New Hampshire-Dover-4 Progress Drive Lease Agreement - New England Innovations Corp. and Biopure Corp.
LEASE AGREEMENT
AGREEMENT made this 31st day of March 1995 by and between New England
Innovations, Corp., a New Hampshire corporation with a place of business at 4
Progress Drive, in Dover, New Hampshire, hereinafter "Landlord" and Biopure
Corp. a Delaware corporation with a principal place of business at 68 Harrison
Avenue, Boston, Massachusetts, hereinafter "Tenant".
WHEREAS, Landlord owns a factory building at 4 Progress Drive, Dover,
Strafford County New Hampshire (hereinafter "the factory"); and,
WHEREAS, the Landlord has leased and is now leasing a portion of the
factory to the Tenant; and,
WHEREAS, the Tenant during its occupancy of such portion of the factory
has made substantial improvements thereto, including but not limited to walls,
fixtures, etc. which are highlighted in blue on Exhibit A hereto (hereinafter
called "the improvements"); and,
WHEREAS, the Landlord and Tenant have previously dealt with each other
with respect to the leased premises on an oral basis, but now wish to enter into
a written agreement concerning the leased premises;
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NOW THEREFORE in consideration of the premises and other valuable
consideration, the parties hereto mutually stipulate, covenant and agree as
follows:
1. PROPERTY LEASED. Landlord hereby leases to the Tenant a portion of the
factory, the said portion containing 8,580 square feet, more or less, as shown
by green highlighting on Exhibit A hereto. Additionally, consistent with the
parties existing practice, the Tenant shall have the right to place and store
equipment in a shed containing 1,587 square feet, and a trailer outside of the
factory and on the Landlord's premises. Further, the Tenant shall have the right
to use 68% of the existing parking lot associated with the premises.
2. PURPOSE OF LEASE. Tenant may use the leased premises for manufacturing
purposes, consistent with its existing use of the premises, and in other lawful
purpose. Landlord represents that manufacturing is a permitted use under Zoning
of City of Dover.
3. TERM OF LEASE. This lease shall commence the 1st day of April 1995 and
shall continue for five (5) years from said date (the initial term). Tenant may
renew the initial term of this lease for an additional period of five (5) years
subject to revision of the amount of the rental. As used herein, "the rental
year" shall refer to the year from April 1st through March 31st
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Tenant shall notify Landlord in writing not less than thirty (30) days
prior to the expiration of the initial term of this Lease of his intention to
extend the same.
4. BASE RENT. The Tenant shall pay to Landlord Base Rent, at the rate
described in this paragraph. For the first year of the lease, the Base Rent will
be Thirty-Seven Thousand, Seven Hundred Dollars ($37,700.00), payable in twelve
equal monthly payments of Three Thousand One Hundred Forty-One Dollars and
Sixty-Six Cents ($3,141.66), payable on the 1st of each month, in advance.
The Landlord grants to the Tenant the option to extend the term of this
Lease for one (1) period of five (5) years, commencing on April 1, 2000 and
ending on March 31, 2005. Said option may be exercised by the Tenant by giving
written notice thereof to the Landlord on or before March 1, 2000. The annual
rent during the extended term will be recalculated by the Landlord and Tenant
each obtaining appraisals by certified appraisers for industrial park properties
comparable to the factory in Dover, New Hampshire. This rate averaged together
will be the basis for the new five (5) year Lease. 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 $3.60 PSF, absolute net. All other
Lease terms and conditions will remain in full force and effect during the
extension term.
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5. ADDITIONAL RENT. In addition to the Base Rent described in ss. 4,
above, the Tenant shall pay to the Landlord or the person providing the service,
as specified below, a proportionate share of the following expenses associated
with occupancy of the leased premises. The parties agree that under the terms of
this lease the Tenant occupies 68% of the factory, and that unless expressly
indicated otherwise in this lease, the Tenant shall pay 68% of each of the
following expenses.
<TABLE>
<CAPTION>
Expense Category Tenant's % Due Date of Payment
<S> <C> <C>
Property Taxes 68% 12/1 and 6/1 to City of Dover
Insurance 68% Tenant to bill Landlord for 32% of
total bill
Grass Mowing, etc. 68% Estimate $285.00 for Summer, 1995;
$198.00 due 10/1/95
Snow Removal 68% Estimate of $100 per storm; $68 due
each storm
Water & Sewer 95% Due each month; Tenant
</TABLE>
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<TABLE>
<S> <C> <C>
to bill Landlord for 5% of year's
total
Rubbish Removal(1) 100% Tenant to pay Cate's Rubbish each
month
Electrical Service(2) 100% for Tenant to pay each month
leased
premises
only
</TABLE>
6. DEFAULT. In the event of default in the payment of any rent installment
within thirty (30) days of the due date and in the event of default of any other
covenants contained in this Lease and such default continues for thirty (30)
days after Landlord has/have notified Tenant in writing of the same, then in
that case Landlord shall have the right to peaceably re-enter the leased
premises and terminate this Lease. Tenant shall be liable for all rent and other
charges due to the date of such termination and for Landlord's costs and
attorney's fees in the event eviction proceedings are necessary. Waiver of any
default by Landlords shall not be construed as a waiver of any succeeding
default.
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(1) In consideration of the Tenant paying 100% of the Landlord's cost of
rubbish removal, the Tenant shall be allowed the use of the Landlord's forklift
truck, consistent with the past and existing practice.
(2) The Tenant shall install, at its expense, all meters necessary to
obtain a separate billing, to it, for all electricity it consumes at the
factory.
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7. COVENANTS BY TENANT. Tenant covenants, stipulates and agrees as
follows:
(a) Tenant shall not sublet the premises without the express written
consent of Landlord, which consent shall not be unreasonably withheld or
delayed.
(b) In his use of the leased premises, Tenant shall comply with all
federal, state, and local statutes, ordinances and regulations applicable
to the use of the leased premises. Provided that Tenant shall not be
required to make or pay for any structural changes required to bring the
leased premises into compliance with such statutes, ordinances and
regulations.
(c) Tenant shall not injure or deface the leased premises nor occupy or
use, or permit or suffer the leased premises or any part thereof to be
occupied or used, for any unlawful or illegal business, use or purposes,
nor for any business, use or purposes which is disreputable or
extra-hazardous, nor in such manner as to constitute a nuisance of any
kind. Tenant shall immediately upon discovery of any such unlawful,
illegal, disreputable or extra-hazardous use, take all necessary steps,
legal and equitable, to compel the discontinuance of such use and to oust
and remove sublessees, occupants or other persons guilty of such unlawful,
illegal, disreputable or extra-hazardous use.
(d) With respect to the leased premises, Tenant shall procure any licenses
and permits required by its use of the leased
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premises.
(e) Tenant shall pay for all its heat and utilities including lights and
telephone with respect to the leased premises.
(f) Tenant shall maintain the leased premises in a reasonable and safe
condition and shall allow no waste of any nature whatsoever to occur
thereon and shall return the leased premises at the end of the term in the
same condition as in the beginning excepting reasonable wear and tear
thereon and casualty loss.
(g) Tenant shall provide liability insurance for the leased premises in an
amount not less than $5O,000/$100,000 per person, per occurrence naming
Landlord as additional insured thereon. Said insurance shall not be
cancelable until after ten (10) days written notice to Landlord of
intention to cancel.
8. PREPARATION OF PREMISES FOR TENANT'S USE. The leased premises are
leased to Tenant AS IS, and without warranty, and Tenant agrees, at its expense,
maintenance of the existing heating and air conditioning systems, to repair and
maintain the leased premises for his/their general use. Landlord is responsible
for maintenance and repair of factory, all structural items, and
---------------
RECEIVED
APR 28 1995
By Phil Sidmore
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building systems, and also for common areas.
9. IMPROVEMENTS BY TENANT. Tenant may make such alterations, additions or
improvements to the leased premises as he shall deem necessary or desirable, but
Tenant shall not, without first obtaining the written consent of Landlord, make
any alteration or improvement which would affect or change the structural
character of the leased premises.
10. REMOVAL OF IMPROVEMENTS. Within ten days of the expiration or
termination of this Lease for any cause, the Landlord shall instruct the Tenant
as to whether the Tenant is to remove any alterations, additions and
improvements to the leased premises made by him/them during its occupancy of the
leased premises, both before and after the effective date of this Lease. If the
Landlord instructs the Tenant to remove the improvements, then the Tenant shall
do so and shall restore the leased premises to its condition as at the beginning
of the Tenant's occupancy of the premises, reasonable wear and tear, taking by
eminent domain and damage insurable under the standard New Hampshire fire
insurance policy with extended coverage excepted. If the Landlord instructs the
Tenant to not remove the improvements, or if the Landlord gives the Tenant no
instruction on this point within ten (10) days of the expiration or termination
of the lease, then the Tenant shall not do so, and shall restore the leased
premises to its condition as at the beginning of the term hereof, reasonable
wear and tear, taking
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by eminent domain and damage insurable under the standard New Hampshire fire
insurance policy with extended coverage excepted.
11. ACCESS TO PREMISES. Landlord or his/their representatives shall have
free access to the leased premises at reasonable times after notice to tenant
during normal business hours for the purpose of inspection and for the purpose
of making repairs.
12. SIGNS. Tenant shall not place any signs on the exterior of the leased
premises, unless same shall comply with the Dover Zoning Ordinance.
13. HOLDING OVER. In the event Tenant shall hold over after the expiration
of the term hereof or any renewal, such holding over shall not extend the terms
of this Lease but shall create a month to month tenancy upon all the terms and
conditions of this Lease.
14. EMINENT DOMAIN. In the event that the leased premises shall be
lawfully condemned or taken by any public authority in their entirety, this
Lease shall automatically terminate without further act of either party hereto
on the date when possession of the leased premises shall be taken by such public
authority, and each party hereto shall be relieved of any further obligation to
the other except that Tenant shall be liable for and shall promptly pay to
Landlord any rent then in arrears, or Landlord shall promptly rebate to Tenant a
pro rata portion of any rent paid in
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advance. In the event a portion of the leased premises is so condemned or taken,
Tenant shall have the option of terminating this Lease. If Tenant does not
exercise its option to terminate Lease, this Lease shall continue in effect in
accordance with its terms, and a portion of the rent shall abate equal to the
proportion of the rental value of the leased premises so condemned or taken. In
either of the above events, the award for the property so condemned or taken
shall be apportioned between Landlord and Tenant so that Landlord shall first
receive the then value of their reversionary interest in the leased premises
plus the then value of the future rents due under the terms of this Lease if
such taking had not occurred, and Tenant shall thereafter receive the then value
of his/their leasehold interest including the then value of any machinery,
equipment and appurtenances, if any, constructed or installed by Tenant after
the beginning of the term hereof.
15. DESTRUCTION TO PREMISES: In the event that the leased premises shall
be totally destroyed by fire or other casualty insured against, this Lease shall
automatically terminate without further obligation to the other except for the
rights and obligations of the parties under Paragraphs 7 and 8 hereof, and
except that Tenant shall be liable for and shall promptly pay Landlord any rent
then in arrears or Landlord shall promptly rebate to Tenant a pro rata portion
of any rent paid in advance. In the event the leased premises shall be partially
destroyed, Tenant
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shall have the option of terminating this Lease. If Tenant does not exercise its
option to terminate this Lease, Landlord shall accomplish repairs and
restoration as promptly as practicable from the date of such occurrence; such
repairs and restoration shall, unless otherwise agreed by Landlord and Tenant,
be performed as closely as practicable to the original specifications (utilizing
therefor the proceeds of the insurance applicable thereto without any
apportionment there for damages to the leasehold interest created by this
Lease); and until such repairs and restoration have been accomplished, a portion
of the rent shall abate equal to the proportion of the leased premises rendered
unusable by the damage.
16. REPOSSESSION BY LANDLORD. At the expiration of this Lease or upon the
earlier termination of this Lease for any cause herein provided for, Tenant
shall peaceably and quietly quit the leased premises and deliver possession of
the same to Landlord, together with all alterations, additions and improvements
thereto in good condition excepting only reasonable wear and tear, casualty loss
and eminent domain. Tenant covenants and agrees that at the time of delivery of
possession to Landlord at the expiration of this Lease, any and all alterations,
additions, appurtenances, and improvements constructed or installed on or in the
leased premises at his/their expense after the beginning of the term hereof
shall become the property of Landlord, free and clear of any mortgage, lien,
pledge or other encumbrance or charge.
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17. NOTICES. Any written notice, request or demand required or permitted
by this Lease shall, until either party shall notify the other in writing of a
different address, be properly given if sent by certified or registered first
class mail, postage-prepaid and addressed as follows:
If to Landlord: New England Innovations Corp.
4 Progress Drive
Dover, N.H. 03820
If to Tenant: Biopure Corp.
11 Hurley Street
Cambridge, MA 02141
18. SUCCESSION. This Lease shall be binding upon and inure to the benefit
of the heirs, administrators, successors and assigns of the parties hereto.
19. WAIVER. Any consent, express or implied, by Landlord to any breach by
Tenant of any covenant or condition of this Lease, shall not constitute a waiver
by Landlord of any prior or succeeding breach by Tenant of the same or any other
covenant or condition of the Lease. Acceptance by Landlord of rent or other
payment with knowledge of a breach of or default under any term hereof by
Tenant, shall not constitute a waiver by Landlord of such breach or default.
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20. SITUS. This Lease shall be construed and interpreted in accordance
with the Laws of the State of New Hampshire.
21. COUNTERPARTS. This Agreement may be executed in counterparts, all of
which when taken together shall be deemed one original document.
IN WITNESS WHEREOF, the parties have hereunto set their hands the day and
year first above written.
/s/ Brenda J. Finnegan /s/ Phil Sidmore
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Witness New England Innovations, Inc.,
Landlord
/s/ Jean M. Willis /s/ Brian A. Lajoie
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Witness Biopure Corp., Tenant
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