Sublease Between Cendant Operations, Inc.

SUBLEASE


AGREEMENT OF SUBLEASE ("SUBLEASE"), made as of the 20th day of June, 2001, by and between CENDANT OPERATIONS, INC., (by assignment from NetMarket Group, Inc., successor to the NetMarket Company), having its principal office at 1 Campus Drive, Parsippany, New Jersey 07054 ("Landlord") and BIOPURE CORPORATION having an address at 11 Hurley Street, Cambridge, Massachusetts 02141 ("Tenant").


W I T N E S S E T H:


WHEREAS, a lease dated January 16, 1998 (the "Prime Lease"), by and between Robert L. Wolff, Jr., as Trustee of the 58 Charles Street Realty Trust ("Prime Landlord") as landlord and the Landlord herein, as tenant, was entered into for premises situated in Cambridge, MA such premises being commonly known as entire second floor, 58 Charles Street and more particularly described in the Prime Lease (the "Premises"), a copy of which (with financial terms deleted) is attached hereto as EXHIBIT A; and


WHEREAS, the parties hereto have agreed to enter into a sublease of all the Premises.


NOW, THEREFORE, in consideration of the mutual promises and other good and valuable consideration hereinafter contained, the parties hereto agree as follows:


1. (a) THE PREMISES. Landlord does hereby sublease to Tenant and Tenant does hereby sublease from Landlord the remises for the term, at the rental and upon all of the terms and conditions set forth in this Sublease.


(b) PARKING. Tenant shall, provided it is not in default under this Sublease, have the right to use twenty-one (21) Parking Spaces at a cost of One Hundred Twenty-Five and 00/100 ($125.00) Dollars per space per month.


2. TERM. The term of this Sublease shall commence on June 20, 2001 (the "Commencement Date") and end on February 29, 2008, unless sooner terminated as provided herein or in the Prime Lease. The date upon which Tenant shall commence paying rent hereunder shall be July 21, 2001. If Landlord, for any reason whatsoever, cannot deliver possession of the Premises to Tenant on the Commencement Date, this Sublease shall not be void or voidable, nor shall Landlord or its agents be liable to Tenant for any loss or damage resulting therefrom; provided, however, that Tenant shall not be liable for any rent until one month after Landlord delivers possession of the Premises to Tenant and provided further that if Landlord does not deliver the Premises to Tenant on or before July 1, 2001, this Sublease shall be voidable by Tenant by written notice delivered to Landlord by no later than July 5, 2001. If Landlord tenders possession of the Premises to Tenant prior to the Commencement Date and Tenant accepts such possession, then the term of this Sublease and Tenant's obligations hereunder shall commence on the date that it accepts such possession. Except as otherwise expressly set forth in this Section, any failure to deliver possession on the Commencement Date, or delivery of possession prior thereto, shall not in any way affect the obligations of Tenant hereunder or the commencement or expiration date of the term hereof.


3. RENT. (a) Tenant shall pay to Landlord as rent for the use and occupancy of the Premises, without deduction, offset, prior notice or demand, minimum annual rental equal to the following: Three Hundred Twenty-Eight Thousand Eight Hundred ($328,800.00) Dollars.


(b) Rent shall be paid in lawful money of the United States of America to Landlord, in equal monthly installments of Twenty-Seven Thousand Four Hundred and 00/100 ($27,400.00) Dollars in advance, on the first day of each calendar month ("Rent Payment Date") during the term of this Sublease,


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to Cendant Operations, Inc., 1 Campus Drive, Parsippany, New Jersey 07054, Attention: Christine Murdock, Manager Construction Services, or at such other address as Landlord may designate in writing. Should the term of this Sublease begin or end on a day other than the first or last day of a calendar month, all base rent and additional rent, payable hereunder shall be adjusted and prorated on a per diem basis for any such months. Tenant's obligation to pay rent and additional rent shall survive such expiration or termination of this Sublease.


4. ADDITIONAL RENT. Contemporaneously with each monthly payment of fixed rent pursuant to Article 3, Tenant shall pay to Landlord one-twelfth (1/12th) of all additional rent, charges and fees of any nature payable by Landlord to Prime Landlord under the Prime Lease (including, without limitation, the annual Parking Fee, Operating Expenses and Real Estate Taxes) payable by Landlord pursuant to the Prime Lease, as the same may be extended, modified or amended.


5. NET LEASE. (a) This Sublease shall be deemed and construed to be a net lease and Tenant shall accordingly pay to Landlord, absolutely net, the rent free of any deductions or set-offs of any kind. Without limiting the foregoing, Landlord has no obligation to Tenant, whether before or during, the term of this Sublease (a) to make any repairs, alterations, additions, or changes to the Premises, including structural portions thereof, (b) to comply with legal requirements or insurance requirements, (c) to insure or protect the Premises or persons therein or about, (d) to furnish any utilities, heat, water, air conditioning, power of any kind, or any other services, or (e) to pay the real estate taxes, general or special assessments or other taxes related to the use and operation of the Premises or related to any accessory uses of the Premises. If there is any conflict between this Article 5 and any other provision of this Sublease or the Prime Lease, then, as between Landlord and Tenant (without in any way modifying the obligations of the Tenant under the Prime Lease to Prime Landlord) this Article 5 shall control.


(b) Tenant understands and acknowledges that (i) Landlord shall not actually provide any of the services, make any of the repairs, restoration or maintenance or take any of the actions that Prime Landlord has agreed to provide, to make, to take or to cause to be provided or made or taken under the provisions of the Prime Lease and Tenant shall rely upon, and shall look solely to, the Prime Landlord for the provision or making thereof and (ii) Landlord is not making and shall not be responsible for any representations whatsoever which Prime Landlord may have made to Landlord, as tenant, in the Prime Lease. Landlord shall cooperate with Tenant in obtaining services, repairs, restoration or maintenance from Prime Landlord. Prime Landlord shall have repaired all existing roof leaks prior to the Commencement Date.


6. REPAIRS AND MAINTENANCE. Tenant shall at its sole cost and expense, maintain and repair the Premises and the mechanical systems located in the Premises in good order and condition.


7. ALTERATIONS. Tenant shall not make or permit to be made any alterations, additions or improvements (the "Alterations") to the Premises without the prior written consent of Landlord and Prime Landlord which may be granted or withheld in their sole discretion. If Tenant shall desire to make any such Alteration, Tenant shall apply for the consent of Landlord and Prime Landlord and furnish complete plans and specifications for the desired Alterations and the names of the construction contractor(s) to be engaged by Tenant. If Landlord and Prime Landlord shall have granted their consent, Tenant may proceed with any such approved Alterations SUBJECT TO TENANT FULFILLING THE FOLLOWING CONDITIONS:


(i) Subsequent to obtaining the consent of Landlord and Prime Landlord and prior to commencement of construction of the Alterations, Tenant shall deliver to Landlord and Prime Landlord (a) the building permit and a copy of the executed construction contract covering the Alterations and (b) certificates evidencing the existence of workers' compensation insurance covering all persons employed for such work and comprehensive general liability and property damage insurance naming Landlord, Prime Landlord, and Tenant as insureds, with coverage of at least $5,000,000 single limit.


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(ii) All Alterations shall be performed at Tenant's sole cost and expense. Tenant shall keep the Premises free and clear of all liens for any work or material claimed to have been furnished to Tenant or to the Premises on Tenant's behalf. Tenant shall discharge any mechanics lien filed against the Premises or the Building of which the Premises forms a part within thirty (30) days of such filing. Tenant shall indemnify Landlord and Prime Landlord for any and all claims, costs and expenses incurred by Landlord and/or Prime Landlord in connection with any liens. If Tenant fails to discharge such lien, Landlord may, but shall not be obligated to, discharge such lien on Tenant's behalf without determining the validity of the same.


(iii) At Landlord's option, Tenant shall provide, at Tenant's expense, such completion, performance and/or payment bonds.


(iv) Any construction, alteration, maintenance, repair, replacement, installation, removal or decoration undertaken by Tenant in connection with the Premises shall be completed in accordance with the plans and specifications approved by Landlord and Prime Landlord, shall be carried out in a good, workmanlike and prompt manner, shall comply with all applicable statutes, laws, ordinances, regulations, rules, orders and requirements of the authorities having jurisdiction thereof, and shall be subject to supervision by Landlord or its employees, agents or contractors.


(v) If the Alterations which Tenant causes to be constructed result in Landlord or Prime Landlord being required to make any alterations and/or improvements to other portions of the Building in order to comply with any applicable statutes, laws, ordinances, regulations, rules, orders or requirements (e.g., ordinances intended to provide full access to handicapped persons), then Tenant shall reimburse Landlord and/or Prime Landlord, as the case may be, upon demand for all costs and expenses incurred by Landlord and/or Prime Landlord, as the case may be, in making such alterations and/or improvements.


(vi) Any Alterations made by Tenant shall remain on and be surrendered with the Premises upon the expiration or sooner termination of the Term, except Tenant shall upon demand by Landlord, at Tenant's sole cost and expense, forthwith and with all due diligence remove all or any portion of any Alterations made by Tenant which are designated by Landlord to be removed, and Tenant shall forthwith and with all due diligence, and at its sole cost and expense, repair and restore the Premises to their original condition, reasonable wear and tear excepted. Prior to any installation of Alterations, and upon written request therefor by Tenant, Landlord shall notify Tenant if removal of Alterations will be required.


(vii) During the progress of any Alterations, Landlord and Prime Landlord shall have the right to inspect the Premises and Tenant shall afford Landlord access and the opportunity to respect, at all reasonable times.


8. UTILITIES. By the Commencement Date, Tenant shall notify the local utility servicing the Premises that all utilities, electric and water charges should be billed by such utility directly to Tenant. Tenant shall, during the term of this Sublease and at its expense, pay all utility bills payable by Landlord as tenant pursuant to the Prime Lease. If Landlord shall receive a utility bill directly from the local utility company after the Commencement Date and prior to the time the utility meters shall be billed directly to Tenant, then, upon rendition by Landlord of such bill to Tenant, Tenant shall promptly pay to Landlord such charges. If Tenant shall fail timely to pay all or any portion of its utility bills when due and owing, Landlord may render payment to the utility for the account of Tenant and any such sums paid by Landlord, together with Landlord's Costs (defined in Article 23) shall be additional rent and added to the monthly base rent for the following month. The provisions of this Article 8 shall survive the expiration or earlier termination of this Sublease.


9. BROKERAGE. Landlord and Tenant warrant and represent to each other that neither party has dealt with any broker for the procurement of this Sublease, other than Trammell Crow ("Landlord's


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Broker") and Cushman & Wakefield ("Tenant's Broker"). Each party shall defend, indemnify and hold harmless the other party from any loss, cost or expense suffered or incurred and arising out of a breach of the foregoing representation. Landlord agrees to pay a commission to Landlord's Broker pursuant to separate agreement. Landlord shall have no obligation to pay any commission to Tenant's Broker, whose fee, if any, shall be paid by Landlord's Broker.


10. ASSIGNMENT AND SUBLETTING. (a) Tenant may not assign this Sublease or further sublet all or any portion of the Premises without the prior written consent of Landlord and Prime Landlord (in accordance with the provisions of the Prime Lease). Said consent shall not be unreasonably withheld or delayed. In the event of any such assignment or subletting, Tenant shall remain liable for all liabilities of tenant and obligations required on its part to be performed under this Sublease. If this Sublease is assigned, or if the Premises or any part thereof are sublet or occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the rental herein reserved or otherwise required to be paid, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupant as tenant, or a release of Tenant from the further performance by Tenant of the covenants on the part of Tenant herein contained.


(b) If Tenant is a corporation or a partnership, an assignment within the meaning of this Article shall include any one or more sales or transfers, direct or indirect, by operation of law or otherwise, or the creation of a new stock or partnership interest, by which a majority interest of capital stock or partnership interest, as the case may be, shall be vested in a party or parties who are non-stockholders or non-partners as of the date of execution of this Sublease. This Article shall not apply if Tenant's capital stock or partnership interest, as the case may be, is listed on a recognized security exchange.


11. INSURANCE/SUBROGATION WAIVER. (a) At all times while this Sublease is in effect, Tenant agrees to maintain at its expense, with an insurance carrier satisfactory to Landlord the insurance required to be maintained by Tenant under the Prime Lease AND the following:


(i) WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY. Workers' Compensation insurance for statutory limits or a State certificate. Employer's Liability coverage should have limits of not less than $500,000.


(ii) LIABILITY INSURANCE.


1) Occurrence basis commercial general liability insurance, including blanket contractual coverage, for personal injury and property damage of not less than $1 million combined single limit per occurrence.


2) Automobile liability insurance covering all owned, non-owned and hired vehicles, with limits of not less than $1 million combined single limit per occurrence.


3) Excess insurance coverage with a combined single limit of not less than $4 million per occurrence in excess of the underlying liability insurance requirements set forth above.


4) Such other liability insurance as may be required by Landlord.


(iii) PROPERTY INSURANCE.


1) Insurance covering the Tenant's property, equipment, and/or material against loss or damage by fire and the perils commonly referred to as extended coverage, vandalism and malicious mischief, in an amount not less than 90% of replacement cost of the property, equipment and/or material.


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2) Such other property insurance as may be required by Landlord.


(iv) ADDITIONAL INSURANCE REQUIREMENTS.


1) Each insurance policy listed above (except workers' compensation) must name Cendant Operations, Inc. and Prime Landlord as insureds under the policy (Additional Named Insureds). All insurance policies shall be primary to any self-insurance or insurance policies carried by Landlord or Prime Landlord.


2) Tenant agrees to furnish Landlord and Prime Landlord, (i) contemporaneously with Tenant's execution of this Lease AND (ii) on each anniversary of the Commencement Date, with a certificate of insurance evidencing the insurance required by this Section. Such certificate will provide that said insurance may not be canceled or materially modified for any reason, including without limitation, non-payment of premium, except upon at least thirty (30) days prior written notice to Landlord at 1 Campus Drive, Parsippany, New Jersey 07054, Attention: Legal or to Landlord at such other address as Landlord may designate from time to time, in writing. Certificates evidencing the renewal of such policy shall be delivered to Landlord and Prime Landlord no later than thirty (30) days prior to the expiration of such policy. Tenant shall be in material breach of this Sublease if Tenant fails to provide said certificate or if any insurance required hereunder is not procured or is canceled or materially modified. If at any time Tenant fails or neglects to maintain the insurance required pursuant to this Sublease or fails or neglects to deliver evidence of insurance as required pursuant hereto, Landlord may, at its option, but without any obligation to do so, a) terminate this Sublease or b) upon five (5) days prior written notice thereof, effect such insurance as the agent of and at the expense of Tenant, by taking out policies in companies satisfactory to Landlord for a period not exceeding one (1) year in any one policy. Such insurance shall be kept in force as long as necessary to protect Landlord's interest. Landlord shall not be limited in the proof of any damages which it may claim against Tenant, arising out of or by reason of Tenant's failure to provide and keep in force insurance as provided herein, to the amount of the insurance premium or premiums not paid or incurred by Tenant which would have been payable upon such insurance. Landlord shall be entitled to recover as damages for such breach the uninsured amount of any loss or damages and the costs and expense of suit suffered or incurred during any period when Tenant shall have failed or neglected to provide such insurance. The cost of any such insurance procured by Landlord shall be added to the monthly Rent for the following month, and same shall be considered as part of the Rent, and Landlord shall have the same rights and privileges for the collection thereof as if same were Rent.


3) In the event of any loss or damage to the Premises or any property, equipment, fixtures of Tenant, Tenant waives all claims against the Landlord and Prime Landlord for any such loss or damage and Tenant shall look only to any insurance which it has obtained to protect against such loss and Tenant shall obtain, for each policy of such insurance, provisions waiving any claim against Landlord and Prime Landlord for loss or damage.


(v) All policies required herein shall be purchased from insurers licensed in the state in which the Premises are located and shall be rated in the most recent BEST'S INSURANCE REPORTS as having a minimum policyholder's rating of "A-" and a financial category no lower than "VI" ($25 million to $50 million of adjusted policyholder's surplus).


(b) Comprehensive General Liability Insurance, including contractual liability insurance coverage insuring all of Tenant's indemnity obligations under this Sublease except for the indemnity contained in Section 19(h), personal injury, completed operations and Fire Legal Liability Insurance, which covers the Premises and Tenant's operations. The policy shall name Landlord and Prime Landlord as additional insureds for liability, for bodily injury, including death, and property damage, personal injury and other covered loss. The insurance will be primary and not excess, with a combined single limit of not less than One Million ($1,000,000.00) Dollars for bodily injury, including death, and property damage for any one occurrence.


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(c) Noncontributory, "All-Risk" casualty insurance covering all buildings and improvements located on the Premises and trade fixtures, merchandise and other personal property of Tenant from time to time in, on or about the Premises, in an amount not less than one hundred (100%) percent of their actual replacement cost from time to time. Such insurance shall be primary and not excess and shall protect Tenant from damage or other loss caused by fire or other casualty or cause including sprinkler damage, vandalism and malicious mischief.


(d) Tenant hereby waives any and all rights of recovery against Landlord and Prime Landlord and their respective subsidiaries and affiliates, and their respective officers, directors, stockholders, agents and employees relating to Premises or property damage and any resulting business interruption losses, occurring on or arising out of the use, maintenance or occupancy of the Premises, the Prime Lease Premises or the Building whether or not such loss or damage is insured.


(e) This property damage subrogation waiver will preclude the assignment of any insurance claim by way of subrogation to any insurer. Tenant agrees to give immediately to each appropriate insurer written notice, if required, of the terms of this waiver and, if necessary, have said insurance policies properly endorsed to prevent the invalidation of the insurance coverages by reason of this waiver, if required by the insurance policies.


(f) Tenant shall indemnify Landlord and Prime Landlord against any loss or expense, including but not limited to reasonable attorneys' fees, resulting from the failure to obtain such insurance subrogation waiver. This subrogation waiver shall be in addition to, and not in limitation or derogation of, any other waiver or release contained in this Sublease.


(g) Th ...