other sums secured by this Mortgage and the Security Agreement, and all
accrued interest thereon, shall become due and payable immediately, without
notice or demand upon the occurrence of any default hereunder.
22. Remedies. Upon the occurrence of any default by Mortgagor
hereunder, Mortgagee may forthwith exercise, separately, concurrently,
successively or otherwise, any and all rights and remedies available to
Mortgagee pursuant to this Mortgage, the Note, the Security Agreement or
available by law, equity or otherwise, including without limitation (a)
enforcement of payment of the Note, (b) foreclosure of this Mortgage, (c)
institution of action or actions for specific performance of the agreements and
obligations of Mortgagor hereunder, and Mortgagor agrees that all agreements and
obligations of Mortgagor hereunder shall be specifically enforceable by
injunction or any other appropriate equitable remedy, and (d) with or without
taking physical possession of the Mortgaged Property, the collection and receipt
of all income, rents, issues and profits from the Mortgaged Property, including
without limitation the Rents, and after deducting the costs of alterations,
improvements, repairs, operation and leasing, including without limitation
counsel fees, incurred by Mortgagee in doing any of the foregoing or in taking
any of the steps set forth in the immediately following Section hereof, the
application of the net income therefrom to the Debt in such order and manner as
Mortgagee may elect.
23. Possession. Upon any default by Mortgagor hereunder, and in
addition to all other rights and remedies available to it, Mortgagee shall have
the right, with or without judicial process, to enter upon and take possession
of the Mortgaged Property, breaking open doors and locks if it deems necessary
for such purpose without civil or criminal liability for trespass, damages,
forcible entry and detainer or otherwise, and, upon so doing, Mortgagee may, in
its discretion and in addition to all other rights, as mortgagee in possession,
alter,
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improve, repair, complete, change or add to the Mortgaged Property or any part
thereof, and, in the name of Mortgagor or Mortgagee (as Mortgagee may elect),
operate and lease the Mortgaged Property or any part thereof upon such terms and
conditions as Mortgagee shall elect. In doing any of the foregoing, Mortgagee
shall have the right to expend such amounts as Mortgagee shall deem proper, all
of which expenditures, with interest thereon from the dates of such expenditures
until repaid at the Default Rate specified in the Note, shall be payable on
demand of Mortgagee.
24. Action for Possession. The provisions of this Section shall
apply whenever and as often as Mortgagee shall have the right to take possession
of the Mortgaged Property. Mortgagor irrevocably appoints, authorizes and
empowers any attorney of any court of competent jurisdiction to appear as
attorney, and, in addition, as attorney-in-fact (which appointment shall be
deemed coupled with an interest), for Mortgagor, as well as for all persons
claiming under, by or through Mortgagor, to sign an agreement for entering in
any such court an amicable action in ejectment for possession of the Mortgaged
Property, without the necessity of filing any bond and without any stay of
execution or appeal, against Mortgagor and all persons claiming under, by or
through Mortgagor, and/or, as Mortgagee may elect, confess judgment in ejectment
for the recovery by Mortgagee of possession of the Mortgaged Property. For all
such action this instrument, or a copy thereof verified by affidavit of
Mortgagee or anyone on behalf of Mortgagee, shall be a sufficient warrant. Upon
entry of such agreement or judgment, a writ of possession or other appropriate
process to obtain possession of the Mortgaged Property may be issued forthwith,
without any prior writ or proceeding whatsoever, Mortgagor hereby releasing and
agreeing to release Mortgagee and said attorneys from all errors and defects
whatsoever in entering such agreement or judgment or in causing such writ or
process to be issued or in any proceeding thereon or concerning the same,
provided that Mortgagee shall have filed in such action an affidavit made by
someone on Mortgagee's behalf setting forth the facts necessary to authorize the
entry of such agreement or judgment according to the terms of this Mortgage, of
which facts such affidavit shall be conclusive evidence. If for any reason after
any such action has been commenced, the same shall be discontinued, marked
satisfied of record or be terminated, or possession of the Mortgaged Property
remain in or be restored to Mortgagor or anyone claiming under, by or through
Mortgagor, Mortgagee may, whenever and as often as Mortgagee shall have the
right to take possession again of the Mortgaged Property, bring one or more
further amicable actions in the manner herein before set forth to recover
possession of the Mortgaged Property and to enter one or more confessed
judgments as hereinabove provided, and the authority and power above given to
any such attorney shall extend to all such further amicable actions and
judgments. Mortgagee shall have the right to bring such amicable action in
ejectment and confess judgment therein as hereinabove provided whether before or
after an action of mortgage foreclosure is brought or foreclosure or other
proceedings are instituted or concluded upon this Mortgage or the Note.
25. Appointment of Receiver. Upon any default by Mortgagor,
Mortgagee, as a matter of right and without notice, and without regard to the
then value of the Mortgaged
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Property or the interest of Mortgagor therein, shall have the right to apply to
any court having jurisdiction to appoint a receiver or sequestrator of the
Mortgaged Property, and the Mortgagor hereby irrevocably consents to such
appointment and waives notice of any application therefor.
26. Sale. If this Mortgage is foreclosed, or if judgment is entered
against Mortgagor under the Note, the Mortgaged Property may, at the discretion
of Mortgagee, be sold as a whole or in parts or lots, or in several interests or
portions and in any order or manner.
27. Attorneys' Fees. In the event Mortgagee consults attorneys for
the collection of any of the Debt or the enforcement of any of the terms,
covenants or conditions hereof or of the Note, Mortgagor shall pay on demand all
fees, costs and expenses of such attorneys.
28. Mortgagee's Right to Perform Obligations. If Mortgagor shall
default in the performance of any of its agreements or obligations hereunder or
under the Note or the Base Lease, then Mortgagee shall have the right, but not
the obligation, to perform same for Mortgagor and to make all advances of funds
in connection therewith as Mortgagee deems appropriate, in which case all costs
and expenses so incurred by Mortgagor (including without limitation attorneys'
fees) shall be paid by Mortgagor on demand, together with interest at the
Default Rate from the date of incurrence until the date of payment. If Mortgagee
shall elect to perform any such agreement or obligation, then Mortgagee shall be
subrogated to all the rights and remedies of all other persons intended to be or
in fact benefited by the performance of such agreement or obligation. No such
performance by Mortgagee shall be deemed to relieve Mortgagor from any default
hereunder or impair any right or remedy consequent thereon, and the exercise of
the right of performance granted in this Section shall be optional with
Mortgagee and not obligatory, and Mortgagee shall not in any case be liable to
Mortgagor for a failure or refusal (a) to exercise any such right, or (b) to
continue to exercise such right after having commenced such exercise.
29. Waivers. Mortgagor hereby waives and relinquishes the benefits
of any present or future laws: (a) exempting the Mortgaged Property, or any part
thereof, or any other property whatsoever, or of the proceeds arising from any
sale thereof, from attachment, levy, sale or execution, (b) staying of execution
or other process, or (c) requiring valuation or appraisement of the Mortgaged
Property or of any other property levied or sold in execution on any judgment
for the Debt. Mortgagor, so far as permitted by law, waives and will waive the
right to a trial by jury in connection with all suits, actions or proceedings
instituted by the Mortgagee.
30. Cumulative Remedies. All rights and remedies of Mortgagee
hereunder and under the Note and any other security now or hereafter given with
respect to the Debt are separate, distinct and cumulative and in addition to the
rights and remedies provided by law.
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The failure of Mortgagee to insist upon strict performance of any term or
provision hereof shall not be deemed to be a waiver of such term or provision,
or of any right or remedy of Mortgagee.
31. Further Assurances. Mortgagor shall, promptly following the
request of Mortgagee, execute, acknowledge, deliver and record or file such
further documents and do such further acts as Mortgagee may deem necessary,
desirable or proper to carry out more effectively the purposes of this Mortgage
or to protect the lien or the security interest granted herein against the
rights or interests of third persons, and Mortgagor shall pay on demand all
costs connected with any of the foregoing.
32. Estoppel Certificates. Mortgagor, within five days following the
request of Mortgagee from time to time, shall furnish a duly acknowledged
written statement to Mortgagee and to any other person designated by Mortgagee,
setting forth the amount of the Debt secured by this Mortgage and stating either
that no offset or defense exists against the Debt, or if any such offset or
defense is alleged to exist, stating the nature and amount thereof.
33. Invalidity. If any term, provision, or condition of this
Mortgage, the Note or any other security now or hereafter given with respect to
the Debt, or the application thereof to any person or circumstance, shall be
invalid, illegal or unenforceable in any respect, the remainder of this
Mortgage, the Note and such other security shall be construed without such
provision and the application of such term or provision to persons or
circumstances other than those as to which it is held invalid, illegal or
unenforceable, as the case may be, shall not be affected thereby, and each term
and provision of this Mortgage, the Note and such other security shall be valid
and enforced to the fullest extent permitted by law.
34. Headings; Pronouns. The headings of the sections of this
Mortgage are for convenience only and have no meaning with respect to this
Mortgage or the rights or obligations of Mortgagor or Mortgagee. Unless the
context clearly indicates a contrary intent or unless otherwise specifically
provided herein: words used in this Mortgage are used interchangeably in
singular or plural form; "person", as used herein, includes an individual,
corporation, partnership, trust, unincorporated association, government,
governmental authority, or other entity; "Mortgaged Property" includes all and
singular each and every portion of the Mortgaged Property and estate or interest
therein; "holder" means any holder from time to time of the Note; "hereof",
"herein" and "hereunder" and other words of similar import refer to this
Mortgage as a whole; "Mortgage" includes these presents as supplemented or
amended from time to time by written instrument(s) entered into by Mortgagor and
Mortgagee; "Note" includes all written supplements or amendments to the Note
from time to time entered into by Mortgagor and Mortgagee; "Mortgagor" includes
Mortgagor's trustees, successors and permitted assigns; and "Mortgagee" includes
Mortgagee's trustees, successors and assigns. Whenever the context may require,
all pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of pronouns or nouns shall include the
plural and vice versa.
11
<PAGE> 13
35. Amendments. This Mortgage can be changed only by a written
instrument executed by Mortgagor and Mortgagee.
36. Governing Law. This Mortgage and all issues arising hereunder
shall be governed by the laws of the state in which the Real Estate is located.
37. Counterparts. This Mortgage may be executed in any number of
counterparts, each of which shall constitute an original instrument.
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as of the
date first above written.
(CORPORATE SEAL) BIOPURE CORPORATION, as Mortgagor
Attest:
/s/ Maria S. Gawryl By: /s/ Brian A. Lajoie
------------------------------ -----------------------------
Name: Maria S. Gawryl Name: Brian A. Lajoie
Title: V.P. - R&D Title:
PHARMACIA & UPJOHN, INC., as
Mortgagee
By: /s/ Robert G. Kramer
-----------------------------
Name: Robert G. Kramer
Title: Director Corporate Treasury
12
<PAGE> 14
STATE OF :
: SS
COUNTY OF :
On this, the 7th day of October, 1996, before me, a notary public,
the undersigned officer, personally appeared Brian A. Lajoie, who acknowledged
himself to be the VP - Finance of Biopure Corporation, a Delaware corporation,
and that he as such officer, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name of the
corporation by himself as such officer.
In witness whereof, I hereunto set my hand and official seal.
(Notarial Seal)
/s/ Hazel V. Forney
----------------------------
Notary Public
My Commission Expires: Jan 4, 2002
STATE OF :
: SS
COUNTY OF :
On this, the _____ day of__________ 1996, before me, a notary
public, the undersigned officer, personally appeared
____________________________, who acknowledged himself to be the
__________________ of Pharmacia & Upjohn, Inc., a Delaware corporation, and that
he as such officer, being authorized to do so, executed the foregoing instrument
for the purposes therein contained by signing the name of the corporation by
himself as such officer.
In witness whereof, I hereunto set my hand and official seal.
(Notarial Seal)
----------------------------
Notary Public
My Commission Expires:
<PAGE> 15
STATE OF :
: SS
COUNTY OF :
On this, the _____ day of__________ 1996, before me, a notary
public, the undersigned officer, personally appeared
____________________________, who acknowledged himself to be the _______________
of Biopure Corporation, a Delaware corporation, and that he as such officer,
being authorized to do so, executed the foregoing instrument for the purposes
therein contained by signing the name of the corporation by himself as such
officer.
In witness whereof, I hereunto set my hand and official seal.
(Notarial Seal)
----------------------------
Notary Public
My Commission Expires:
STATE OF :
Michigan : SS
COUNTY OF :
Kalamazoo
On this, the 7th day of October, 1996, before me, a notary public,
the undersigned officer, personally appeared Robert G. Kramer, who acknowledged
himself to be the Director Corporate Treasury of Pharmacia & Upjohn, Inc., a
Delaware corporation, and that he as such officer, being authorized to do so,
executed the foregoing instrument for the purposes therein contained by signing
the name of the corporation by himself as such officer.
In witness whereof, I hereunto set my hand and official seal.
(Notarial Seal)
/s/ Carolyn S. Vandermolen
----------------------------
Notary Public
My Commission Expires:
17 January 2001
<PAGE> 16
EXHIBIT "A"
DESCRIPTION OF THE LAND
See Attached
<PAGE> 17
Exhibit A
A certain parcel of land with the buildings thereon situated in Cambridge,
Middlesex County, Massachusetts, being shown as Lot B on a plan entitled "Plan
of Land in Cambridge", dated August 8, 1941, made by M. Waters, C.E., recorded
with the Middlesex South District Registry of Deeds in Book 6546, Page 208,
bounded and described as follows:
NORTHEASTERLY by Spring Street, one hundred ten (110) feet;
SOUTHEASTERLY by Lot A as shown on said plan, two hundred (200) feet;
SOUTHWESTERLY by Hurley Street as shown on said plan, one hundred ten (110)
feet; and
NORTHWESTERLY by Lot C and an unnumbered lot, two hundred (200) feet.
Containing 22,000 square feet according to said plan.
Being the same premises conveyed to Russell H. Peck, Hugh R. Price, M.
Wyllis Bibbins and John L. Davis, Trustees of Early Spring Realty Trust, from F.
S. Willey Co., Inc. by Quitclaim Deed, dated February 1, 1979, recorded with the
Middlesex South District Registry of Deeds in Book 13536, Page 580.
For title reference, see Confirmatory Deed recorded at Middlesex South
Registry of Deeds in Book 25019, Page 024.
<PAGE> 18
CONSENT OF LESSOR
Eleven Hurley Street Associates, being the lessor with respect to that
certain leasehold agreement dated August 19, 1994, and concerning the property
known and numbered as 11 Hurley Street, Cambridge, Massachusetts, hereby
consents to the grant of a security interest in and to said leasehold agreement
by the lessee thereof, Biopure Corporation, to Pharmacia & Upjohn, Inc. to
secure payments of principal and interest on a promissory note in the amount of
$9,000,000.00 and certain other sums, subject to each of the terms, covenants
and conditions set forth in said leasehold agreement. To the extent that there
may be any inconsistency between the terms, covenants and conditions of said
leasehold agreement and the provisions of any and all security agreements that
may be executed by the lessee, the terms, covenants and conditions of said
leasehold agreement shall control. The lessor also acknowledges that said
leasehold agreement is in effect and that there are no defaults of the lessee
existing thereunder.
Executed as an instrument under seal this 7th day of October, 1996
Eleven Hurley Street Associates, Lessor
/s/ Carl W. Rausch
--------------------------------------------
Carl W. Rausch, General Partner
/s/ Varney Hintlian
--------------------------------------------
Varney Hintlian, General Partner