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Exhibit 10.23
COMMERCIAL LEASE
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THIS LEASE is made on the 23rd day of May, 1997.
The Landlord hereby agrees to lease to the Tenant, and the Tenant hereby agrees
to hire and take from the Landlord, the Leased Premises described below pursuant
to the terms and conditions specified herein:
LANDLORD: Xxxx Xxxxxxxxx as she TENANT(S):Biopure Corporation
is trustee of Xxxxxxxxx Family Trust
Address: c/o Xxxxxx Xxxxxxxxx Address: 00 Xxxxxx Xxxxxx
00 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
1. LEASED PREMISES. The Leased Premises are those premises described as:
vacant lot located at 00-00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
2. TERM. The term of the Lease shall be for a period of 1 year(s)
commencing on the 1st day of Aug. 1997 ending on the 31st day of July, 1998,
unless sooner terminated as hereinafter provided. This term of the lease shall
be renewed on a year to year basis provided neither party has notified the other
party of their intent to terminate the lease with said notice provided at least
sixty (60) days prior to the expiration of any yearly term.
3. RENT. The Tenant agrees to pay the ANNUAL RENT of seven thousand two
hundred and 00/100 Dollars ($7,200.00) payable in equal installments $600.00 in
advance of the first day of each and every calendar month during the full term
of this Lease.
4. RENT ADJUSTMENT. If in any tax year commencing with the fiscal year
1998 (running from Aug. 1st, 1997-July 31st, 1998), the real estate taxes on the
land of which the Leased Premises are a part, are in excess of the amount of the
real estate taxes thereon for the fiscal year (hereinafter called the "Base
Year"), Tenant will pay to Landlord as additional rent hereunder, when and as
designated by notice in writing by Landlord. The "Base Year" is fiscal year 1997
which runs from Aug. 1, 1996 through July 31, 1997 with a "Base Year" amount of
the excess that may occur in each year of the term of this Lease or any
extension or renewal thereof and proportionately for any part of a fiscal year.
5. INTENTIONALLY DELETED.
6. DELIVERY OF POSSESSION. If for any reason the Landlord cannot deliver
possession of the leased property to the Tenant when the lease term commences,
this Lease shall not be void or voidable, nor shall the Landlord be liable to
the Tenant for any loss or damage resulting therefrom. However, there shall be
an abatement of rent for the period between the commencement of the lease term
and the time when the Landlord delivers possession.
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7. USE OF LEASED PREMISES. The Leased Premises may be used only for the
following purpose:
The parking of automobiles ancillary to the tenants other abutting uses.
8. UTILITIES. Except as specified below, the Tenant shall be responsible
for all utilities and services that are furnished to the Leased Premises. The
application for and connecting of utilities, as well as all services, shall be
made by and only in the name of the Tenant: (List exceptions, if any)
NONE
9. CONDITION OF LEASED PREMISE; MAINTENANCE AND REPAIR. The Tenant
acknowledges that the Leased Premises are in good order and repair. The Tenant
agrees to take good care of and maintain the Leased Premises in good condition
throughout the term of the Lease. The Tenant further agrees to be responsible
for the removal of all snow and ice on the premises as needed. The Tenant, at
his expense, shall make all necessary repairs and replacements to the Leased
Premises. The quality and class of all repairs and replacements shall be equal
to the original worth. If Tenant defaults in making such repairs or
replacements, Landlord may make them for Tenant's account, and such expenses
will be considered additional rent.
10. COMPLIANCE WITH LAWS AND REGULATIONS. Tenant at its expense shall...
orders, and regulations, and with all lawful directives of public officers,
which impose any duty upon it or Landlord with respect to the Leased Premises.
The Tenant, at its expense, shall obtain all required licenses or permits for
the conduct of its business within the terms of this lease, or for the making of
repairs, alterations, improvements, or additions. Landlord, when necessary, will
join with the Tenant in applying for all such permits or licenses.
11. ALTERATIONS AND IMPROVEMENTS. Tenant shall not make any alterations,
additions, or improvements to, or install any fixtures on, the Leased Premises
without Landlord's prior written consent. If such consent is given, all
alterations, additions, and improvements made, and fixtures installed, by Tenant
shall become Landlord's property upon the expiration or sooner termination of
this Lease. Landlord may, however, require Tenant to remove such fixtures, at
Tenant's cost, upon the termination hereof.
12. ASSIGNMENT/SUBLETTING RESTRICTIONS. Tenant may not assign this
agreement or sublet the Leased Premises without the prior written consent of the
Landlord. Any assignment, sublease or other purported license to use the Leased
Premises by Tenant without the Landlord's consent shall be void and shall (at
Landlord's option) terminate this Lease.
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13. INSURANCE.
(I) INTENTIONALLY DELETED.
(II) BY TENANT. Tenant shall, at its expense, during the term
hereof, maintain and deliver to Landlord public liability and property damage
with respect to the Leased Premises. Such policies shall name the Landlord and
Tenant as insureds, and have limits of at least $300,000. for injury or death to
any one person and $500,000. for any one accident, and $300,000 with respect to
damage to property. Such policies shall be in whatever form and with such
insurance companies as are reasonably satisfactory to Landlord, and shall
provide for at least ten days' prior notice to Landlord of cancellation.
14. INDEMNIFICATION OF LANDLORD. Tenant shall defend, indemnify, and hold
Landlord harmless from and against any claim, loss, expense or damage to any
person or property in or upon the Leased Premises, arising out of Tenant's use
or occupancy of the Leased Premises, or arising out of any act or neglect of
Tenant or its servants, employees, agents, or invitees. However, the Landlord
shall be solely responsible for any violation of environmental laws in
accordance with Exhibit A.
15. CONDEMNATION. If all or any part of the Leased Premises is taken by
eminent domain, this lease shall expire on the date of such taking, and the rent
shall be apportioned as of that date. No part of any award shall belong to
Tenant.
16. DESTRUCTION OF PREMISES. INTENTIONALLY DELETED.
17. LANDLORD'S RIGHTS UPON DEFAULT. In the event of any breach of this
lease by the Tenant, which shall not have been cured within TEN (10) DAYS, then
the Landlord, besides other rights or remedies it may have, shall have the
immediate right of reentry and may remove all persons and property from the
Leased Premises; such property may be removed and stored in a public warehouse
or elsewhere at the cost of, and for the account of, the Tenant. If the Landlord
elects to reenter as herein provided, or should it take possession pursuant to
any notice provided for by law, it may either terminate this Lease or Landlord
may, from time to time, without terminating this lease, relet the Leased
Premises or any part thereof, for such term or terms and at such rental or
rentals and upon such other terms and conditions as the Landlord in Landlord's
own discretion may deem advisable. Should rentals received from such reletting
during any month be less than that agreed to be paid during the month by the
Tenant hereunder, the Tenant shall pay such deficiency to the Landlord monthly.
The Tenant shall also pay to the Landlord, as soon as ascertained, the cost and
expenses incurred by the Landlord in such reletting.
18. QUIET ENJOYMENT. The Landlord agrees that if the Tenant shall pay the
rent as aforesaid and perform the covenants and agreements herein contained on
its part to be performed, the Tenant shall peaceably hold and enjoy the said
rented premises without hindrance or interruption by the Landlord or by any
other person or persons.
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19. LANDLORD'S RIGHT TO ENTER. Landlord may, at reasonable times, enter the
Leased Premises to inspect it, to make repairs or alterations, and to show it to
potential buyers, lenders or tenants.
20. SURRENDER UPON TERMINATION. At the expiration of the lease term the
Tenant shall surrender the leased property in as good condition as it was in at
the beginning of the term, reasonable use and wear excepted.
21. SUBORDINATION. This lease, and the Tenant's leasehold interest, is and
shall be subordinate, subject and inferior to any and all liens and encumbrances
now and thereafter placed on the Leased Premises by Landlord, any and all
extensions of such liens and encumbrances and all advances paid under such liens
and encumbrances.
22. ADDITIONAL PROVISIONS. The Tenant shall remove any fence and trees
presently on the leased premises and shall pave the entire area of the leased
premises for the purpose of constructing a parking lot. The aforementioned work
shall be performed in a workmanlike manner. If the Landlord fails to permit
renewal of the lease upon request of the Tenant for a second year as provided
for in Paragraph 2 hereof, the Landlord shall be responsible for one half of the
costs of removing the fence and tree and paving the leased premises area.
However, the Landlord shall not be responsible for an amount in excess of
$2,500.00 under the previous sentence. If the lease term extends beyond July 31,
1998, then the Landlord shall not be responsible in any manner for the cost of
removing the fence and trees and paving the entire area of the leased premises.
23. MISCELLANEOUS TERMS.
(I) NOTICES. Any notice, statement, demand or other
communication by one party to the other, shall be given by personal delivery or
by mailing the same, postage prepaid, addressed to the Tenant at the premises,
or to the Landlord at the address set forth above.
(II) SEVERABILITY. If any clause or provision herein shall be
adjudged invalid or unenforceable by a court of competent jurisdiction or by
operation of any applicable law, it shall not affect the validity of any other
clause or provision, which shall remain in full force and effect.
(III) WAIVER. The failure of either party to enforce any of
the provisions of this lease shall not be considered a waiver of that provision
or the right of the party to thereafter enforce the provision.
(IV) COMPLETE AGREEMENT. This Lease constitutes the entire
understanding of the parties with respect to the subject matter hereof and may
not be modified except by an instrument in writing and signed by the parties.
(V) SUCCESSORS. This Lease is binding on all parties who
lawfully succeed to the rights or take the place of the Landlord or Tenant.
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IN WITNESS WHEREOF the parties have set their hands and seals on this _____ day
of __________ 19___.
/s/ Xxxx Xxxxxxxxx By: Biopure Corporation
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Landlord Xxxx Xxxxxxxxx, Tenant
trustee of the Xxxxxxxxx
Family Trust
/s/ X.X. Xxxxxx
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Tenant
Read the instructions and other important information on the package. When using
this form you will be acting as your own attorney since Rediform, its advisors
and retailers do not render legal advice or services. Rediform, its advisors and
retailers assume no liability for loss or damage resulting from the use of this
form.
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EXHIBIT A
ENVIRONMENTAL INDEMNIFICATION
Tenant shall defend, with counsel reasonably approved by
Landlord, all actions against Landlord with respect to, and pay, protect,
indemnify and save harmless, to the extent permitted by law, Landlord from and
against any and all Costs and Expenses arising out of, or claimed to be arising
out of any "Environmental Conditions" (as defined hereinafter). Without limiting
the foregoing, the term Costs and Expenses as used in this Article X shall
include remedial or response costs, experts consultant fees and expenses, and
bodily injury or property damage. Tenant and Landlord agree that "response
costs," as defined in the "Environmental Laws" (as defined hereinafter), shall
not be deemed consequential damages.
For purposes of this Article X, "Environmental Laws" shall
mean any federal, state and/or local statute, ordinance, bylaw, code, rule
and/or regulation, now or hereafter enacted, pertaining to any aspect of the
environment or human health, including, without limitation, Chapter 21C, Chapter
21D, and Chapter 21E of the General Laws of Massachusetts and the regulations
promulgated by the Massachusetts Department of Environmental Protection ("DEP"),
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. Section9601 et seq., the Resource Conservation and Recovery Act
of 1976, 42 U.S.C. Section6901 et seq., the Federal Water Pollution Control Act
and the Federal Clean Air Act.
For purposes of this Article X, "Hazardous Substances" shall
mean any "oil," "hazardous material", "hazardous waste," or "hazardous
substance" (collectively referred to herein as "Hazardous Substances"), as the
foregoing terms (in quotations) are defined in the Environmental Laws.
For purposes of this Article X, "Environmental Conditions"
shall mean any "disposal," "release" or "threat of release" of Hazardous
Substances on, from or about the Demised Premises, other than in compliance with
the Environmental Laws.
Notwithstanding anything in this Lease to the contrary,
Landlord agrees that Tenant shall not be responsible for Environmental
Conditions to the extent that such Environmental Conditions (a) exist as the
commencement of the term of this Lease or (b) result from (i) the actions or
omissions of Landlord either before the commencement of this Lease, during the
term hereof or after the termination of this Lease or (ii) the actions or
omissions of any preceding or succeeding tenant or owner of the Premises.
Landlord further agrees that Tenant shall have no obligation to Landlord under
this Lease for Environmental Conditions arising from the actions or omissions of
any person or entity who or which is not an agent, employee, invitee, contractor
or subtenant of Tenant.
However, if the tenant is notified of any such environmental
condition the landlord shall be notified immediately. Upon such notification by
the tenant to the landlord, the tenant shall cease any then ongoing construction
activities and the landlord shall have the sole responsibility to remedy the
environmental condition, and if the condition is not remedied within sixty (60)
days of said notification, then, at the landlord's option, this lease may
terminate. If the landlord so terminates the lease, then the landlord shall
reimburse the tenant for any and all construction costs expended by the tenant
through the termination date.
Landlord shall defend, with counsel reasonable approved by
Tenant, all actions against Tenant, with respect to, and pay, protect, indemnify
and save harmless, to the extent permitted by law, Tenant from and against any
and all Costs and Expenses of any nature arising out of, or claimed to be
arising out of, any Environmental Conditions to the extent that such
Environmental Conditions (a) exist as of the commencement of the term of this
Lease or (b) result from (i) the actions or omissions of Landlord either before
the commencement of this Lease, during the term hereof or after the termination
of this Lease or (ii) the actions or omissions of any preceding or succeeding
tenant or owner of the Premises. However, if the tenant is notified of any such
environmental condition the landlord shall be notified immediately. Upon such
notification by the tenant to the landlord, the tenant shall cease any then
ongoing construction activities and the landlord shall have the sole
responsibility to remedy the environmental condition, and if the condition is
not remedied within sixty (60) days
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of said notification, then, at the landlord's option, this lease may terminate.
If the landlord so terminates the lease, then the landlord shall reimburse the
tenant for any and all construction costs expended by the tenant through the
termination date. Tenant agrees that Landlord shall not be responsible for any
Environmental Conditions to the extent that such Environmental Conditions result
from the actions or omissions of Tenant, or Tenant's agents, employees,
invitees, contractors or subtenants. Tenant further agrees that Landlord shall
have no obligation to Tenant under this Lease for Environmental Conditions
arising during the term of this Lease from the actions or omissions of any
person or entity who or which is not an agent, employee, contractor or invitee
of Landlord.
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