<PAGE>
File No. 70-9417
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM U-1
APPLICATION/DECLARATION
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
NEW ENGLAND ELECTRIC SYSTEM
(Name of company filing this statement)
25 Research Drive
Westborough, Massachusetts 01582
(Address of principal executive offices)
NEW ENGLAND ELECTRIC SYSTEM
(Name of top registered holding company parent of applicant)
John G. Cochrane Kirk L. Ramsauer
Treasurer Associate General Counsel
25 Research Drive 25 Research Drive
Westborough, MA 01582 Westborough, MA 01582
(Names and addresses of agents for service)
<PAGE>
Form U-1 Application/Declaration filed under the Public
Utility Holding Company Act of 1935, File No. 70-9417, is hereby
amended as follows:
Item 1, Description of Proposed Transactions, is amended:
(1) by amending the description of the Service Building
lease to correct the termination date of the initial term as
December 31, 2002.
(2) by adding the following:
In the instant application, New England Electric System
(NEES) is seeking authority to form one or more real estate
subsidiaries that will acquire properties for System utility or
non-utility properties. NEES is seeking authority to acquire
such properties at any time for up to an aggregate purchase price
of $50 million. The total initial investments in the Property
Companies will not exceed the $50 million.
(3) by adding the following:
The headquarters Complex was constructed in two phases, the
first of which covered the two-story office building and the
second of which provided for the six-story office building. Both
buildings were completed and the rental obligations for Phase 1
and Phase 2 are additive.
Item 6, Exhibits and Financial Statements, is amended by adding
the following:
(a) Exhibits
B-1 Lease and Amendments between John Hancock Life
Insurance Company and Massachusetts Electric
Company for North Andover Service Building:
(i) Purchase, Lease and Reimbursement Agreement
dated December 30, 1964
(ii) Lease dated December 30, 1964
(iii) Amendment dated September 6, 1966
(iv) Amendment dated November 30, 1966
(v) Lease Modification Agreement dated January
1, 1967
B-2 Lease and Amendments between John Hancock Life
Insurance Company and New England Power Service
Company for Headquarters Complex:
(i) Supplemented Lease dated October 14, 1966
(ii) Lease Modification Agreement dated January
2, 1970
<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, the undersigned company has duly caused this
Amendment No. 1 to Form U-1 Application/Declaration (Commission's
File No. 70-9417) to be signed on its behalf, as indicated by the
undersigned officer thereunto duly authorized.
NEW ENGLAND ELECTRIC SYSTEM
s/John G. Cochrane
By
John G. Cochrane
Treasurer
Date: December 23, 1998
The name "New England Electric System" means the trustee or
trustees for the time being (as trustee or trustees but not
personally) under an agreement and declaration of trust dated
January 2, 1926, as amended, which is hereby referred to, and a
copy of which as amended has been filed with the Secretary of The
Commonwealth of Massachusetts. Any agreement, obligation or
liability made, entered into or incurred by or on behalf of New
England Electric System binds only its trust estate, and no
shareholder, director, trustee, officer or agent thereof assumes
or shall be held to any liability therefor.
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
- ----------- ----------- ----
B-1 Lease and Amendments between Filed herewith
John Hancock Life Insurance
Company and Massachusetts
Electric Company for
North Andover Service Building:
(i) Purchase, Lease and Reimbursement
Agreement dated December 30, 1964
(ii) Lease dated December 30, 1964
(iii) Amendment dated September 6, 1966
(iv) Amendment dated November 30, 1966
(v) Lease Modification Agreement dated
January 1, 1967
B-2 Lease and Amendments between Filed herewith
John Hancock Life Insurance
Company and New England Power
Service Company for Headquarters
Complex
(i) Supplemented Lease dated
October 14, 1966
(ii) Lease Modification Agreement
dated January 2, 1970
<PAGE>
Exhibit B-1(i)
--------------
AS EXECUTED
MASSACHUSETTS ELECTRIC COMPANY
and
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
PURCHASE, LEASE AND REIMBURSEMENT AGREEMENT
AGREEMENT made as of the 30th day of December, 1964, between
MASSACHUSETTS ELECTRIC COMPANY (hereinafter called the
"Company"), a Massachusetts corporation having its principal
office and place of business at 441 Stuart Street, in the City of
Boston, County of Suffolk, The Commonwealth of Massachusetts, and
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY (hereinafter called
"Hancock"), a Massachusetts corporation with its principal office
and place of business at 200 Berkeley Street, in the City of
Boston, County of Suffolk, The Commonwealth of Massachusetts:
1. OWNERSHIP OF LAND. The Company represents and warrants that it
will at the time of the Land Closing provided for in Paragraph 7
(hereinafter called the "Land Closing"), be the sole owner of the
land and interests in land in the Town of North Andover, County
of Essex, The Commonwealth of Massachusetts, described in
Schedule A to the form of Lease attached as Exhibit A hereto and
referred to in Paragraph 5 (hereinafter sometimes called the
"Lease"), such land and interests in land being hereinafter
referred to as the "Land".
2. PURCHASE OF LAND BY HANCOCK. At the Land Closing the Company
will sell and convey the Land to Hancock and, in reliance on the
representations and warranties of the Company and subject to the
terms, provisions and conditions of this Agreement, Hancock will
purchase the same. The Purchase Price of the Land shall be
determined as set forth in Paragraph 3, and shall be paid by
check on Boston Clearing House funds, payable to the order of the
Company, against delivery to Hancock of appropriate Instruments
of Conveyance as specified in Paragraph 4 hereof.
3. PURCHASE PRICE OF THE LAND. The Purchase Price of the Land
shall be an amount not in excess of $25,000, which shall cover
the cost of the land and the expenses actually incurred (not
otherwise subject to refund or reimbursement pursuant to this
Agreement) by the Company or any of its affiliates (meaning as
used in this Agreement, entities controlling, controlled by or
under common control with the Company) up to the date of the
certificate to be furnished pursuant to this Paragraph 3,
including such allowances or charges for interest, taxes, legal
expenses, title examination, superintendence, insurance,
casualties and other items, incidental to the purchase of the
Land, as would be properly chargeable in connection therewith in
accordance with sound accounting principles to the fixed property
accounts of the Company or any of its affiliates.
<PAGE>
The Company will afford, or cause to be afforded,
representatives of Hancock: full access to all appropriate books
and records of the Company and its affiliates to enable Hancock
to verify the Purchase Price of the Land. Prior to the Land
Closing, the Company will furnish to Hancock a certificate, dated
as of a date within 10 days of the Closing, as to the aggregate
amount of expenses referred to in this Paragraph 3 actually
incurred by the Company and its affiliates to such date which
will cover the cost of the Land and other expenses incidental to
the purchase of the Land, satisfactory in form and substance to
Hancock and signed by the President or a Vice President and
Treasurer or an Assistant Treasurer of the Company under its
corporate seal.
4. CONVEYANCE OF THE LAND TO HANCOCK. The conveyance of the Land
to Hancock at the Land Closing shall be by a good and sufficient
quitclaim deed (having affixed all requisite documentary or
transfer stamps, duly cancelled, and duly certified copies of
all votes or resolutions, if any, of stockholders and directors
requisite to its validity and proper recordation), satisfactory
in substance and form to Hancock and its special counsel. The
deed shall convey to Hancock good and marketable title in fee
simple to the Land (together with all improvements now or at any
time prior to the Land Closing erected, constructed or located on
the Land pursuant to the terms hereof), free and clear of all
mortgages, liens, charges, encumbrances, easements, conditions
and rights of re-entry or forfeiture with only the following
exceptions (hereinafter called "Permitted Exceptions"): (a) the
easements and rights specified in Schedule A to Exhibit A hereto,
(b) applicable zoning laws, if any, (c) real estate taxes
assessed but not then ascertainable and payable, and (d) such
other exceptions appropriate under the circumstances as Hancock
in its discretion may consent to in writing. As part of the
conveyance to Hancock of the Land, the Company shall assign, or
cause to be assigned, to Hancock, by good and sufficient
assignment, satisfactory in substance and form to Hancock and its
special counsel, the right, title and interest of the Company and
each of its affiliates in and to all leases (other than the Lease
referred to in Paragraph 5 hereof), easements, rights-of-way and
agreements, if any, included in the Land or pertaining thereto,
or to utility facilities or services on or in connection with the
Land, exclusive of rights, if any, to the repayment of deposits
or other security or to credits against or rebates of service
charges, and exclusive of those included in Permitted Exceptions
and those incident to the utility business of the Company and/or
solely incident to the ownership and use of other property.
Drafts of such deed and assignments shall be submitted to Hancock
and its special counsel at least 5 days prior to the Land
Closing.
<PAGE>
There shall be no apportionment of rents (including water or
sewer rents), taxes, insurance or other charges at the Land
Closing; all such rents, taxes, insurance and other charges due
with respect to the Land prior to or at the time of the Land
Closing with respect thereto shall be paid, or caused to be paid,
by the Company.
If at the time of the Land Closing the Land shall be or have
been affected by any assessment which is or may become payable in
annual installments, of which the first installment is then a
charge or lien or has been paid, then for the purposes of this
Agreement all unpaid installments of any such assessment due and
payable prior to or at such time shall be paid and discharged, or
caused to be paid and discharged, by the Company prior to or at
such time.
After the Land Closing the Company will also execute and
deliver to Hancock such other deeds, bills of sale, assignments
and other instruments as Hancock from time to time may reasonably
request for the purpose of confirming or further assuring the
full conveyance of the Land and the improvements to be
constructed thereon hereinafter referred to and the consummation
of the transactions contemplated hereby.
The deeds, bills of sale, assignments and other instruments
provided for in this Paragraph 4 are herein referred to
collectively as the "Instruments of Conveyance".
5. LEASE OF THE PROPERTY TO THE COMPANY. At the Land Closing,
concurrently with the conveyance of the Land, Hancock and the
Company will enter into the Lease, which will be dated as of such
Closing, in the form attached hereto as Exhibit A, the Lease to
have attached thereto, as Schedule A, the Schedule attached to
said Exhibit A hereto, with applicable insertions as herein
provided and with such changes, if any, as Hancock and the
Company may by the execution thereof approve, the Lease to
provide for the lease of the Land and all improvements now or
hereafter thereon (which Land as thus improved is hereinafter
referred to as the "Property") by Hancock to the Company.
The Lease shall provide for a preliminary term commencing on
the date of the Land Closing at a net basic rental which shall be
at the annual rate of an amount, to be stated in item (a) of
Section 2 thereof, equal to 5.75% of the Purchase Price of the
Land, and the blanks in items (b) and (c) of Section 2 thereof
shall be filled in appropriately to provide as nearly as may be
for the payment of equal monthly install meets of such rent, with
the rent for any period of less than a whole month being computed
and stated as the proportionate part of a full month's rent,
based on a 30-day month. There shall be inserted in the blank in
the definition of Basic Cost to Lessor in section 51 of the Lease
an amount equal to the Purchase Price of the Land.
<PAGE>
6. NOTICE OF LEASE. Concurrently with the execution of the Lease,
or at any time within 30 days thereafter, Hancock will, at the
request of the Company, join with the Company in the execution
and acknowledgment of a notice of lease evidencing the existence
of the Lease, in such form as will conform with the applicable
laws of Massachusetts and as Hancock and the Company may by such
execution approve, and will take such further action as may be
necessary to permit the recordation of such notice of lease in
the appropriate registry of deeds.
7. CLOSING WITH RESPECT TO THE LAND. The Land Closing, at which
will be closed the transactions contemplated by Paragraphs 2, 4
and 6, shall take place at the office of Hancock, 200 Berkeley
Street, Boston, Massachusetts, at 2:00 P.M., Boston time, on
December 30, 1964 or on such other date, on or before April 1,
1965, as the Company may designate by at least 2 business days'
prior written notice to Hancock and its special counsel. If the
Company shall have failed at the date designated for such Closing
to comply with any of the provisions of this Agreement to be
performed, or caused to be performed, by it on such date, or
fails to designate a date for such Closing as herein provided,
Hancock and the Company shall have no further obligations under
this Agreement with respect to the Land and New Buildings, except
that the Company shall remain liable to pay costs, fees, expenses
and other items in accordance with the provisions of Paragraph 21
hereof incurred prior to April 1, 1965 or the receipt by Hancock
of written notice from the Company stating that it intends so to
fail, whichever is earlier.
8. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to Hancock that:
8.1. Organization, Standing, etc. The Company is a
corporation duly organized and existing in good standing under
the laws of Massachusetts and has the corporate power and
authority to execute and deliver this Agreement, the Instruments
of Conveyance, the Lease and the lease modification agreement
referred to in Paragraph 13 (hereinafter called the "Lease
Modification"), and to incur all obligations provided for it
herein and therein.
8.2. Authorization, etc. The execution and delivery of this
Agreement have been, and the execution and delivery of the
Instruments of Conveyance, the Lease and the Lease Modification
will (prior to such execution and delivery) have been, duly
authorized by all necessary corporate action on the part of the
Company. Performance of, and compliance with the terms,
provisions and conditions, of this Agreement, the Instruments of
Conveyance, the Lease and the Lease Modification by the Company,
do not and will not at the time of delivery of any such document
violate any applicable provision of any law or any judgment,
<PAGE>
decree, rule or order of any court or other governmental
authority, or conflict with, or result in any violation of, or
result in the creation of any mortgage, lien (other than liens
created by the execution and delivery of the Lease), encumbrance
or charge upon any of the properties or assets of the Company
(other than as provided or permitted in the Instruments of
Conveyance and/or the Lease), pursuant to, or constitute a
default under, any charter, by-law, mortgage, indenture,
contract, agreement, instrument, franchise, permit, judgment,
decree, order, statute, rule or regulation applicable to the
Company or to which it is a party or by which it is bound.
8.3. Title to the Property. The Company will convey to
Hancock at the Land Closing good and marketable title of record
in fee simple to the Property, free and clear of all mortgages,
liens, charges, easements, conditions, rights of re-entry or
forfeiture, and encumbrances of every kind, except for Permitted
Exceptions.
8.4. Violation of Legal Requirements. There is no violation,
or note, notice or other record of any violation, of any zoning,
building or other statute, ordinance, regulation or restriction
concerning the Property or the use thereof contemplated by this
Agreement. All such certificates, permits and licenses from each
governmental authority having jurisdiction as are necessary to
allow the occupancy of the Property and to permit the use thereof
for the construction and contemplated use and occupancy of the
New Buildings referred to in Paragraph 10 will have been obtained
and will be currently in effect to the extent such are obtainable
at the time of the Land Closing.
8.5. Consent of Government Authorities. Each such permit,
license, approval, authorization, consent or order on the part of
any governmental authority, Federal, State or other, as is
necessary with respect to the Company and its affiliates in order
that this Agreement, the Instruments of Conveyance, the Lease,
and the Lease Modification will be, when executed, valid, binding
and enforceable, without any change of substance in the terms
thereof, will be obtained and will be in effect prior to and at
each Closing at which such document is to be delivered and each
subsequent Closing if such document is pertinent to the
transactions contemplated by this Agreement.
9. CONDITIONS OF THE LAND CLOSING. Hancock's obligations to
purchase the Land and to enter into the Lease at the Land Closing
shall be subject to the accuracy of the representations and
warranties of the Company contained in this Agreement or
otherwise made by the Company to Hancock in writing in connection
with the transactions contemplated hereby, and to the
fulfillment, to Hancock's satisfaction, prior to or at the Land
Closing, of each of the following applicable further conditions:
<PAGE>
9.1. Survey. Hancock, without expense to it, shall have been
furnished prior to such Closing with three copies of a certified
survey drawing (satisfactory to Hancock) prepared by a registered
surveyor who may be an employee of the Company, of the Property
(other than the buildings to be demolished), showing as of a date
not more than 90 days prior to the Closing the exact location
and, by courses and distances, the exact dimensions of the Land
and locations of any improvements thereon (including, without
limitation, all driveways, walkways, paved areas, tanks,
retaining walls, hydrants, outlying shutoff valves, drainage
systems, utility pipes aud wires, whether above or below ground,
side tracks aud fences) and of all easements, and other like
items, if any, relating to the Land.
9.2. Opinion of Company Counsel. Hancock shall have received
at the Land Closing from the General Counsel or the Corporation
Counsel of the Company, a favorable opinion, dated the date of
the Land Closing and addressed to Hancock, satisfactory in
substance and form to Hancock, and its special counsel, to the
effect that:
(a) The Company is a corporation duly organized and
existing in good standing under the laws of Massachusetts
and, at the times of the execution and delivery of this
Agreement, the Instruments of Conveyance and the Lease,
respectively, the Company had and has good corporate power
and authority to execute and deliver the same and the Lease
Modification, and to incur and perform all obligations
provided for it herein and therein, and such corporate power
and authority are still in effect.
(b) This Agreement has been duly authorized by all
necessary corporate action on the part of the Company, has
been duly executed and delivered by the duly authorized
officers of the Company and constitutes a legal, valid and
binding obligation of the Company.
(c) The Instruments of Conveyance to be delivered at
the Land Closing are in proper form to convey the title they
purport to convey, conform to the provisions of this
Agreement and have been duly recorded or filed for record in
such manner and in such places (specifying the same) as are
required by law or otherwise in order to effect the transfer
of record title to the Property to Hancock and in order to
establish, preserve and protect such title in Hancock. All
documentary, stamp and other taxes and fees payable in
connection with the execution, delivery and recordation of
the Instruments of Conveyance have been paid.
<PAGE>
(d) The Instruments of Conveyance to be delivered at
the Land Closing and the Lease have been duly authorized by
all necessary corporate action on the part of the Company,
have been duly executed and delivered by the duly authorized
officers of the Company and constitute legal, valid, binding
obligations of the Company, respectively, and the Lease is
enforceable, subject to laws of general application
affecting the rights and remedies of landlords and
creditors.
(e) There is no violation or note, notice or other
record of violation of any zoning, building or other
statute, ordinance, regulation or restriction concerning the
Property, or the use thereof contemplated by this Agreement,
of any governmental authority having jurisdiction. All such
certificates, permits and licenses from each governmental
authority having jurisdiction as are necessary to allow the
occupancy of the Land and to permit the use thereof for the
construction and contemplated use and occupancy of the New
Buildings referred to in Paragraph 10 have been obtained and
are currently in effect to the extent such are obtainable at
the time of the Land Closing.
(f ) The Company has conveyed to Hancock good and
marketable title of record in fee simple to the Property as
a single contiguous parcel, free and clear of all mortgages,
liens, charges, easements, conditions, rights of re-entry or
forfeiture and encumbrances of record, other than Permitted
Exceptions, (describing all such Permitted Exceptions and
setting forth the text of all pertinent restrictions,
covenants, conditions or agreements included therein), and
other than such as, in counsel's opinion, may properly be
ignored.
(g) There is no violation of any restriction,
condition, covenant or agreement concerning the Property,
contained in any deed or instrument of record applicable to
the Property, other than such as may have been created or
made by Hancock or persons claiming through Hancock and not
through the Company; and the use of the Property
contemplated by this Agreement will not violate any such
existing restriction, covenant or agreement.
(h) All necessary approvals by governmental authorities
have been obtained for the execution, delivery and
performance of this Agreement, the Instruments of Conveyance
to be delivered at the Land Closing, the Lease and the Lease
Modification. The execution and delivery of, and performance
of and compliance with the terms, provisions and conditions
of, this Agreement, the Instruments of Conveyance, the Lease
and the Lease Modification by the Company do not and will
<PAGE>
not at the time of delivery of any such document violate any
applicable provision of any law or any judgment, decree,
rule or order of any court or other governmental authority,
or conflict with, or result in any violation of, or result
in the creation of any mortgage, lien (other than liens
created by the execution and delivery of the Lease),
encumbrance or charge upon any of the properties or assets
of the Company (other than as provided or permitted in the
Instruments of Conveyance and/or the Lease) pursuant to, or
constitute a default under, any charter, by-law, mortgage,
indenture, contract, agreement or instrument, franchise,
permit, judgment, decree, order, statute, rule or
regulation, applicable to the Company or to which it is a
party or by which it is bound.
Such opinion shall also cover such other matters relating to
the transactions contemplated hereby as Hancock or its special
counsel reasonably may request. Drafts of such opinion shall be
furnished to Hancock and its special counsel prior to the date of
the Land Closing.
9.3. Opinion of Hancock's Special Counsel. Hancock shall
have received at such Closing from Messrs. Sullivan & Worcester,
Boston, Massachusetts, its special counsel, a favorable opinion,
dated the date of such Closing, satisfactory in substance and
form to Hancock, covering the matters specified in: clauses
9.2(a), and 9.2(b) with the addition of the words "in accordance
with its terms" at the end thereof; clause 9.2(c); clause 9.2(d)
with the addition of the words "in accordance with its terms"
after the word "enforceable" therein and of the words "and to any
limitations on the terms thereof imposed by laws of The
Commonwealth of Massachusetts which affect the remedies provided
for in the Lease, which laws do not, in counsel's opinion, make
inadequate the remedies necessary for the practical realization
by Lessor under the Lease of the rights afforded thereby" after
the word "creditors"; clauses 9.2(e), 9.2(f) and 9.2(g); and
clause 9.2(h), but only as to the charters, by-laws, laws,
statutes, rules and regulations therein referred to; and stating
that the title policy furnished to Hancock at the Closing is
satisfactory to such counsel and has been duly executed, issued
and delivered and constitutes a legal, valid and binding
obligation enforceable in accordance with its terms and conforms
to the provisions of this Agreement, and that the opinion
referred to in Paragraph 9.2 is satisfactory in form and
substance and that Hancock is justified in relying thereon. Such
opinion shall state that Hancock is duly qualified and licensed
under the laws of The Commonwealth of Massachusetts to own the
Property and to enter into the Lease and under such laws may,
without limitation of time, lawfully own the Property and be a
party to the Lease, and shall also cover such other matters
relating to the transactions contemplated hereby as Hancock
reasonably may request.
<PAGE>
9.4 Representations and Warranties True at Closing. The
representations and warranties of the Company contained in this
Agreement and otherwise made by it in writing in connection with
the transactions contemplated hereby shall be true and shall be
made again at and as of the time of the Land Closing and shall be
true at and as of such time.
9.5. Compliance with Lease. At the Land Closing no condition
shall exist or event shall have occurred and be continuing which,
if the Lease had been in effect from the date hereof to and
including the date of such Closing, would constitute an Event of
Default as defined in the Lease or which, after notice or lapse
of time, or both, would constitute such an Event of Default.
9.6. Performance. The Company shall have performed and
complied with all terms, provisions and conditions contained
herein to be performed or complied with by it prior to or at the
Land Closing.
9.7. Compliance Certificate. The Company shall have
delivered to Hancock at the Land Closing a certificate, dated the
date of such Closing and signed by its President or a Vice
President and Treasurer or an Assistant Treasurer, under its
corporate seal, making the representations and warranties
required by Paragraph 9.4 hereof and certifying to the
fulfillment of the conditions specified in Paragraphs 9.5 and 9.6
hereof.
9.8. Title Policy. Hancock shall have been furnished, by a
title company selected by it, at the sole expense of the Company,
with an owner's policy of title insurance, dated not later than
the date of the Land Closing, satisfactory in substance and form
to Hancock and its special counsel, insuring to Hancock, with
such re-insurance as Hancock may require, in a net amount not at
any time less than the Basic Cost to Lessor set forth in the
Lease as from time to time modified, reduced by the amount of any
Completion Cost (referred to in Paragraph 16 hereof) that is
included in such Basic Cost to Lessor, plus the amount of all
reimbursements and interest, if any, thereon, made by Hancock to
the Company pursuant to Paragraph 11 not included in such Basic
Cost to Lessor as so reduced, good and marketable title in fee
simple to the Land as a single contiguous parcel, free and clear
of all mortgages, liens or rights to liens, charges,
encumbrances, easements, conditions and rights of re-entry or
forfeiture except for those waived by Hancock and Permitted
Exceptions, describing such exceptions and setting forth the text
of all pertinent covenants and reservations, if any. Drafts or
forms of such title policy shall have been furnished to Hancock
and its special counsel not later than 2 days prior to the date
of the Land Closing.
<PAGE>
9.9 Proceedings and Documents. All applicable proceedings
taken in connection with the transactions contemplated by
Paragraphs 2, 4, 6 and 7 of this Agreement and all applicable
documents incident thereto shall be satisfactory in substance and
form to Hancock and its special counsel, and Hancock shall have
been furnished prior to or at the Land Closing with all such
counterpart originals or certified or other copies of all such
documents, as Hancock may reasonably request; and Hancock shall
be entitled to be satisfied, by certificate or otherwise, (i)
that the business and financial condition of the Company at the
time of such Closing has not materially adversely changed from
that existing at the date of this Agreement, and (ii) that there
is no action, proceeding or investigation by governmental
authorities pending against the Company which (a) would
materially adversely affect the Company's possession of, title to
or use of the Property or the capacity of the Company to perform
its obligations under the Agreement, the Instruments of
Conveyance, the Lease and the Lease Modification, or (b) would
result in any material adverse change in the financial condition
of the Company, or (c) which calls into substantial question the
validity of this Agreement, any of the Instruments of Conveyance,
the Lease, or the Lease Modification or of any action taken or to
be taken by the Company hereunder or thereunder.
10. CONSTRUCTION OF NEW BUILDINGS. The Company will, forthwith
after the Land Closing, diligently prosecute to completion the
construction and equipping of a Central Stores Building, a Local
Stores Building, an Office Building, and a Maintenance Garage and
related facilities on the Land, and the grading, surfacing,
curbing, fencing, landscaping and improvement (including access
roads, driveways, sidewalks, parking facilities for approximately
260 automobiles and outside storage areas) of the Land (all
herein called the "New Buildings"). Except for items having a
cost not exceeding $100,000 in the aggregate and approved in
writing by Hancock, the New Buildings shall be constructed in
substantial accordance with plans and specifications, as from
time to time supplemented (hereinafter called the "Plans and
Specifications"), prepared or to be prepared by or under the
supervision of Louis D. Pierce (hereinafter called the
"Supervising Engineer"), and pursuant to a construction contract,
or contracts, as from time to time supplemented, with a
contractor or contractors approved in writing by Hancock, each of
which contracts will contain a schedule of costs (hereinafter
together called the "Construction Contract"), and performance of
which will be guaranteed by a performance bond or bonds, all of
which documents are subject to approval thereof in writing by
Hancock. Properly identified copies of all Plans and
Specifications shall be furnished to Hancock. Prior to the final
New Buildings Closing referred to in Paragraph 15 no amendment or
supplement of substance to any Plans and Specifications or
Construction Contract or performance bond shall be made or
entered into without the prior written consent of Hancock.
<PAGE>
The buildings included in the New Buildings shall be
furnished with appropriate water, sewage facilities, electricity
and telephone services and shall be occupied promptly after
completion.
11. REIMBURSEMENT FOR COST OF NEW BUILDINGS. At each of the
Closings provided for in Paragraph 16 (herein sometimes called
"New Buildings Closings"), Hancock, in reliance upon the
representations and warranties of the Company contained in
Paragraph 16 and subject to fulfillment of the applicable
conditions specified in Paragraph 17, will reimburse to the
Company a portion of the Cost of the New Buildings, as requested
by the Company pursuant to Paragraph 15, such Cost to be
determined as set forth in Paragraph 12, and will deliver to the
Company its check on Boston Clearing House funds payable to the
order of the Company in an amount equal to the portion of such
Cost to be reimbursed. Hancock's obligation to reimburse the
Company for the Cost of the New Buildings shall terminate on the
date the Lease, as it may have been renewed from time to time,
terminates as therein provided. As to all amounts payable to
Hancock by the Company hereunder or under the Lease which are
reimbursable to the Company as items of the Cost of the New
Buildings, such as rentals, interest and real estate taxes
payable by Hancock during the preliminary term of the Lease, the
Company may, so long as it is entitled to reimbursement thereof,
satisfy any obligation to pay the same by delivering to Hancock a
memorandum reciting payment to Hancock thereof and acknowledging
receipt of a reimbursement therefor as of the date payment
thereof is due, and Hancock shall then be under no further
obligation to reimburse the Company for such amounts covered by
such memorandum.
12. COST OF THE NEW BUILDINGS. The "Cost of the New Buildings"
shall mean at any time the lesser of (a) $3,000,000 reduced by an
amount equal to the Purchase Price of the Land, or (b) if such
Cost is being determined prior to the establishment of any
Completion Cost (as defined in Paragraph 15), the sum of the
costs actually incurred (not subject to refund or reimbursement
otherwise than pursuant to this Agreement) up to such time (i)
for the design (including architects' fees and other costs of
preparation of the Plans and Specifications), engineering, legal,
accounting and site preparation work (including demolition and
removal of any buildings or other improvements on the land
relating to preparation of the site), (ii) for construction and
completion of the New Buildings (including, without limiting the
foregoing, all mechanical work, partitions and other built-in
facilities, plumbing, heating, lighting, air conditioning,
sprinkler and ventilating systems, annunciator or call systems,
watchmen's protective systems and other internal electrical
systems and the draining, sewage disposal, grading, paving,
parking area development, surfacing, curbing, fencing,
landscaping, installation of tanks, installation of external
<PAGE>
electrical systems including flood lights, and retaining walls
and other improvements made to or benefiting the Property all
substantially in accordance with the Plans and Specifications,
(iii) for interest on reimbursements to be made by Hancock
pursuant to Paragraph 14, for taxes (including, without
limitation, real estate taxes on the Property incurred during the
preliminary term of the Lease), for legal, engineering,
accounting, superintendence and architectural services, and for
insurance (title and other) and casualties and any other
expenditures related to or during construction, (iv) for
equipment used or procured for use in connection with the
operation, maintenance or protection of the New Buildings, all of
which would be properly chargeable to fixed property accounts of
the Company or any of its affiliates, (v) for insurance during
the preliminary term of the Lease required by Section 19 of the
Lease to be carried by the Company, and (vi) for other items of
the foregoing costs (the cost of which other items is not to
exceed $100,000 in the aggregate and shall have been approved in
writing by Hancock), together with payments described in
Paragraph 21 and the amounts of all rentals during the
preliminary term of the Lease which have been paid or are then
due, or (c) if such Cost is being determined after the
establishment of any Completion Cost, the sum of the costs set
forth in (b) above (whether incurred before or after the Lease
Modification Date), other than any rentals of any character
falling due after the Lease Modification Date, plus the amount of
any Completion Cost and less the amount of the costs set forth in
(b) above incurred after the Lease Modification Date; provided
that in determining the sum described in clause (b) or (c) of
this Paragraph 12, no cost shall be included which was included
in the certificate required to be furnished pursuant to Paragraph
3.
Prior to each New Buildings Closing other than any interim
Closing, as defined in Paragraph 14, at which the only
reimbursement is to be for rent and interest in accordance with
Paragraphs 5 and 14, the Company will furnish to Hancock a
certificate (hereinafter referred to as a "New Buildings Closing
Certificate"), dated as of a date within 10 days of such Closing,
as to (x) the amount of costs actually incurred or to be incurred
by the Company, not included in a previous certificate, to be
reimbursed by Hancock representing Cost of the New Buildings
pursuant to clause (b) or (c), as then or theretofore
appropriate, of this Paragraph 12 and (y) the aggregate of such
costs included in said certificate and all prior certificates
under this Paragraph 12 and all reimbursements for rent and
interest not included in said certificate or prior certificates,
said certificate to be satisfactory in form and substance to
Hancock, and signed by the President or a Vice President and
Treasurer or an Assistant Treasurer of the Company under its
corporate seal, and approved and certified in writing by the
Supervising Engineer as to construction items under the
Construction Contract. The Company will, from time to time,
<PAGE>
afford representatives of Hancock full access to all appropriate
books and records of the Company to enable Hancock to verify to
its satisfaction that the aggregate costs included in New
Buildings Closing Certificates do not exceed the items of the
Cost of the New Buildings incurred or to be incurred by the
Company in connection therewith up to the date of Closing in
respect of which a certificate is to be furnished pursuant to
this Paragraph 12.
13. MODIFICATION OF LEASE. At the "Lease Modification Date",
which shall be December 2,1966, or the date of the final New
Buildings Closing, if such be earlier, Hancock and the Company
will enter into the Lease Modification with respect to the Lease,
in the form of Exhibit B hereto, dated as of such Lease
Modification Date, to include modifications of the Lease as
follows:
The annual basic rental provided for the initial term in
section 2 of the Lease shall be stated in item (x) thereof as an
amount per annum during each year of the initial term of the
Lease equal to $270,800 less $6,160 or a proportionate part
thereof for each $100,000 or part thereof by which the Basic Cost
to Lessor is less than $3,000,000; and the blank in item (y)
thereof shall be filled in appropriately to provide for the
payment of equal monthly installments of such rent.
The Lease Modification shall be entered into on the Lease
Modification Date at a "Lease Modification Closing" which shall
take place at the office of Hancock, 200 Berkeley Street, Boston,
Massachusetts, at 11:00 A.M, Boston time.
Concurrently with the execution of the Lease Modification,
or at any time within 30 days thereafter, Hancock will, at the
request of the Company, join with the Company in the execution
and acknowledgment of a notice of lease evidencing the Lease as
modified by the Lease Modification, in such form as Hancock and
the Company may by such execution approve, and will take such
further action as may be necessary to permit the recordation of
such notice of lease in the appropriate registry of deeds.
14. INTEREST ON INTERIM REIMBURSEMENTS. The Company will pay to
Hancock on the first day of each calendar month an amount equal
to interest at the rate of 5.75% per annum on the amount of each
reimbursement made by Hancock to the Company at each Closing
(herein sometimes called an "Interim Closing") provided for in
Paragraph 15, other than a final such Closing or such a Closing
occurring on or subsequent to the Lease Modification Date, for
the period from the date of the interim Closing at which such
reimbursement was made to the earlier of the date of such final
Closing or the Lease Modification Date. Amounts so payable under
this Paragraph 14 shall be calculated on the basis of each
calendar month having 30 days and each calendar year having 360
days.
<PAGE>
15. CLOSINGS WITH RESPECT TO NEW BUILDINGS. The New Buildings
Closings, at which shall be closed the transactions contemplated
by Paragraph 11, shall each take place (not more often than once
in each calendar month except in respect of reimbursements of
rent, interest and real estate taxes in accordance with
Paragraphs 5, 11 and 14, in respect of reimbursements of amounts
due under the Construction Contract and in respect of any single
item of the Cost of the New Buildings equalling $25,000 or more)
at the office of Hancock, 200 Berkeley Street, Boston,
Massachusetts, at 11:00 A.M., Boston time, on such days on or
after the Land Closing and on or before the date the Lease, as it
may have been renewed from time to time, terminates, as the
Company may designate by written notice, given at least 5
business days prior to each such day, to Hancock, which notice
shall specify whether such Closing is an interim or final Closing
hereunder and the amount of the Cost of the New Buildings to be
reimbursed to the Company at such Closing, provided, however,
that no such notice need be given of the first New Buildings
Closing which will be held at the same date, time and place as
the Land Closing and any interim Closing at which the only
reimbursement is to be for rent, real estate taxes or interest in
accordance with Paragraphs 5, 11, or 14. If the final New
Buildings Closing is held prior to December 2, 1966, it shall be
held on the first day of a calendar month. If the Company shall
fail so to designate a final New Buildings Closing to be held on
or before December 2, 1966, then the Supervising Engineer shall,
at the sole expense of the Company, estimate the amount of the
expenses of the character described in clause (b) of Paragraph
12, exclusive of interest described in Paragraph 14 and rentals
payable under the Lease, remaining at December 2, 1966 to be
incurred for the completion of the New Buildings in substantial
accordance with the Plans and Specifications. Said amount so
estimated is herein called the "Completion Cost". Such Completion
Cost shall be certified to Hancock in such detail and in such
manner as it may require at least 5 business days before December
2, 1966 and shall be deemed established as of that date. On said
date Hancock will set aside funds sufficient to make the further
reimbursements under Paragraph 11 that will be necessary as
indicated by such Completion Cost. In the event that (a) the
aggregate of the amounts actually reimbursed to the Company for
the Cost of the New Buildings on and before the final New
Buildings Closing is less than (b) the sum of the Completion Cost
plus the aggregate of the amounts reimbursed to the Company for
the Cost of the New Buildings up to the time of the Lease
Modification Closing, then, on the written request of the
Company, the annual basic rental provided for the initial term in
section 2 of the Lease shall be reduced by $6,160 or a
proportionate part thereof for each $100,000 or part thereof by
which said aggregate of the amounts referred to in (a) above is
less than the sum referred to in (b) above and the Cost of the
New Buildings shall be deemed reduced by the amount by which the
sum referred to in (b) above exceeds the aggregate of the amounts
<PAGE>
referred to in (a) above, or Hancock: will make such other
adjustments in respect of said funds set aside as provided in the
immediately preceding sentence as Hancock and the Company may
agree upon.
16. REPRESENTATIONS AND WARRANTIES WITH RESPECT TO NEW BUILDINGS.
The Company represents and warrants to Hancock that at the time
of each reimbursement of the Company pursuant to Paragraph 11 and
of the entering into of the Lease Modification pursuant to
Paragraph 13:
16.1. Title to Leasehold Estate. The Company will have good
title to the leasehold estate in the Property created by the
Lease, free and clear of all mortgages, liens and rights to
liens, charges, encumbrances, easements, conditions and rights of
re-entry or forfeiture, except for Permitted Exceptions and
mechanics' and materialmen's liens and similar liens securing
obligations not then delinquent and except for subleases and
general mortgages permitted by section 30 of the Lease or
consented to in writing by Hancock.
16.2. Hancock's Title. Hancock will have good and marketable
title of record in fee simple to the Property, free and clear of
all mortgages, liens, charges, easements, conditions, rights of
re-entry or forfeiture, end encumbrances of every kind except the
Lease (and subleases thereunder), the Lease Modification, if in
effect, and Permitted Exceptions and mechanics' and materialmen's
liens and similar liens securing obligations not then delinquent,
and except such as may have been created by Hancock or by persons
claiming through Hancock and not through the Company, such as may
have been created by a Taking (as defined in the Lease) and such
as may be excepted in writing by Hancock.
16.3. Condition of New Buildings. The New Buildings, to the
extent then completed, shall have been constructed, and prior to
or at the final New Buildings Closing the New Buildings will have
been completed, pursuant to Paragraph 10, will be in good order
and repair, well maintained and to the extent then completed will
be suitable and properly equipped for the purposes for which they
are to be used and will constitute part of the Property, and the
Property will be legally occupied and free of mechanics' and
materialmen's liens and rights to such liens securing, or which
would if obtained secure, any obligation then delinquent.
16.4. Cost of New Buildings. The aggregate amount then being
and theretofore received by the Company as reimbursements
pursuant to Paragraph 11 in respect of the Cost of the New
Buildings will not at the time exceed the Cost of the New
Buildings as defined in Paragraph 12, the amount thereof shall
have been actually incurred (except any part of any Completion
Cost not yet incurred) and all reimbursements made by Hancock to
the Company shall have been for expenditures made for items of
the Cost of the New Buildings.
<PAGE>
17. CONDITIONS OF CLOSINGS WITH RESPECT TO NEW BUILDINGS AND
LEASE MODIFICATION. Hancock's obligations at each New Buildings
Closing to reimburse the Company for all or any portion of the
Cost of the New Buildings and, at the Lease Modification Closing,
to enter into the Lease Modification, shall be subject to the
accuracy of the representations and warranties of the Company
contained in this Agreement or otherwise made by the Company in
writing in connection with the transactions contemplated hereby,
and to the fulfillment, to Hancock's satisfaction, prior to or at
each Closing (unless otherwise indicated), of each of the
following further applicable conditions:
17.1. Survey. At the Lease Modification Closing Hancock,
without expense to it, shall have been furnished with three
copies of a certified survey drawing (satisfactory to Hancock)
prepared by a registered surveyor who may be an employee of the
Company, of the Property, showing as of a date not more than 30
days prior to Closing, the information required by Paragraph 9.1
with respect to the Land and the exact location of the site of
and plane dimensions of the New Buildings and the location of any
other surface or subsurface structures and improvements on the
Land. If a final New Buildings Closing is held subsequent to the
Lease Modification Closing and any substantial change has
occurred since the date of said survey in the matters required to
be shown in said survey, Hancock will, at such final New
Buildings Closing, be so furnished with a like survey so prepared
which will include said change.
17.2. Certificates of Cost of the New Buildings. The Company
shall have delivered to Hancock all certificates required by
Paragraph 12.
17.3. Certificate of Completion. Hancock shall have
received, except at any interim Closing at which the only
reimbursement is for rent, real estate taxes or interest in
accordance with Paragraphs 5, 11 or 14, a certificate of the
Supervising Engineer, satisfactory in substance and form to
Hancock, certifying that such New Buildings, to the extent then
completed, shall have been constructed, and if such Closing is a
final Closing, shall have been completed, substantially in
accordance with the Plans and Specifications.
17.4. Opinion of Company Counsel. Hancock shall have
received at the Lease Modification Closing a favorable opinion
(which will be confirmed at any subsequent final New Buildings
Closing, except that the opinion called for by clause (a) need be
given only at the Lease Modification Closing) from the General
Counsel or Corporation Counsel for the Company, dated the date of
such Closing and addressed to Hancock, satisfactory in substance
and form to Hancock and its special counsel, confirming as of the
date of such Closing the opinions theretofore expressed by such
Counsel pursuant to Paragraph 9.2 and to the following effects:
<PAGE>
(a) The Lease Modification has been duly authorized by all
necessary corporate action on the part of the Company, has been
duly executed and delivered by the duly authorized officers of
the Company and constitutes a legal, valid and binding obligation
of the Company, which is enforceable, subject to laws of general
application affecting the rights and remedies of landlords and
creditors.
(b) The Company has good title to the leasehold estate in
the Property created by the Lease, free and clear of all
mortgages, liens or rights to liens, charges, encumbrances,
easements, conditions and rights of re-entry or forfeiture,
except for Permitted Exceptions and mechanics' and materialmen's
liens and similar liens securing obligations not then delinquent
and except for subleases and general mortgages permitted by
section 30 of the Lease or consented to in writing by Hancock,
and the New Buildings constitute part of the Property and part of
the "Leased Buildings" as that term is used in the Lease.
(c) Hancock has good and marketable title of record in fee
simple to the Property (including the New Buildings) as a single
contiguous parcel, free and clear of all mortgages, liens, or
rights to liens, charges, easements, conditions, rights of re-
entry or forfeiture of record, except for the Lease (and
subleases permitted thereunder), as modified by the Lease
Modification, and except for applicable Permitted Exceptions and
mechanics' and materialmen's liens and similar liens securing
obligations not then delinquent, and except such as may have been
created by Hancock or by persons claiming through Hancock and not
through the Company and such as may be accepted in writing by
Hancock, and except such as may, in counsel's opinion, be
properly ignored.
Such opinion shall also cover such other matters relating to the
transactions contemplated by Paragraphs 11, 13 and 15 as Hancock
or its special counsel reasonably may request. Drafts of such
opinion shall be furnished to Hancock and its special counsel at
least 5 full business days prior to the date of such Closing.
17.5. Opinion of Hancock's Special Counsel. Hancock shall have
received a favorable opinion at the Lease Modification Closing
(which will be confirmed at any subsequent final New Buildings
Closing, except that the opinion called for by Paragraph 17.4(a)
need be given only at the Lease Modification Closing) from
Messrs. Sullivan & Worcester, Boston, Massachusetts, its special
counsel, dated the date of such Closing, satisfactory in
substance and form to Hancock, confirming as of the date of such
Closing the opinions theretofore expressed by such counsel
pursuant to Paragraph 9.3 and covering the matters specified in
clause 17.4(a), with the addition of the words "in accordance
with its terms" after the word "enforceable" therein and of the
words "and to any limitations in the terms thereof imposed by
<PAGE>
laws of The Commonwealth of Massachusetts which affect the
remedies provided for in the Lease, which laws do not, in
counsel's opinion, make inadequate the remedies necessary for the
practical realization by Lessor under the Lease of the rights
afforded thereby" at the end thereof, and stating that the
opinion of counsel for the Company referred to in Paragraph 17.4
is satisfactory in form and substance and that Hancock is
justified in relying thereon. Such opinion shall also cover such
other matters relating to the transactions contemplated by
Paragraphs 11, 13 and 15 as Hancock reasonably may request, and
shall also be to the effect that Hancock is duly qualified and
licensed under the laws of The Commonwealth of Massachusetts to
own the Property and to enter into the Lease Modification and
under such laws may, without limitation of time, lawfully own the
Property aud be a party to the Lease Modification.
17.6. Representations and Warranties True at Closing; No
Violations. The representations and warranties of the Company
contained in Paragraphs 8 and 16 of this Agreement, and otherwise
made by it in writing in connection with the transactions
contemplated by Paragraphs 11, 13 and 15, shall be true, and
shall be made again at and as of the time of each Closing and
shall be true at and as of such time. There is no violation, or
note, notice or other record of any violation, of any zoning,
building or other statute, ordinance, regulation, or restriction
concerning the Property or the use thereof contemplated by this
Agreement.
17.7. Compliance with Lease. No condition or event shall have
occurred which constitutes an Event of Default under the Lease,
or which, after notice or lapse of time, or both, would
constitute such an Event of Default.
17.8. Performance. The Company shall have performed and complied
with all terms, provisions and conditions contained herein to be
performed or complied with by it prior to or at such Closing.
17.9. Compliance Certificate. The Company shall have delivered to
Hancock at such Closing a certificate, dated the date of such
Closing and signed by its President or a Vice President and
Treasurer or an Assistant Treasurer, under its corporate seal,
making the representations and warranties required by Paragraph
17.6 and certifying to the fulfillment of the conditions
specified in Paragraphs 17.7 and 17.8.
17.10. Title Insurance. The policy of title insurance referred to
in Paragraph 9.8 and any reinsurance which Hancock may require
shall be in full force and effect.
<PAGE>
17.11. Releases. At the final New Buildings Closing the Company
will furnish to Hancock, (i) a release or releases of the Company
from all further obligations to the prime contractor or
contractors under the Construction Contract, each in form
satisfactory to Hancock and duly executed and delivered by the
applicable contractor, and (ii) to the extent obtainable, a
release of the Company and such prime contractors, satisfactory
in form to Hancock, duly executed and delivered by each supplier
or subcontractor as to whom Hancock shall have requested such a
release by timely prior written notice to the Company.
17.12. Proceedings and Documents. All proceedings taken in
connection with the transactions contemplated by Paragraphs 11,13
and 15 of this Agreement and all documents incident thereto shall
be satisfactory in substance and form to Hancock and its special
counsel, and Hancock shall have been furnished, to the extent not
previously furnished, prior to or at such Closing with all such
counterpart originals or certified or other copies of all such
documents, in substance and form satisfactory to Hancock and its
special counsel, as Hancock may reasonably request, and Hancock
shall be entitled to be satisfied as provided, and with reference
to the matters referred to, in Paragraph 9.9.
18. INSPECTION. Hancock shall have full opportunity prior to each
Closing hereunder to make such inspections of the Property as
Hancock may desire.
19. NO EQUITABLE OWNERSHIP. Prior to the Land Closing, Hancock is
not to acquire or assume any equitable ownership of or title to
or risk of damage to the Property by reason of the making of this
Agreement.
20. NO LIABILITY AS PURCHASER. Hancock, as purchaser of the Land,
does not by the making of this Agreement become liable, as
purchaser, for or in respect of the condition of the Property,
the cost of construction of any New Buildings or of any
buildings, structures or improvements on the Land, the cost of
any labor on or materials furnished for any Property, compliance
with any laws, requirements or regulations of, or taxes,
assessments or other charges now or hereafter due to, any
governmental authority, or any other charges or expenses
whatsoever, pertaining to the construction of the New Buildings
or of any buildings, structures or improvements on the Land, or
the ownership, title, possession, use or occupancy of the
Property, and the Company hereby indemnifies Hancock and will
save it harmless from any such liability which might accrue prior
to the conveyance of the Land to Hancock or the final New
Buildings Closing.
<PAGE>
21. EXPENSES, ETC. Whether or not the transactions contemplated
by this Agreement shall be consummated, the Company will pay all
reasonable expenses (including traveling expenses) and
disbursements incurred by Hancock in connection with any of such
transactions (including, without limiting the generality of the
foregoing, the cost of all inspections by Hancock of the Property
and of attendance by Hancock's representatives at conferences and
at each Closing) and will also pay the cost of all surveys, title
examinations and Plans and Specifications called for by this
Agreement, all commissions, if any, due to brokers, all
reasonable fees and expenses and disbursements (including those
arising from attendance at Closings or at conferences) of
Hancock's special counsel, all printing costs, all documentary,
stamp and other taxes, all recording fees and taxes and all other
reasonable costs in connection with any of such transactions.
Hancock and the Company each represents and warrants that it has
not enraged or approached and will not engage or approach any
broker, agent or other person who would be entitled to any
commission or finder s or similar fee with respect to the
transactions contemplated hereby.
22. PROVISIONS TO SURVIVE CLOSINGS. All representations and
warranties made by the Company shall be deemed material and to
have been relied on by Hancock notwithstanding any investigation
at any time made by Hancock or on its behalf, and such
representations and warranties and all agreements and obligations
of the Company shall survive any such investigation and the
execution and delivery of this Agreement, the Lease, the
Instruments of Conveyance and the Lease Modification, and payment
for the Property and reimbursement for the Cost of the New
Buildings and for a period of 30 years after the commencement of
the initial term of the Lease and until the final termination of
the Lease. All statements contained in any certificate or other
instrument delivered at any time by or on behalf of the Company
in connection with the transactions contemplated hereby shall
constitute representations and warranties by the Company
hereunder.
23. WAIVER, MODIFICATION, ETC. No failure on the part of Hancock
at any time to require the performance by the Company of any of
the provisions of this Agreement shall in any way affect
Hancock's rights hereunder to enforce the same, nor shall any
waiver by Hancock of any provision hereof be taken or held to be
a waiver of any other provision hereof or of any breach thereof.
No right under this Agreement may be waived and no modification
or amendment of this Agreement may be made except by a written
instrument executed by the party or parties involved.
24. ENTIRE CONTRACT. This Agreement constitutes the entire
contract between the parties hereto with respect to the Land and
improvements covered hereby and shall supersede and take the
<PAGE>
place of any other instrument insofar as such purports to be an
agreement of the parties hereto with respect to such Land and
improvements.
25. NOTICES, ETC. All notices and other communications hereunder
shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or delivered (unless the party
to be addressed shall have designated another address in writing
to the other party hereto), if to the Company, at its principal
office as set forth at the beginning of this Agreement, and if to
Hancock, at 200 Berkeley Street, Boston 17, Massachusetts, and
directed to the attention of such department as Hancock may have
from time to time designated to the Company.
26. LAW GOVERNING. This Agreement shall be deemed to have been
executed and delivered in The Commonwealth of Massachusetts and
shall be construed and enforced in accordance with and governed
by the laws of that Commonwealth.
27. PARTIES IN INTEREST. All the terms, provisions and conditions
of this Agreement shall be binding upon and inure to the benefit
of and be enforceable by the respective successors and assigns of
the parties hereto, except that the interests and obligations of
the Company under this Agreement may not be assigned without the
prior written consent of Hancock, and the obligations of Hancock
under this Agreement may not be assigned without the prior
written consent of the Company.
28. CONSENTS AND APPROVALS. Wherever in this Agreement it is
provided that any act or thing shall require the consent or
approval of Hancock, such requirement shall be deemed to include
a provision that such consent or approval shall not be
unreasonably withheld.
29. DEFINITIONS. The following terms shall have respective
meanings as defined in the respective parts of this Agreement
referred to opposite such terms, as follows:
affiliates--Paragraph 3. Lease--Paragraph 1.
Basic Cost to Lessor--Paragraph 5. Lease Modification--Paragraph 8.1.
Company--the first paragraph. Lease Modification Closing--
Paragraph 13.
Completion Cost--Paragraph 15. Lease Modification Date--Paragraph
13.
Construction Contract--Paragraph 10. Leased Buildings--Paragraph 17.4(b).
Cost of the New Buildings--Paragraph 12. New Buildings--Paragraph 10.
Event of Default--Paragraph 9.5. New Buildings Closings--Paragraph
11.
Hancock--the first paragraph. Permitted Exceptions--Paragraph 4.
Instruments of Conveyance--Paragraph 4. Plans and Specifications--Paragraph
10.
interim Closing--Paragraph 14. Property--Paragraph 5.
<PAGE>
Land--Paragraph 1. Purchase Price of the Land--
Paragraph 3.
Land Closing--Paragraph 1. Supervising Engineer--Paragraph 10.
30. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
MASSACHUSETTS ELECTRIC COMPANY
By R. Leigh Fitzgerald
R. Leigh Fitzgerald
Vice President
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
By Gordon E. Emerson, Jr.
Vice President
<PAGE>
EXHIBIT A
LEASE dated December 30, 1964, between JOHN HANCOCK MUTUAL
LIFE INSURANCE COMPANY ("Lessor") , a Massachusetts corporation
having its principal office and place of business at 200 Berkeley
Street, in the City, of Boston, County of Suffolk, The
Commonwealth of Massachusetts, and MASSACHUSETTS ELECTRIC COMPANY
("Lessee"), a Massachusetts corporation having its principal
office and place of business at 441 Stuart Street, in the City of
Boston, County of Suffolk, The Commonwealth of Massachusetts:
1. Leased Property Term of Lease. Upon the conditions,
limitations, covenants and agreements set forth below, Lessor
hereby leases to Lessee and Lessee hereby leases from Lessor the
following property (hereinafter sometimes collectively referred
to as the "Leased Property")
ALL the land described in Schedule A hereto;
TOGETHER WITH the buildings, structures, facilities, equipment,
paving, surfacing and other improvements, other than Lessee's
Equipment, now or hereafter located thereon (all of the foregoing
improvements being hereinafter sometimes referred to as the
"Leased Buildings"), and the appurtenances thereof;
SUBJECT, HOWEVER, to (a) the rights, reservations, and
restrictions of record, if any, set forth or referred to in
Schedule A hereto; (b) zoning and building restrictions and
governmental regulations now or hereafter affecting the Leased
Property; (c) such state of facts as an accurate survey would
show; and (d) rights, if any, of parties in possession other than
Lessor;
For a preliminary term commencing on the date hereof and expiring
at midnight on the day next preceding the commencement of the
initial term hereinafter provided for, unless this Lease shall
sooner terminate as hereinafter provided;
For an initial term commencing on the date of the Lease
Modification Closing in respect of this Lease provided for in the
Agreement referred to in section 5 and expiring at midnight on a
date falling thirty-five (35) years after such date of
commencement, unless this Lease shall sooner terminate as
hereinafter provided; and
For a renewal term or terms as provided in section 34.
2. Basic Rent. Lessee will pay to Lessor, in such coin or
currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and
private debts, at the City Mortgage Department of Lessor at 200
<PAGE>
Berkeley Street, Boston 17, Massachusetts, or at such place or to
such agent as Lessor from time to time may designate, an annual
basic rental (over and above the other additional payments to be
made by Lessee as hereinafter provided)of: ((a) $1,141.74 during
the preliminary term of this Lease, payable in installments in
advance as follows: (b) $6.34 on the date hereof and (c) $95.15
on the first day of each succeeding calendar month; and (x) $
during the initial term of this Lease, payable in installments in
advance as follows: (y) $ on the first day of the initial
term of this Lease and on the first day of each succeeding
calendar month [the amounts in (x) and (y) to be inserted by
modification of this Lease pursuant to the Agreement referred to
in section 5]. Such basic rental (or, if this Lease has been
renewed as provided in section 34, the basic rental therein
specified) is hereinafter sometimes referred to as the "Basic
Rent". Except as otherwise specifically provided herein, the
Basic Rent shall be due and payable to Lessor in each month
during the entire respective terms of this Lease. During the
preliminary term of this Lease payments of all rentals may be
made as provided in the Agreement referred to in section 5
hereof.
3. Additional Rent; Credit Against Rent. Lessee will also pay
Lessor as additional yearly rental the sum of: (1 ) The amount of
all real estate taxes on the Leased Property incurred during the
preliminary term of this Lease (which payment may be made as
provided in the Agreement referred to in section 5 hereof ); and
(2) during the initial term, and each renewal term, of this Lease
the sum of the amounts, if any, by which (a) the real estate
taxes payable on the Leased Property for any full year shall
exceed $75,000; (b) such taxes for any portion of a full year
shall exceed a proportionate amount of $75,000; (c) the cost for
any full year of insurance of the types required by Section 20 to
be carried by Lessor shall exceed $6,000; and (d) the cost for
any portion of a full year of such insurance shall exceed a
proportionate amount of $6,000. Such additional rent shall be
paid at least fifteen days before the respective items thereof
are due and payable. An amount equal to the amount, if any, by
which (i) such taxes are less than $75,000 and/or (ii) the cost
of such insurance is less than $6,000 for any such full year
during the initial term or any renewal term of this Lease, or
proportionately for any portion of such a full year, shall be
credited against the first rental or rentals payable under this
Lease after receipt by Lessor of the respective bills for such
items of additional rentals. Lessee shall also pay Lessor as
additional rent amounts, equal to all betterment assessments
imposed on the Leased Property during the term hereof; such
payments, if a betterment assessment is payable in installments,
to be paid Lessor as the installments become due or, if a
betterment assessment is payable in a single payment, to be paid
Lessor in equal annual installments, the first installment to be
paid on the due date of the assessment and one installment on the
<PAGE>
anniversary date in each of the next nine succeeding years of the
term of this Lease, or each succeeding year of the remaining term
if less than nine years. Lessee will also, as additional rent,
pay all Impositions (such term, and certain other terms are
defined in section 51), costs, expenses, liabilities, obligations
and other payments which Lessee in any of the provisions of this
Lease assumes or agrees to pay (and reimburse Lessor for any
payments thereof made by Lessor) and, in the event of any failure
by Lessee to pay any of the same, Lessor shall have all rights
and remedies provided for in this Lease, or by law in the case of
nonpayment of the Basic Rent. Lessee will also pay Lessor, on
demand as additional rent, interest at the rate of 6% per annum
on all overdue installments of Basic Rent. The provisions of this
section are subject to section 17 relating to contests.
4. No Abatement, etc. Lessee will pay the Basic Rent to Lessor
and the additional rent to the appropriate payees thereof without
notice or demand by Lessor, except as otherwise specifically
required hereby, and, except as otherwise specifically required
hereby, without abatement, deduction, counterclaim, set-off or
defense, based on any claim against Lessor; Lessee shall not be
entitled to quit, terminate or surrender this Lease, and shall
not be relieved from its obligations to pay the full Basic Rent
and additional rent or from any of its other obligations under
this Lease, by reason of (a) any prevention or curtailment of or
interference with any use of the Leased Property or any part
thereof for any purpose by any Legal Requirement, (except as
provided herein in respect of a Taking), or (b) any change of
grade of any abutting street, or (c) any damage to or destruction
of or Taking of the Leased Buildings or successful assertion of
title paramount in the Leased Property or any part thereof
(except as otherwise specifically required hereby).
5. Construction of Leased Buildings. Use of Leased Property.
Lessee will proceed diligently with the construction and
completion of the buildings and improvements on the land included
in the Leased Property as provided in the agreement between
Lessor and Lessee dated as of December 30, 1964, (herein
sometimes called the "Agreement"), a copy of which is on file at
the principal office of Lessor, and will otherwise duly and
punctually perform its obligations thereunder. Lessee will use or
permit the use of the Leased Property in connection with its
business of supplying of electric utility service and goods
generally to its customers, and, except incidentally and except
for use by Lessee's affiliates and sublessees permitted hereunder
in connection with their respective businesses, will not use or
permit the use of the same for any other purpose without Lessor's
prior written consent. Lessee will not permit any occupancy or
use of any part of the Leased Property contrary to any Legal
Requirement or Insurance Requirement or permit any nuisance in,
at or on the Leased Property or any abandonment or waste of the
Leased Property or any part thereof.
<PAGE>
6. Lessee's Equipment. All Lessee's Equipment shall be the
property of Lessee, provided that (a) upon the occurrence of any
Event of Default, Lessor shall, to the extent permitted by law,
have (in addition to all other rights) a lien on Lessee's
interest in all Lessee's Equipment (to the extent such a lien may
be created without violation of any other agreement or obligation
of Lessee with respect to such Lessee's Equipment) on the Leased
Property as security for all rent, including additional rent, due
and payable under this Lease, and (b) any Lessee's Equipment not
removed by Lessee at its expense within 30 days after any
termination of this Lease shall be considered abandoned by Lessee
and may be appropriated, sold, destroyed or otherwise disposed of
by Lessor without notice to Lessee and without obligation to
account therefor, and Lessee will pay Lessor upon demand all net
costs and expenses incurred by Lessor in removing, storing or
disposing of the same. Lessee will immediately repair at its
expense all damage to the Leased Property caused by any removal
of Lessee's Equipment therefrom, whether effected by Lessee or
Lessor. Lessor shall not be responsible for any loss of or damage
to Lessee's Equipment.
7. Alterations and Additions. Lessee may make, at its expense,
reasonable alterations of and additions to the Leased Buildings
and may construct additional buildings and other improvements on
the Leased Property, provided that in all cases (including
alterations or additions involved in any repair pursuant to
sections 6 or 12) the alteration or addition (a) does not change
the general character of the Leased Buildings or adversely affect
their fair market value,(b) is effected with due diligence, in a
good and workmanlike manner and in compliance with all Legal
Requirements and Insurance Requirements,(c) is promptly and fully
paid for by Lessee, and (d)is made, in case the estimated cost
exceeds $100,000, either (x) under the supervision of an
architect or engineer satisfactory to Lessor and in substantial
accordance with detailed plans and specifications and cost
estimates approved by Lessor, and after Lessee shall have
furnished to Lessor, if requested, a performance bond, or other
security, satisfactory to Lessor or (y) pursuant to a proposal
satisfactory to Lessor as evidenced by it in writing.
8. Improvements, etc., on Property of Lessor. All buildings,
structures, improvements, fixtures. machinery, apparatus,
equipment, changes, alterations, repairs, replacements, renewals,
additions, betterments, restoration and rebuilding erected, made
or installed by Lessee in or upon or used for the operation,
maintenance or protection of the Leased Property, as such (other
than Lessee's Equipment), shall immediately be and become the
property of Lessor and shall thereafter constitute part of the
Leased Property.
<PAGE>
9. Impositions. Subject to section 17 relating to contests,
Lessee will pay all Impositions before any interest, penalty,
fine or cost may be added for non-payment, provided that (a) if,
by law, any Imposition may at the option of the payor be paid in
installments, Lessee may exercise such option, and, in such
event, Lessee shall give Lessor prompt written notice of such
exercise and shall pay all such installments (and interest, if
any) becoming due during the term of this Lease as the same
respectively become due and before any further interest or any
penalty, fine or cost may be added thereto; and (b) any
Imposition relating to a period, a part of which is included
within the term of this Lease and a part of which extends beyond
such term, shall, if an Event of Default shall not then exist
under this Lease, be apportioned between Lessor and Lessee as of
the expiration of such term. Lessee will furnish to Lessor and to
each holder of any mortgage on the Leased Property, for
inspection, within 30 days after the date when any Imposition
(unless being contested in conformity with section 17) would
become delinquent, official receipts, or other proof satisfactory
to Lessor or such mortgagee, as the case may be, evidencing the
payment of such Imposition. Lessor will pay in full when due and
payable all real estate taxes and betterment assessments in
respect of the Leased Property, except such as are includible in
additional rent and are not paid to Lessor by Lessee when such
additional rent is due, provided, however, that Lessor may
contest, by appropriate legal proceedings the amount or validity
or application, in whole or in part, of any tax or betterment
assessment, provided that (a) such proceedings shall operate to
suspend the collection thereof from the Leased Property, (b)
neither the Leased Property nor any part thereof would be in
substantial danger of being forfeited or lost, and (c) Lessor
shall have furnished such security, if any, as may be required in
the proceedings.
10. Compliance with Legal and Insurance Requirements, etc.
Subject to section 17 relating to contests, Lessee at its expense
will promptly comply with all Legal Requirements, and all
reasonable Insurance Requirements of which Lessee shall have been
given written notice, unless variance therefrom is consented to
in writing by Lessor, whether or not compliance therewith shall
require structural changes in the Leased Buildings, will procure
and maintain all permits, licenses and other authorizations
required for any use of the Leased Property or any part thereof
then being made, and for the lawful and proper installation,
operation and maintenance of all equipment and appliances
necessary or appropriate for the operation and maintenance of the
Leased Property, and will comply with any former instruments of
record affecting the Leased Property or any part thereof at the
time in force.
<PAGE>
11. Condition of Leased Property. Lessee is and will be fully
familiar with the physical condition of the Leased Property from
time to time. Lessor has made and will make no representations as
to the condition of the Leased Property or the fitness or
availability of the Leased Property for any particular use, and
Lessor shall not be liable for any latent or patent defect
therein, as it may exist from time to time.
12. Repairs, etc. Subject to reasonable wear and tear, Lessee
will maintain the Leased Buildings as first class property of the
type of which they consist, will keep the Leased Property and the
sidewalks, curbs, vaults and vault space, if any, adjoining the
Leased Property in good and clean order and condition, and will
make all necessary or appropriate repairs, replacements, renewals
and betterments thereof, structural and non-structural, ordinary
and extraordinary, and foreseen and unforeseen, all at the
expense of the Lessee, except that during the initial term and
each renewal term of this Lease there shall be credited at
Lessee's option against the rent hereunder in respect
of amounts actually expended by Lessee for exterior repairs of
the T Leased Buildings an amount not exceeding $5,000 in each
year during such terms while this Lease or any extension or
renewal thereof is in effect, and to the extent such credit is
not so taken in any such year it may be accumulated and so taken
in any subsequent year or years at any time prior to the
termination or other expiration of this Lease. Upon any such
termination or expiration Lessee shall be compensated by Lessor,
by credit against rent due hereunder or otherwise, for the full
aggregate amount of such accumulated credits to the date of such
termination or expiration, whether or not amounts in respect of
such credits have actually been expended by Lessee. Lessee will,
at its expense, and will hold the Lessor harmless from such
expense, take all action necessary to insure that the Leased
Property will at all times be provided with adequate facilities
for drainage of surface water and will promptly comply with all
Legal Requirements in such connection.
13. Shoring, etc. Lessee at its expense will do or cause others
to do all shoring of foundations and walls of the Leased
Buildings or of the ground adjacent thereto, and every other act,
necessary or appropriate for the safety and preservation thereof
by reason of or in connection with any excavation or other
building operation upon the Leased Property or any adjoining
property, whether or not the owner of the Leased Property shall,
by any Legal Requirement, be required to take such action or be
liable for failure to do so.
<PAGE>
14. Replacement of Building Equipment. Lessee may, from time to
time, so long as it shall not be in default under this Lease,
remove and dispose of any equipment in the Leased Buildings,
provided that (except as to Lessee's Equipment) Lessee shall
promptly replace such equipment with other equipment at least
equal in value and general utility to that removed.
15. Discharge of Liens, etc. Subject to section 17 relating to
contests, Lessee (unless such be created by Lessor or those
claiming through Lessor and not through Lessee) will not create
or permit to be created or to remain, and will discharge, any
lien, any rights in derogation of Lessor's title to the Leased
Property, any encumbrance or charge on account of any Imposition
or any mechanic's, laborer's, materialman's or vendor's lien
(including any such, lien arising out of or due to labor
performed or materials furnished prior to the date of this Lease)
or any mortgage, chattel mortgage, conditional sale or title
retention agreement, or otherwise, upon the Leased Property or
any part thereof, or upon Lessee's leasehold interest therein
(other than general mortgages of Lessee or any of its affiliates
securing publicly held securities of Lessee or its affiliates),
provided that the existence of any mechanic's, laborer's,
materialman's or vendor's lien or right thereto shall not
constitute a violation of this section if payment of the sum
involved is not yet due under the terms of the contract in
question. Subject to said section 17, Lessee will not enter into
any contract providing for the postponement of any such payment
for more than 30 days after completion of the work.
16. No Claims against Lessor. Except as otherwise specifically
contemplated by sections 21 and 25, nothing contained in this
Lease shall constitute the consent or request of Lessor, express
or implied, for the performance of any labor or the furnishing of
any materials or other property in respect of the Leased Property
or any part thereof, nor as giving Lessee any authority to
contract for or permit the rendering of any services or the
furnishing of any materials or other property, so as to permit
the making of any claim against Lessor.
17. Contests. After prior written notice to Lessor and to each
holder known to Lessee, or of record, of any mortgage on the
Leased Property, Lessee may contest, by appropriate legal
proceedings conducted in good faith and with due diligence, the
amount or validity or application, in whole or in part, of any
taxes or assessments includible in additional rent or any
Imposition or other Legal Requirement or any lien, encumbrance or
charge referred to in section 15, provided that (a) in the case
of any such unpaid tax, assessment or Imposition, such
proceedings shall operate to suspend the collection thereof from
Lessor or the Leased Property, (b) in the case of a Legal
Requirement, neither the Lessor nor any mortgagee of the Leased
<PAGE>
Property would be in danger of civil or criminal liability for
failure to comply therewith, (c) neither the Leased Property nor
any part thereof would, in the judgment of Lessor or any such
mortgagee, be in substantial danger of being forfeited or lost,
and (d) Lessee shall have furnished such security, if any, as may
be required in the proceedings or reasonably requested by Lessor
or such mortgagee.
18. Utility Services. Lessee will pay or cause to be paid all
charges for all public or private utility services and all
sprinkler-system and protective services at any time rendered to
or in connection with the Leased Property or my part thereof,
will comply with all contracts relating to any such services, and
will do all other things required for the maintenance and
continuance of all such services.
19. Lessee's Insurance. Lessee at its expense will maintain or
cause to be maintained with insurers approved by Lessor (a)
during all terms of this Lease public liability insurance and
property damage liability insurance against any accident, injury
or damage to any person or property occurring on or about the
Leased Property or any part thereof in amounts and coverage
approved in writing by Lessor, (b) during all terms of this Lease
appropriate workmen's compensation insurance in respect of any
work on or about the Leased Property and (c) during the
preliminary term of this Lease insurance with respect to the
Leased Buildings against loss or damage by fire, lightning,
windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles, smoke, boiler explosion, war risks
(when and to the extent insurance against the same is obtainable
from the United States Government or any agency thereof), and
other risks customarily insured against by persons in businesses
similar to that of Lessee, as determined in good faith by Lessee,
all in amounts not less than the full insurable value (actual
replacement value less actual physical depreciation, exclusive of
cost of excavations, foundations and footings below the underside
of the lowest basement floor if excluded by the policy) of the
Leased Buildings as determined at Lessee's expense from time to
time. In each case such policies of insurance required by this
section shall be payable to Lessee and Lessor as their interests
may appear and may be under a blanket policy approved in writing
by Lessor and may have "deductible" clauses in amounts not
exceeding $10,000 in respect of any one event of casualty or such
greater amount as Lessor may approve in writing. In case there
shall occur any damage to or destruction of any of the Leased
Buildings or any part thereof by hazards to be insured against by
Lessee under (c) above, Lessee will promptly give written notice
thereof to Lessor and, subject to the provisions of section 23,
Lessee at its expense will promptly commence and complete with
due diligence the restoration, repair, replacement or rebuilding
<PAGE>
(hereinafter collectively referred to as "Restoration") of the
Leased Buildings to as nearly as possible their value, condition
and character immediately prior to such damage or destruction,
with such alterations or additions, if any, as may be mutually
agreed upon by Lessor and Lessee.
20. Lessor's Insurance. Lessor, at its expense, during the
initial and renewal terms of this Lease, will maintain insurance
with respect to the Leased Buildings against loss or damage by
fire, lightning, windstorm, hail, explosion, riot, riot attending
a strike, civil commotion, aircraft, vehicles, smoke, boiler
explosion, war risks (when and to the extent insurance against
the same is obtainable from the United States Government or any
agency thereof), and other risks customarily insured against by
persons in businesses similar to that of Lessee, as determined in
good faith by Lessor, all in amounts not less than the then full
insurance value (actual replacement value less actual physical
depreciation, exclusive of cost of excavations, foundations and
footings below the underside of the lowest basement floor if
excluded by the policy) of the Leased Buildings as determined
from time to time at Lessee's expense when requested by Lessee
but not more frequently than once in any three years. If John
Hancock Mutual Life Insurance Company is not the Lessor
hereunder, Lessor will furnish Lessee not more often than
annually with reasonable evidence of such insurance at the
written request of Lessee. John Hancock Mutual Life Insurance
Company may in any case be a self-insurer or co-insurer against
any risks.
21. Restoration if Damage or Destruction. In case there shall
occur any damage to or destruction of any of the Leased Buildings
or any part thereof by hazards to be insured against by Lessor
during the initial or any renewal term of this Lease, Lessee will
promptly give written notice thereof to Lessor and, subject to
the provisions of section 23, Lessor at its expense will promptly
commence and complete with due diligence the Restoration of the
Leased Buildings to as nearly as possible their value, condition
and character immediately prior to such damage or destruction,
with such alterations or additions, if any, as may be mutually
agreed upon by Lessor and Lessee.
22. Abatement of Rent. In case there shall occur any damage to or
destruction of any of the Leased Buildings or any part thereof by
hazards to be insured against by Lessor, and such damage or
destruction shall be so extensive as to render the whole or any
part thereof unsuitable for occupancy by Lessee for the purposes
for which Lessee occupied the same immediately prior to such
occurrence, a just proportion of the Basic Rent, according to the
nature and extent of the injury to the Leased Buildings, shall be
suspended or abated until the Leased Buildings shall have been
<PAGE>
repaired or restored by Lessor at its expense to substantially
the same condition they were in immediately prior to such
casualty.
23. Right to Terminate in Case of Certain Damage, etc. In case
there shall occur any damage to or destruction of any of the
Leased Buildings, (a) if by such damage or destruction 60% or
more of the gross interior floor area of the building or
buildings then constituting the Leased Buildings (but not
including in any such computation any floor area of buildings
used substantially exclusively for housing heating and air
conditioning apparatus) has been rendered unsuitable for
occupancy by Lessee for the purposes for which Lessee occupied
the same immediately prior to such occurrence, then either Lessor
or Lessee may terminate this Lease by 30 days' prior written
notice to the other given within 60 days after such damage or
destruction, or (b) if 100% of such floor area has been so
rendered unsuitable, then this Lease shall terminate ipso facto.
Lessor shall not have any claim against Lessee for any deficiency
in the proceeds of insurance recovered on account of such damage
or destruction.
24. Termination as Result of Taking or Title Paramount. In the
event of a Taking of or the successful assertion of title
paramount in the entire Leased Property or the entire Leased
Buildings, this Lease shall terminate ipso facto, and in the
event of a Taking or the successful assertion of title paramount
involving 50% or more of the gross interior floor area of the
building or buildings then constituting the Leased Buildings (but
not including in any such computation any floor area of buildings
used substantially exclusively for housing heating and air
conditioning apparatus), then either Lessor or Lessee may
terminate this Lease as of the date of such Taking or successful
assertion by 30 days' prior written notice to the other given
within 60 days after such Taking or successful assertion. Lessor
shall not have any claim against Lessee for any deficiency in the
proceeds of awards or insurance recovered on account of any such
Taking or successful assertion, as the case may be.
25. Taking or Title Paramount not Resulting in Termination. In
the event of a Taking of or the successful assertion of title
paramount in part of the Leased Property or of a temporary
easement or interest therein, not resulting in termination of
this Lease, then this Lease and the term hereof shall continue in
full force and effect and a just proportion of the Basic Rent
according to the nature and extent of the part so taken or
affected shall be suspended or abated until the Leased Property
or what remains thereof not so taken or affected shall be put in
proper condition by Lessor for occupation by Lessee for the
purposes for which Lessee occupied the same immediately prior to
such Taking or successful assertion, and thereafter the Basic
<PAGE>
Rent shall be abated for the balance of the term of this Lease
according to the nature and extent of the part so taken or
affected. Lessor will, in any such event, promptly undertake, at
its expense, to put in proper condition the Leased Property or
what remains thereof for occupation by Lessee for the purposes
for which Lessee occupied the same immediately prior to such
Taking or successful assertion.
26. Damages for Taking. Lessor reserves to itself, and Lessee
assigns to Lessor, all rights to damages accruing on account of
any Taking or by reason of any act of any public or quasi-public
authority (other than changes of grade) for which damages are
payable. Lessee agrees to execute such instruments of assignment
as may be reasonably required by Lessor and to join in any
petition for the recovery of such damages if requested by Lessor,
and to turn over to Lessor any damages that may be recovered in
any such proceeding. It is agreed and understood, however, that
Lessor does not reserve to itself, and Lessee does not assign to
Lessor, any portion of the award allocable to Lessee's Equipment
or specifically paid on account of consequential damages to
Lessee for the disturbance of its occupancy of the Leased
Property under laws in effect at the time of such Taking.
27. Change of Grade. In case the grade of any street abutting on
the Leased Property shall be changed, Lessee, at its expense,
will promptly effect whatever Restoration is necessary to restore
the Leased Property to substantially its former condition and
utility and, in case the cost of such Restoration shall exceed
Lessee's award and any interest paid in respect thereof, Lessor s
award shall be applied (after deducting all costs, fees and
expenses of Lessor not paid by Lessee incident to the collection
thereof), if Lessee is not in default under this Lease, to
reimburse Lessee for the excess upon receipt by Lessor of
evidence reasonably satisfactory to Lessor of the cost and
completion of such Restoration.
28. Award if Lessee in Default. Anything in this Lease to the
contrary notwithstanding, if at the time of any Taking or any
change of grade, or at any time thereafter, Lessee shall be in
default under this Lease and such default shall continue, Lessor
shall be empowered, in the name of Lessee or otherwise, to file
and prosecute Lessee's claim, if any, for an award on account of
the Taking or change of grade and to collect such award and apply
the same, after deducting all costs, fees and expenses of Lessor
incident to the collection thereof, to the curing of such default
and any other then existing defaults under this Lease; any
balance remaining after such application and after Lessor shall
have received therefrom the amount, if any. required by the
provisions of section 26 (if applicable) to be received by Lessor
<PAGE>
on account of rights to damages assignable to Lessor by Lessee,
shall, unless the term of this Lease shall have expired, be paid
to Lessee.
29. Indemnification of Lessor. Lessee will protect, indemnify and
save harmless Lessor from and against all liabilities,
obligations, damages, penalties, claims, causes of action, costs,
charges and expenses, including attorneys' fees and expenses,
which may be imposed upon or incurred by or asserted against
Lessor by reason of (a) any accident, injury or damage to any
person or property occurring on or about the Leased Property or
any part thereof, (b) any use, non-use or condition of the Leased
Property or any part thereof, (c) any claim for the performance
of labor or the furnishing of materials or other property in
respect of the Leased Property or any part thereof except to the
extent Lessor is obligated in these respects pursuant to sections
21 and 25, and (d) any failure on the part of Lessee to perform
or comply with any of the provisions of this Lease. In case any
action or proceeding is brought against Lessor by reason of any
such occurrence, Lessee upon Lessor's request will at Lessee's
expense resist and defend such action or proceeding, or cause the
same to be resisted and defended, either by counsel designated by
Lessee and approved by Lessor, or, where such occurrence is
covered by liability insurance, by counsel designated by the
insurer.
30. Restriction against Mortgages, Assignments, Subleases, etc.
Except to affiliates and to others for stores and service
facilities which are for the convenience of the occupants of the
Property, and except to such others as Lessor may approve in
writing, Lessee's interest in this Lease may not (other than by
general mortgages of Lessee or any of its affiliates securing
publicly held securities of Lessee or its affiliates) be
mortgaged, encumbered, assigned, subleased or otherwise
transferred, in whole or in part, by Lessee or by operation of
law, merger, consolidation or otherwise and, except as aforesaid,
no part of the Leased Property may be made the subject of any
license or privilege, and without, in the case of any such
assignment or transfer of any interest in this Lease, the
execution and delivery to Lessor by the assignee or transferee of
an instrument, satisfactory in substance and form to Lessor,
whereby such assignee or transferee assumes all, or a
proportionate part, of the obligations of Lessee under this
Lease. From and after any such assignment or transfer the
obligations of each such assignee and transferee and of the
original Lessee named as such in this Lease to fulfill all of the
obligations of Lessee under this Lease shall be joint and
several, and the obligations of such original Lessee under this
Lease shall continue in full force and effect as the obligations
of a principal and not as the obligations of a guarantor or
surety.
<PAGE>
31. Assignment of Subrents, etc. Lessee hereby irrevocably
assigns to Lessor all rents due or to become due from any
assignee or sublessee of this Lease or any tenant or occupant of
the Leased Property or any part thereof, together with the right
to collect and receive the same, provided that so long as Lessee
is not in default under this Lease, Lessee shall have the right
to collect and receive such rents for its own uses and purposes.
Upon any default by Lessee under this Lease, Lessor shall, until
such default shall have been cured, have absolute title to such
rents and the absolute right to collect the same, provided that
unless Lessor gives written notice to any assignee or sublessee
or any tenant or occupant of the Leased Property permitted
hereunder that Lessee is in default under this Lease no such
assignee, sublessee, tenant or occupant shall be held liable to
Lessor for making payment of such rents to Lessee. Lessor shall
apply to the Basic Rent or additional rent due under this Lease
the net amount (after deducting all costs and expenses of
collection) of any rents so collected and received by it.
32. Performance on Behalf of Other Party. If either Lessee or
Lessor at any time shall fail to make any payment or perform any
act required by this Lease to be made or performed by it, the
other party, without notice to or demand upon the party so
failing and without waiving or releasing the party so failing
from any obligation or Event of Default under this Lease, may
(but shall be under no obligation to) at any time thereafter make
such payment or perform such act for the account and at the
expense of the party so failing. All sums so paid and all costs
and expenses (including, without limitation, attorneys' fees and
expenses) so incurred, together with interest thereon at the rate
of 6% per annum from the date of payment or incurring, shall be
paid by the party so failing to the other party on demand, and,
if Lessee is the party so failing, shall constitute additional
rent payable by Lessee under this Lease.
33. Entry by Lessor. Lessor and its authorized representatives
shall have the right to enter the Leased Property at all
reasonable times (a) for the purpose of inspecting the same or
for the purpose of doing any work under sections 21, 25 or 32,
and may take all such action thereon as may be necessary or
appropriate for any such purpose (nothing contained in this Lease
or otherwise shall create or imply any duty upon the part of
Lessor to make any such inspection, or do any such work except as
provided in sections 21 and 25), and (b) for the purpose of
showing the Leased Property to prospective purchasers or
mortgagees and, at any time within 12 months prior to the
expiration of the then current term of this Lease (unless Lessee
theretofore shall have given Lessor written notice of its
election to purchase the Leased Property or unless Lessee, if
entitled to renew this Lease for a further term, theretofore
shall have given Lessor written notice of its election to renew),
for the purpose of showing the same to prospective tenants, and
<PAGE>
within such period to attach to the Leased Buildings
advertisements for sale or letting. No such entry shall
constitute an eviction of Lessee.
34. Renewal Terms. The term of this Lease may, at the option of
Lessee (evidenced by written notice given to Lessor at least 12
months prior to the expiration of the initial term or then
current renewal term), be extended for five years (such period
being herein sometimes referred to as a "renewal term"), but such
right of extension may not be exercised for more than three such
renewal terms, provided, in each case, that the Lessee shall not
be in default under this Lease and that this Lease shall not have
been theretofore terminated for any reason. Each renewal term
shall be upon the same terms, covenants and conditions as are
provided in this Lease in respect of the initial term, except
that Lessee shall have no option to extend the term of this Lease
beyond the last such renewal term and except that the Basic Rent
for each such renewal term shall be an amount per annum equal to
$159,920, less $2,464 or a proportionate part thereof for each
$100,000 or part thereof by which the Basic Cost to Lessor is
less $3,000,000. The Basic Rent for each renewal term shall be
payable in equal monthly installments in advance on the first day
of each calendar month. A new lease need not be executed upon the
exercise of any of these options, and this Lease will remain in
full force and effect, changed only as to matters specified in
this section.
35. Events of Default. If any one or more of the following events
(herein sometimes called an "Event of Default" or "Events of
Default") shall happen:
(a) if default shall be made in the due and punctual payment of
any Basic Rent, when and as the same shall become due and
payable; or
(b) if default shall be made in the due and punctual payment of
any additional rent payable under this Lease, when and as the
same shall become due and payable, and such default shall
continue for a period of 10 days; or
(c) if default shall be made by Lessee in the performance of or
compliance with any of the covenants, agreements, terms or
conditions contained in this Lease other than those referred to
in the foregoing subdivisions (a) and (b), and such default shall
continue for a period of 30 days after written notice thereof
from Lessor to Lessee; or
(d) if Lessee shall file a voluntary petition in bankruptcy or
shall be adjudicated a bankrupt or insolvent, or shall file any
petition or answer seeking or acquiescing in any reorganization,
arrangement, composition, readjustment, liquidation, dissolution
<PAGE>
or similar relief for itself under any present or future federal,
state or other statute, law or regulation, or shall seek or
consent to or acquiesce in the appointment of any trustee,
receiver or liquidator of Lessee or of all or any substantial
part of its properties or of the Leased Property, or shall make
any general assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they
become due; or
(e) if a petition shall be filed against Lessee seeking any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or
future federal, state or other statute, law or regulation, and
shall remain undismissed or unstayed for an aggregate of 90 days
(whether or not consecutive), or if any trustee, receiver or
liquidator of Lessee or of all or any substantial part of its
properties or of the Leased Property shall be appointed without
the consent or acquiescence of Lessee and such appointment shall
remain unvacated or unstayed for an aggregate of 90 days (whether
or not consecutive); then and in any such event Lessor at any
time thereafter may give written notice to Lessee specifying the
occurrence giving rise to such Event of Default or Events of
Default and stating that this Lease and the term hereby demised
shall expire and terminate on the date specified in such notice,
which shall be at least 10 days after the giving of such notice,
and upon the date specified in such notice, subject to the
provisions of section 37 relating to the survival of Lessee's
obligations, the term of this Lease and the estate and interests
hereby demised shall expire and terminate by limitation and all
rights of the Lessee under this Lease shall cease unless before
such date (i) all arrears of Basic Rent and additional rent and
all other amounts payable by Lessee under this Lease, together in
each case with interest thereon at the rate of 6% per annum from
the time when the same became due and payable, and all costs and
expenses (including, without limitation, attorneys' fees and
expenses) incurred by or on behalf of Lessor in the premises,
shall have been fully paid by Lessee, and (ii) all other defaults
at the time existing under this Lease shall have been fully cured
and made good or secured to the satisfaction of Lessor. Lessee
will pay, as additional rent hereunder, all costs and expenses
incurred by or on behalf of Lessor, including, without
limitation, attorneys' fees and expenses, occasioned by any
default by Lessee under this Lease.
36. Repossession, Reletting, etc., by Lessor. At any time after
any expiration of the term of this Lease as provided in section
35, Lessor, without further notice and with no liability to
Lessee, may repossess the Leased Property, by force, summary
proceedings, ejectment or otherwise, and may remove Lessee and
all other persons and any and all property from the Leased
Property. After any such expiration, Lessor shall use reasonable
<PAGE>
efforts and diligence, (a) to relet the Leased Property for such
term or terms and on such terms and conditions as are practicable
in the light of all the circumstances then existing and (b) to
collect and receive the rents therefrom, all as determined in
good faith by Lessor, and Lessor shall not otherwise be liable
for any failure to collect any rent due upon any such reletting.
37. Survival of Lessee's Obligations; Damages. No expiration of
the term of this Lease or repossession of the Leased Property, as
provided in sections 35 and 36, shall relieve Lessee of its
liability and obligations under this Lease, all of which shall
survive any such expiration or repossession.
(A) In the event of any such expiration, Lessee shall pay to
Lessor the Basic Rent and all additional rent and other charges
required to be paid by Lessee up to the time of such expiration,
and thereafter Lessee, until the end of what would have been the
term of this Lease in the absence of such expiration and whether
or not the Leased Property or any part thereof shall have been
relet, shall be liable to Lessor for, and shall pay to Lessor, as
and for liquidated agreed current damages for Lessee's default:
(a) the Basic Rent (less an amount equal to $5,000 per annum) and
all additional rent, less any credits provided for in section 3,
and other charges which would be payable under this Lease by
Lessee if the term of this Lease had not expired, less
(b) the net proceeds, if any (which shall include, whether or not
paid to Lessor, all amounts paid by the lessee under such
reletting specifically in respect of real estate taxes on the
Leased Property and insurance on the Leased Property of the types
required to be carried by Lessor by section 20) of any reletting
effected for the account of Lessee pursuant to the provisions of
section 36, after deducting all Lessor's expenses in connection
with such reletting, including, without limitation, all
repossession costs, brokerage commissions, legal expenses,
attorneys' fees, expenses of employees, alteration costs, and
expenses of preparation for such reletting, and excluding,
without limitation, expenses for such real estate taxes or
insurance.
Lessee shall pay such current damages to Lessor monthly on the
days on which the Basic Rent would have been payable under this
Lease if the term of this Lease had not expired, and Lessor shall
be entitled to recover the same from Lessee on each such day.
If any statute or rule of law governing a proceeding in which
such liquidated final damages are to be proved shall validly
limit the amount thereof to an amount less than the amount above
agreed upon, Lessor shall be entitled to the maximum amount
allowable under such statute or rule of law.
<PAGE>
(B) At any time after such expiration, Lessee may pay to Lessor a
sum equal, if such expiration is during the preliminary term of
this Lease, to the Basic Cost to Lessor, and, if such expiration
is during the initial or any renewal term of this Lease, an
amount equal to the aggregate of the discounted values of the
monthly installments of the Basic Rent (less an amount equal to
$5,000 per annum) from the date of such payment to the date the
then current term of this Lease would have normally expired had
such expiration not occurred, obtained by the monthly application
of a discount rate of 5% per annum, whereupon, after such
payment, all of Lessee's liabilities and obligations for the
payment of Basic Rent under this Lease, except such as have
theretofore accrued and remain unsatisfied, shall cease. In such
event, Lessee shall be entitled to be paid by Lessor, at least
annually, until the then current term of this Lease would have
expired had such expiration not occurred, an amount (which
together with other such amounts paid by Lessor to Lessee from
and after such election shall not be in excess of the total
rentals that would be payable by Lessee during the entire
remaining portion of the then current term of this Lease) equal
to the net proceeds received by Lessor from any reletting of the
Leased Property (which shall include, whether or not paid to
Lessor, all amounts paid by the lessee under such reletting
specifically in respect of (i) real estate taxes on the Leased
Property and (ii) insurance on the Leased Property of the types
required by section 20 to be carried by Lessor) after all
Lessor's expenses in connection with such reletting, including,
without limitation, all repossession costs, brokerage
commissions, legal expenses, attorneys' fees, expenses of
employees, alteration costs, and expenses of preparation for such
reletting (Lessor's expenses shall not include expenses for real
estate taxes or insurance of the types required to be carried by
Lessor by section 20), all as determined by Lessor in accordance
with Lessor's accounting practices and principles, provided,
however, that at any time, prior to the time the current term of
this Lease in effect at the time of such expiration would have
expired but for such expiration. when Lessor has relet or relets
the Leased Property or any part thereof, it will, upon the
written request of Lessee, in respect of any such reletting which
is made under a lease for a term of years to a lessee who, or
whose obligations under such lease are guaranteed by a guarantor
who, in the reasonable judgment of Lessor, is a credit risk
substantially as good as Lessee, pay to Lessee, in lieu of that
portion of the annual payments of net proceeds of reletting
previously provided for in this sentence which are of the
character of the proceeds included in the payment of discounted
installments provided for below, an amount (which together with
other such amounts shall not be in excess of the amount that
Lessee would have been entitled to pay to Lessor in lieu of the
annual payments of Basic Rent previously provided for in this
section had this Lease so expired on the date of such payment by
Lessor) equal to the aggregate of the discounted values of the
installments of the net proceeds to be received under any
<PAGE>
such reletting that are not of the character of additional rent
under this Lease, including in such proceeds any amounts, whether
or not paid to Lessor, up to $75,000 per annum payable by the
lessee under such. reletting specifically in respect of real
estate taxes on the Leased Property and any amounts up to $6,000
per annum payable by the lessee under such reletting specifically
in respect of insurance of the types required to be carried by
Lessor by section 20, from the date of such payment to the
earlier of(a) the date the then current term of the lease under
which such reletting is effected would normally expire or (b) the
time the current term of this Lease in effect at the time of such
expiration of this Lease would have expired but for such
expiration of this Lease, obtained by the application, at such
times as installments of such rents fall due, of a discount rate
of 5% per annum, and provided, further, that if in any year
during such period the real estate taxes on the Leased Property
are less than $75,000 and/or the cost of such insurance is less
than $6,000, the Lessor will compensate Lessee for any such
differential by an appropriate credit or credits against
additional rent or otherwise; Lessor shall also pay to Lessee, as
received, any additional such proceeds up to an amount equal to
the amount by which such proceeds theretofore paid by Lessor to
Lessee have been, since the date of such election. less than the
aggregate of the instalments of Basic Rent due from the date of
such election.
(C) At any time after any such expiration, whether or not Lessor
shall have collected any current damages under (A) above and
whether or not any action shall have been taken under (B) above,
Lessor shall be entitled to recover from Lessee, and Lessee shall
pay to Lessor, within 30 days after demand as and for liquidated
and agreed final damages for Lessee's default and in lieu of all
damages beyond the date of such payment, an amount equal to the
excess, if any, of
(x) The Basic Rent (less an amount equal to $5,000 per annum) and
additional rent and other charges which would be payable under
this Lease from the date of such demand (or, if it be earlier,
the date to which Lessee shall have satisfied in full its
obligation under this section to pay current damages) for what
would be the then unexpired term of this Lease if the same
remained in effect, (y) the then fair net rental value of the
Leased Property for the same period, minus a part of any amount
paid by Lessee to Lessor under (B) above equal to the amount that
Lessee would have been entitled to pay to Lessor under (B) above
had such payment been made on the date of such payment of
liquidated damages and plus a part of any amount paid by Lessor
to Lessee under (B) above equal to the amount that Lessor would
have had to pay to Lessee under (B) above had such payment been
requested and made on the date of such payment of liquidated
damages, whereupon, after such payment, all of Lessee s
liabilities and obligations under this Lease, except such as have
theretofore accrued and remain unsatisfied, shall cease.
<PAGE>
38. Lessee's Waiver of Rights. In the event of any expiration of
the term of this Lease. Lessee. so far as permitted by law,
hereby expressly waives (a) any notice of re-entry or of the
institution of legal proceedings to that end, (b) any right of
redemption or re-entry or re-possession or to restore the
operation of this Lease, (c) any right to a trial by jury in the
event of summary proceedings, and (d) the benefits of any laws
now or hereafter in force exempting property from liability for
rent or for debt.
39. No Waiver, etc., by Lessor. No failure by Lessor to insist
upon the strict performance of any provision of this Lease or to
exercise any right, power, or remedy consequent upon a breach
thereof, and no acceptance of full or partial rent during the
continuance of any such breach, shall constitute a waiver of any
such breach or provision. No waiver of any breach shall affect or
alter this Lease which shall continue in full force and effect
with respect to any other then existing or subsequent breach
thereof.
40. Lessor's Remedies Cumulative, etc. Each right, power and
remedy of Lessor provided for in this Lease shall be cumulative
and concurrent and shall be in addition to every other right,
power or remedy provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise, and the
exercise or beginning of the exercise by Lessor of any one or
more of the rights, powers or remedies provided for in this Lease
or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise
by Lessor of any or all other such rights, powers or remedies.
41. Surrender of Leased Property. Lessee shall, upon any
expiration or earlier termination of this Lease peaceably vacate
and surrender to Lessor the Leased Property in good order,
condition and repair (ordinary wear and tear, and damage,
destruction, successful assertions of title paramount and Takings
referred to in sections 21 and 25 excepted) except as permitted
by sections 23 and 24.
42. Quiet Enjoyment. Lessee, upon paying the Basic Rent and all
additional rent and other charges provided for in this Lease and
performing and complying with all the provisions of this Lease,
shall, in addition to its rights under sections 24 and 25,
lawfully and quietly hold, occupy and enjoy the Leased Property
during the terms of this Lease without hindrance or molestation
of Lessor, or others claiming through Lessor and not through
Lessee, subject, however, to the matters, referred to in section
1 and subject to any Taking and to any acts of God or the public
enemy or the armed forces of the United States.
43. Conveyance by Lessor. In case John Hancock Mutual Life
Insurance Company, the original Lessor hereunder, or any
successor owner of the Leased Property, shall convey or otherwise
dispose of the Leased Property, all liabilities and obligations
<PAGE>
on the part of said Company or successor owner as Lessor under
this Lease accruing thereafter shall terminate, and thereupon all
such liabilities and obligations shall be binding upon the new
owner.
44. Certificate as to Defaults, etc. Within 90 days after the end
of each calendar year, Lessee will furnish to Lessor a
certificate signed by the President or a Vice President and the
Treasurer or an Assistant Treasurer of Lessee to the effect that
there exists no condition or event which constitutes an Event of
Default, or which, after notice or lapse of time or both, would
constitute an Event of Default, or, if any such condition or
event exists, specifying the nature and period of existence
thereof and what action Lessee is taking or proposes to take with
respect thereto.
45. Estoppel Certificate by Lessee. Lessee at any time or from
time to time at the request of Lessor will execute, acknowledge
and deliver to Lessor a certificate by Lessee certifying (a) that
this Lease is unmodified and in full force and effect (or, if
there have been modifications, that the same is in full force and
effect as modified and stating the modifications), (b) whether or
not there are then existing any offsets or defenses against the
enforcement of any of the provisions of this Lease (and, if so,
specifying the same) and (c) the dates, if any, to which the
Basic Rent and additional rent and other charges have been paid
in advance. Any such certificate may be relied upon by any
prospective purchaser or mortgagee of the Leased Property or any
part thereof.
46. Furnishing of Financial Statements, etc. So long as Lessor
shall be John Hancock Mutual Life Insurance Company, Lessee will
furnish, or cause to be furnished, to Lessor
(a) as soon as practicable after the end of each fiscal year and
in any event within 120 days thereafter, a balance sheet of
Lessee (in consolidated form if Lessee shall have any
consolidated subsidiaries) as at the end of such year and a
statement of income and of surplus of Lessee (in consolidated
form if Lessee shall have any consolidated subsidiaries) for such
year, setting forth in each case in comparative form
corresponding figures for the previous fiscal year, all in
reasonable detail and certified by independent public accountants
of recognized standing selected by Lessee and approved by Lessor;
and
(b) with reasonable promptness, such other information regarding
Lessee and the Leased Property and the use thereof as Lessor from
time to time may reasonably request.
47. Acceptance of Surrender. No surrender to Lessor of this Lease
or of the Leased Property or any part thereof or of any interest
therein by Lessee shall be valid or effective unless required by
the provisions of this Lease or unless agreed to and accepted in
writing by Lessor.
<PAGE>
48. Joinder of Lessor. Lessor shall not be required to join in
any contest referred to in section 17 unless any Legal
Requirement requires that such contest be brought by or in the
name of Lessor, in which event Lessor shall join in such contest
or permit the same to be brought in its name, provided that (a)
Lessee shall pay all expenses in connection therewith and
indemnify and save harmless Lessor from and against the same and
any loss, and (b) Lessor shall not be required to join in such
contest or permit the same to be brought or continued in its name
or to take any action in connection therewith if such contest or
action would in Lessor's opinion be prejudicial to its best
interest as owner of the Leased Property or otherwise.
49. Occupant Agent for Service. Lessee hereby irrevocably
constitutes and appoints such corporation, association,
partnership, individual or other entity as from time to time
shall be in actual possession of the Leased Property as the agent
and attorney-in-fact of Lessee to accept service of process in
any action, suit or proceeding by Lessor relating to this Lease
or the Leased Property, and hereby irrevocably submits, for the
purposes of any such action, suit or proceeding, to the
jurisdiction of the courts of all jurisdictions in which the
Leased Property is situated, provided that a copy of any process
so served shall be mailed forthwith to Lessee as provided in
section 50.
50. Notices, etc. All notices, demands, requests and other
instruments under this Lease shall be in writing, and shall be
considered properly given if sent by United States registered or
certified mail, postage prepaid, (a) if to Lessee, addressed to
Lessee at 441 Stuart Street, Boston 16, Massachusetts, or at such
other address as Lessee from time to time may have designated by
written notice to Lessor, and (b) if to Lessor, addressed to
Lessor at 200 Berkeley Street, Boston 17, Massachusetts,
Attention: City Mortgage Department, or at such other address as
Lessor from time to time may have designated by written notice to
Lessee.
51. Definitions. As used herein the following terms have the
following respective meanings:
additional rent: as defined in section 3.
affiliate: an entity controlling, controlled by or under common
control with Lessee.
Agreement: as defined in section 5.
Basic Cost to Lessor: $19,856.39 plus the Cost of the New
Buildings from time to time as defined in the Agreement.
Basic Rent: as defined in section 2.
<PAGE>
default: any failure on the part of Lessee to perform or comply
with any of the provisions of this Lease, whether or not
constituting an Event of Default.
Event of Default: as defined in section 35.
Impositions: all water, sewer and other rents, rates and charges,
excises, levies, license fees, permit fees and other
authorization fees and all other charges (in each case whether
general or special, ordinary or extraordinary, or foreseen or
unforeseen), of every character (including all penalties or
interest thereon) which at any time during or in respect of any
term of this Lease may be assessed, levied, confirmed or imposed
on or in respect of or be a lien upon (a) the Leased Property or
any part thereof or any rent therefrom or any estate, right or
interest therein, or (b) any occupancy, use or possession of the
Leased Property or any part thereof, other than any taxes,
assessments (including without limitation, assessments for public
improvements or benefits whether or not commenced or completed
during the term of this Lease), and other than any franchise,
capital stock or similar tax of Lessor, or any income or excess
profits tax of Lessor determined on the basis of its general
income or revenues or any estate, inheritance, succession, gift,
capital levy or similar tax of Lessor.
Insurance Requirements: all terms and provisions of each
insurance policy covering or applicable to the Leased property or
any part thereof, all requirements of the issuers of all such
policies, all orders, rules, regulations and other requirements
of the National Board of Fire Underwriters (or any other body
exercising similar functions), and all reasonable rules and
regulations of John Hancock Mutual Life Insurance Company in
respect of any risks required to be insured against by it
hereunder as to which it is a self-insurer, applicable to or
affecting the Leased Property or any part thereof or any use or
condition of the Leased Property or any part thereof.
Lease Modification Closing: as defined in the Agreement referred
to in section 5.
Leased Buildings: as defined in section 1.
Leased Property: as defined in section 1.
Legal Requirements: all statutes, codes, laws, acts, ordinances,
by-laws, orders, judgments, decrees, injunctions rules,
regulations' permits, licenses, authorizations, directions and
requirements of all federal, state, county, municipal and other
governments, departments, commissions, boards, courts,
authorities, officials and officers, foreseen or unforeseen,
ordinary or extraordinary, which now or at any time hereafter may
<PAGE>
be applicable to the Leased Property or any part thereof, or any
of the streets, alleys, passageways, sidewalks, curbs, gutters,
vaults and vault space adjoining the Leased Property or any part
thereof, or any use, manner of use or condition of the Leased
Property or any part thereof.
Lessee's Equipment: all machinery (whether or not affixed to the
Leased Buildings), furniture, furnishings, and other personal
property, other than items for which the Lessor made
reimbursement of the cost to the Lessee, not used or procured for
use in connection with the operation, maintenance or protection
of the Leased Buildings as such, installed by Lessee in the
Leased Buildings.
Restoration: as defined in section 21.
Taking: a taking of all or part of the Leased Property, or any
interest therein or right accruing thereto, as the result of or
in lieu of condemnation or eminent domain.
term of this Lease; term hereof: the preliminary term of this
Lease and the initial term of this Lease and any renewal term of
this Lease for which Lessee shalt have exercised its renewal
option.
57. Purchase of Leased Property. Lessee may, by written notice to
Lessor given not more than thirty nor less than eighteen months
prior to the end of the initial term or any renewal term of this
Lease elect to have the Leased Property appraised by three
qualified appraisers, one of whom shall be promptly selected by
Lessor, one of whom shall be promptly selected by Lessee and one
of whom shall be promptly selected by said two appraisers
selected by Lessor and Lessee, which appraisers shall undertake,
at Lessee's sole expense, to appraise the Leased Property at
least by the thirtieth day before the beginning of the last year
of the then current term of this Lease. Upon receipt of a written
appraisal agreed upon in writing by at least two of said
appraisers, Lessee may, by written notice to Lessor given prior
to the beginning of such last year, elect and, subject to
obtaining necessary approvals of regulatory authorities having
jurisdiction, become obligated to purchase the Leased Property at
any time designated in such notice during such test year and at
least sixty days after the date of such notice, for a Purchase
Price equal to the then vale of the Leased Property as appraised
by said appraisers, as aforesaid, which Purchase Price shall be
increased by an amount equal to the net amount theretofore
expended by Lessor to restore the Leased Property after any
damage thereto or destruction or Taking thereof or successful
assertion of title paramount thereto which occurred prior to such
appraisal, and is reflected in such appraisal, and which Purchase
Price shall be decreased by the appraised amount of any loss in
<PAGE>
value of the Leased Property due to any damage, destruction,
successful assertion of title paramount or Taking referred to in
sections 21, 23, 24 or 25 which occurred after such appraisal and
is not reflected in such appraisal, to the extent that such loss
has not been restored by Lessor, such appraised amount to be
determined by said appraisers as soon as possible after the
occurrence involving such decrease in value in the same manner as
the Purchase Price was determined, provided, that such Purchase
Price shall in no event be less than $250,000 if such purchase is
made during the last year of the initial term of this Lease, nor
less than $175,000 if such purchase is made during the last year
of the first renewal term of this Lease, nor less than $100,000
if such purchase is made during the last year of the second
renewal term of this Lease. If necessary approvals of regulatory
authorities have not been obtained within 90 days of Lessee's
notice of election, such election shall be voided without
liability to Lessee or Lessor, and Lessee may elect, by written
notice to Lessor given within 10 days after said 90 day period to
extend this Lease for any renewal term or terms provided for in
section 34, notwithstanding the fact that said notice would not
otherwise be timely under said section 34.
If Lessee shall so notify Lessor, Lessor shall, on the date
designated in such notice, furnish to Lessee at the place to
which service of notices upon Lessee is then to be given under
section 50 of this Lease, a quitclaim deed to the Leased
Property, conveying to Lessee a good and marketable title in fee
simple to the Leased Property, free and clear of all mortgages,
liens, charges, encumbrances, easements, conditions and rights of
reentry or forfeiture, subject only to: (a) this Lease; (b)
matters, including, without limitation, those set forth in
Schedule A hereto, existing at the date of this Lease; (c) all
taxes, special assessments and Impositions and liens required to
be paid as additional rent or otherwise or discharged by the
Lessee under any of the provisions of this Lease; (d) acts done
by the Lessee hereunder or by Lessor at the request of or with
the consent of Lessee, and claims by persons claiming by, through
or under the Lessee; and (e) all Takings, and all other matters,
if any, to which this Lease is subject other than matters created
by the Lessor hereunder or at the request of or with the consent
of Lessor, and by persons, other than the Lessee and those
claiming by, through or under the Lessee, claiming by, through or
under the Lessor. If Lessor is unable, with the exercise of due
diligence, to convey such title to Lessee, in addition to any
other remedies conferred by law, Lessee may elect either (a) to
take the title as it then is, and deduct from the Purchase Price
liens or encumbrances of an ascertainable amount, or (b) to
terminate its obligation to purchase the property, in which event
the Lessee may (notwithstanding the fact that the Lessee may have
elected to extend the term hereof, as provided in section 34) by
<PAGE>
notice in writing given to the Lessor within 3 months after the
date of such failure, terminate this Lease as of the last day of
any succeeding month, provided that not more than 6 full calendar
months shall elapse between the date of such failure and the date
of such termination or (c) to extend this Lease for any renewal
term or terms as provided in section 34 upon written notice
thereof given to Lessor within 2 months after the date of such
failure or the earlier delivery by Lessor of written notice that
it will so fail (notwithstanding the fact that such notice would
not otherwise be timely under section 34). If such 2-month period
extends beyond the end of any term of this Lease such term shall
be deemed to be extended to the end of such period or the earlier
election by Lessee so to extend this Lease.
53. Miscellaneous. Wherever in this Lease it is provided that any
act or thing shall require the consent or approval of the Lessor,
such requirement shall be deemed to include a provision that such
consent or approval shall not be unreasonably withheld. If any
provision of this Lease or any application thereof shall be
invalid or unenforceable, the remainder of this Lease and any
other application of such provision shall not be affected
thereby. Neither this Lease nor any term or provision hereof may
be changed, waived discharged or terminated orally; but only by
an instrument in writing signed by the party against which the
enforcement of the change, waiver, discharge or termination is
sought. This Lease shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of
Massachusetts. The captions in this Lease are for convenience of
reference only and shall in no way define, limit or describe any
of the provisions of this Lease. This Lease may be executed in
several counterparts, each of which shall be an original but all
of which shall constitute but one and the same instrument. The
covenants and agreements of this Lease shall, subject to the
provisions of this Lease, bind and inure to the benefit of
Lessor, its successors and assigns, and Lessee, its successors
and assigns.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Lease to
be executed and their respective corporate seals to be hereunto
affixed and attested by their respective officers thereunto duly
authorized.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY,
Lessor
Attest: (CORPORATE SEAL)
Witness:
MASSACHUSETTS ELECTRIC COMPANY
Lessee
Attest: (Corporate Seal) By
Witness:
<PAGE>
SCHEDULE A
All and the same premises conveyed to John Hancock Mutual
Life Insurance Company, Grantee, by Massachusetts Electric
Company, Grantor, by deed dated December , 1964 duly recorded
with Essex North District Registry of Deeds and therein described
as follows:
`` ... a certain tract or parcel of land situated in North
Andover, Essex County, Massachusetts, and shown on a plan
entitled: "NEW ENGLAND POWER SERVICE COMPANY, PART OF NEW ENGLAND
ELECTRIC SYSTEM, BOSTON, MASS. PLAN OF LAND IN NORTH ANDOVER,
MASSACHUSETTS TO BE CONVEYED TO MERRIMACK-ESSEX ELECTRIC COMPANY
BY GEORGE A. REA ET UX, SCALE 1"-200', DATE OCT. 24, 1957
L'6157", duly recorded with Essex North District Deeds, and
bounded and described according to said plan as follows:
Beginning at an iron rod on the Westerly side of Salem
Turnpike at the Southeasterly corner of land now or formerly of
Florence B. Allicon;
thence running S. 46 deg. 31' 48" E. by said Salem Turnpike,
1,058.95 feet to a stake at land now or formerly of Margaret R.
Simon;
thence turning and running S. 57 deg. 46' W., 372.21 feet to
a drill hole;
thence turning and running S. 21 deg. 22' E., 164.49 feet to
a drill hole;
thence turning and running S. 23 deg. 17' 30" E., 26.94 feet
to a drill hole;
thence turning and running S. 16 deg. 06' E., 34.61 feet to
a drill hole at land now or formerly of William Sheridan--said
last four (4) courses and distances being by said land of Simon;
thence turning and running S. 72 deg. 12' 30" W., 600.76
feet to a drill hole;
thence turning and running S. 71 deg. 29' 30" W., 313 feet
to a drill hole at Chestnut Street--said last two (2) courses and
distances being by said land of Sheridan;
thence turning and running N. 21 deg. 20' 30" W., 231.06
feet to a drill hole;
thence turning and running N. 20 deg. 15' W., 162.35 feet to
a drill hole;
<PAGE>
thence turning and running N. 23 deg. 19 W., 221.90 feet to
a drill hole;
thence turning and running N. 21 deg. 11' W., 175.21 feet to
a drill hole;
thence turning and running N. 14 deg. 53, W., 176.14 feet to
a drill hole;
thence turning and running N. 20 deg. 29' W., 82.42 feet to
a drill hole;
thence turning and running N. 13 deg. 44' W., 66.12 feet to
a drill hole;
thence turning and running N. 8 deg. 50' W., 36.38 feet to a
drill hole;
thence turning and running N. 15 deg. 27' W., 38.64 feet to
a drill hole;
thence turning and running N. 26 deg. 12' W., 58.81 feet to
a drill hole;
thence turning and running N. 25 deg. 46' W., 100.03 feet to
a drill hole;
thence turning and running N. 31 deg. 33' 26" W., 123.19
feet to an iron pipe at land now or formerly of Agnes M. Kmiec--
said last twelve (12) courses and distances being by said
Chestnut Street;
thence turning and running N. 80 deg. 10' 32" E. by said land of
Kmiec, 474.86 feet to a point at said land of Allicon;
thence turning and running S. 20 deg. 30' E., 120.80 feet to
an iron rod;
thence turning and running N. 76 deg. 35' E., 365.98 feet to
the point of beginning--said last two (2) courses and distances
being by said land of Allicon.
Containing according to said plan 31.4 acres of land.
Being the same premises conveyed to Merrimack-Essex Electric
Company by George A. Rea and Charlotte P. Rea by deed dated
November 1, 1957 and recorded with said Deeds in Book 866, Page
107.
Said Merrimack-Essex Electric Company merged with
Massachusetts Electric Company as of September 5, 1962. See
Confirmation of Merger recorded with said Deeds in Book 969, Page
1.
<PAGE>
Said parcel is conveyed together with all the Grantor's
right. title and interest in and to Chestnut Street as shown on
said plan and subject to an easement for drainage purposes
conveyed to The Commonwealth of Massachusetts by George A. Rea
and Charlotte P. Rea by Deed dated December 5, 1946 and recorded
with said Deeds in Book 693, Page 170.
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS }
COUNTY OF SUFFOLK }SS.
On this day of December, 1964, before me, appeared
and , to me personally known, who being by me duly sworn,
did say that they are the and , respectively of
John Hancock Mutual Life Insurance Company, a corporation, and
that the seal affixed to the foregoing instrument is the
corporate seal of said corporation, and that said instrument was
signed and sealed by them in behalf of said corporation by
authority of its Board of Directors, and the said
and _____________________acknowledged said instrument to be the
free act and deed of said corporation.
Notary Public.
(NOTARIAL SEAL)
My Commission expires
THE COMMONWEALTH OF MASSACHUSETTS }
COUNTY OF SUFFOLK } SS.
On this day of December, 1964, before me, appeared and
, to me personally known, who being by me duly sworn,
did say that they are the and , respectively,
of Massachusetts Electric Company, a corporation, and that the
seal affixed to the foregoing instrument is the corporate seal of
said corporation, and that said instrument was signed and sealed
by them on behalf of said corporation by authority of its Board
of Directors, and the said and
acknowledged said instrument to be the free act and deed of said
corporation.
Notary Public.
(NOTARIAL SEAL)
My Commission expires
<PAGE>
EXHIBIT B
LEASE MODIFICATION AGREEMENT, dated 196 , between JOHN
HANCOCK MUTUAL LIFE INSURANCE COMPANY ("Lessor"), a Massachusetts
corporation having its principal office and place of business at
200 Berkeley Street, in the City of Boston, County of Suffolk,
The Commonwealth of Massachusetts, and MASSACHUSETTS ELECTRIC
COMPANY ("Lessee"), a Massachusetts corporation having its
principal office and place of business at 441 Stuart Street, in
the City of Boston, County of Suffolk;, The Commonwealth of
Massachusetts:
The Lease, dated __________________, between Lessor and
Lessee is hereby modified and amended as follows:
1. Section 2. Section 2 of the Lease is modified and
amended to read as follows:
2. Basic Rent. Lessee will pay to Lessor, in such coin or
currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and
private debts, at the City Mortgage Department of Lessor at 200
Berkeley Street, Boston 17, Massachusetts, or at such place or to
such agent as Lessor from time to time may designate, an annual
basic rental (over and above the other additional payments to be
made by Lessee as hereinafter provided) of (x) $_______ during
the initial term of this Lease, payable in installments in
advance, of (y) $_______ on the first day of the initial term of
this Lease and on the first day of each succeeding calendar
month. Such basic rental (or, if this Lease has been renewed as
provided in section 34, the basic rental therein specified) is
hereinafter sometimes referred to as the "Basic Rent". Except as
otherwise specifically provided herein, the Basic Rent shall be
due and payable to Lessor in each month during the entire
respective terms of this Lease."
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and their respective corporate seals to
be hereunto affixed and attested by their respective officers
thereunto duly authorized.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY,
Lessor
By ........................................
Attest:
.........................................
Assistant Secretary
Witness:
.........................................
.........................................
MASSACHUSETTS ELECTRIC COMPANY,
Lessee
By .....................................
Attest:
.........................................
Witness:
.........................................
.........................................
<PAGE>
Exhibit B-1(ii)
AS EXECUTED
LEASE dated December 30, 1964, between JOHN HANCOCK MUTUAL
LIFE INSURANCE COMPANY ("Lessor"), a Massachusetts corporation
having its principal office and place of business at 200 Berkeley
Street, in the City of Boston, County of Suffolk, The
Commonwealth of Massachusetts, and MASSACHUSETTS ELECTRIC COMPANY
("Lessee"), a Massachusetts corporation having its principal
office and place of business at 441 Stuart Street, in the City of
Boston, County of Suffolk, The Commonwealth of Massachusetts:
1. Leased Property -- Term of Lease. Upon the conditions,
limitations, covenants and agreements set forth below, Lessor
hereby leases to Lessee and Lessee hereby leases from Lessor the
following property (hereinafter sometimes collectively referred
to as the "Leased Property"):
All the land described in Schedule A hereto;
TOGETHER WITH the buildings, structures, facilities,
equipment, paving, surfacing and other improvements, other than
Lessee's Equipment, now or hereafter located thereon (all of the
foregoing improvements being hereinafter sometimes referred to as
the "Leased Buildings"), and the appurtenances thereof;
SUBJECT, HOWEVER, to (a) the rights, reservations, and
restrictions of record, if any, set forth or referred to in
Schedule A hereto; (b) zoning and building restrictions and
governmental regulations now or hereafter affecting the Leased
Property; (c) such state of facts as an accurate survey would
show; and (d) rights, if any, of parties in possession other than
Lessor;
For a preliminary term commencing on the date hereof and
expiring at midnight on the day next preceding the commencement
of the initial term hereinafter provided for, unless this Lease
shall sooner terminate as hereinafter provided;
For an initial term commencing on the date of the Lease
Modification Closing in respect of this Lease provided for in the
Agreement referred to in section 5 and expiring at midnight on a
date falling thirty-five (35) years after such date of
commencement, unless this Lease shall sooner terminate as
hereinafter provided; and
For a renewal term or terms as provided in section 34.
2. Basic Rent. Lessee will pay to Lessor, in such coin or
currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and
private debts, at the City Mortgage Department of Lessor at 200
<PAGE>
Berkeley Street, Boston 17, Massachusetts, or at such place or to
such agent as Lessor from time to time may designate, an annual
basic rental (over and above the other additional payments to be
made by Lessee as hereinafter provided) of: (a) $1,141.74 during
the preliminary term of this Lease, payable in installments in
advance as follows: (b) $6.34 on the date hereof and (c) $95.15
on the first day of each succeeding calendar month; and (x)
$_____ during the initial term of this Lease, payable in
installments in advance as follows: (y) $_______ on the first day
of the initial term of this Lease and on the first day of each
succeeding calendar month [the amounts in (x) and (y) to be
inserted by modification of this Lease pursuant to the Agreement
referred to in section 5]. Such basic rental (or, if this Lease
has been renewed as provided in section 34, the basic rental
therein specified) is hereinafter sometimes referred to as the
"Basic Rent". Except as otherwise specifically provided herein,
the Basic Rent shall be due and payable to Lessor in each month
during the entire respective terms of this Lease. During the
preliminary term of this Lease payments of all rentals
may be made as provided in the Agreement referred to in section 5
hereof.
3. Additional Rent; Credit Against Rent. Lessee will also
pay Lessor as additional yearly rental the sum of: ( 1 ) The
amount of all real estate taxes on the Leased Property incurred
during the preliminary term of this Lease (which payment may be
made as provided in the Agreement referred to in section 5
hereof); and (2) during the initial term, and each renewal term,
of this Lease the sum of the amounts, if any, by which (a) the
real estate taxes payable on the Leased Property for any full
year shall exceed $75,000; (b) such taxes for any portion of a
full year shall exceed a proportionate amount of $75,000; (c) the
cost for any full year of insurance of the types required by
Section 20 to be carried by Lessor shall exceed $6,000; and (d)
the cost for any portion of a full year of such insurance shall
exceed a proportionate amount of $6,000. Such additional rent
shall be paid at least fifteen days before the respective items
thereof are due and payable. An amount equal to the amount, if
any, by which (i) such taxes are less than $75,000 and/or (ii)
the cost of such insurance is less than $6,000 for any such full
year during the initial term or any renewal term of this Lease,
or proportionately for any portion of such a full year, shall be
credited against the first rental or rentals payable under this
Lease after receipt by Lessor of the respective bills for such
items of additional rentals. Lessee shall also pay Lessor as
additional rent amounts equal to all betterment assessments
imposed on the Leased Property during the term hereof; such
payments, if a betterment assessment is payable in installments,
to be paid Lessor as the installments become due or, if a
betterment assessment is payable in a single payment, to be paid
Lessor in equal annual installments, the first installment to be
paid on the due date of
<PAGE>
the assessment and one installment on the anniversary date in
each of the next nine succeeding years of the term of this Lease,
or each succeeding year of the remaining term if less than nine
years. Lessee will also, as additional rent, pay all Impositions
(such term, and certain other terms, are defined in section 51),
costs, expenses, liabilities, obligations and other payments
which Lessee in any of the provisions of this Lease assumes or
agrees to pay (and reimburse Lessor for any payments thereof made
by Lessor), and, in the event of any failure by Lessee to pay any
of the same, Lessor shall have all rights and remedies provided
for in this Lease, or by law in the case of nonpayment of the
Basic Rent. Lessee will also pay Lessor, on demand, as additional
rent, interest at the rate of 6% per annum on all overdue
installments of Basic Rent. The provisions of this section are
subject to section 17 relating to contests.
4. No Abatement, etc. Lessee will pay the Basic Rent to
Lessor and the additional rent to the appropriate payees thereof
without notice or demand by Lessor, except as otherwise
specifically required hereby, and, except as otherwise
specifically required hereby, without abatement, deduction,
counterclaim, set-off or defense, based on any claim against
Lessor; Lessee shall not be entitled to quit, terminate or
surrender this Lease, and shall not be relieved from its
obligations to pay the full Basic Rent and additional rent or
from any of its other obligations under this Lease, by reason of
(a) any prevention or curtailment of or interference with any use
of the Leased Property or any part thereof for any purpose by any
Legal Requirement (except as provided herein in respect of a
Taking), or (b) any change of grade of any abutting street, or
(c) any damage to or destruction of or Taking of the Leased
Buildings or successful assertion of title paramount in the
Leased Property or any part thereof (except as otherwise
specifically required hereby).
5. Construction of Leased Buildings. Use of Leased
Property. Lessee will proceed diligently with the construction
and completion of the buildings and improvements on the land
included in the Leased Property as provided in the agreement
between Lessor and Lessee dated as of December 30, 1964, (herein
sometimes called the "Agreement"), a copy of which is on file at
the principal office of Lessor, and will otherwise duly and
punctually perform its obligations thereunder. Lessee will use or
permit the use of the Leased Property in connection with its
business of supplying of electric utility service and goods
generally to its customers, and, except incidentally and except
for use by Lessee's affiliates and sublessees permitted hereunder
in connection with their respective businesses, will not use or
permit the use of the same for any other purpose without Lessor's
prior written consent. Lessee will not permit any occupancy or
use of any part of the Leased Property contrary to any Legal
Requirement or Insurance Requirement or permit any nuisance in,
<PAGE>
at or on the Leased Property or any abandonment or waste of the
Leased Property or any part thereof.
6. Lessee's Equipment. All Lessee's Equipment shall be the
property of Lessee, provided that (a) upon the occurrence of any
Event of Default, Lessor shall, to the extent permitted by law,
have (in addition to all other rights) a lien on Lessee's
interest in all Lessee's Equipment (to the extent such a lien may
be created without violation of any other agreement or obligation
of Lessee with respect to such Lessee's Equipment) on the Leased
Property as security for all rent, including additional rent, due
and payable under this Lease, and (b) any Lessee's Equipment not
removed by Lessee at its expense within 30 days after any
termination of this Lease shall be considered abandoned by Lessee
and may be appropriated, sold, destroyed or otherwise disposed of
by Lessor without notice to Lessee and without obligation to
account therefor, and Lessee will pay Lessor upon demand all net
costs and expenses incurred by Lessor in removing, storing or
disposing of the same. Lessee will immediately repair at its
expense all damage to the Leased Property caused by any removal
of Lessee's Equipment therefrom, whether effected by Lessee or
Lessor. Lessor shall not be responsible for any loss of or damage
to Lessee's Equipment.
7. Alterations and Additions. Lessee may make, at its
expense, reasonable alterations of and additions to the Leased
Buildings and may construct additional buildings and other
improvements on the Leased Property, provided that in all cases
(including alterations or additions involved in any repair
pursuant to sections 6 or 12) the alteration or addition (a) does
not change the general character of the Leased Buildings or
adversely affect their fair market value, (b) is effected with
due diligence, in a good and workmanlike manner and in compliance
with all Legal Requirements and Insurance Requirements, (c) is
promptly and fully paid for by Lessee, and (d) is made, in
case the estimated cost exceeds $100,000, either (x) under the
supervision of an architect or engineer satisfactory to
Lessor and in substantial accordance with detailed plans and
specifications and cost estimates approved by Lessor,
and after Lessee shall have furnished to Lessor, if requested, a
performance bond, or other security, satisfactory to
Lessor or (y) pursuant to a proposal satisfactory to Lessor as
evidenced by it in writing.
8. Improvements, etc., on Property of Lessor. All
buildings, structures, improvements, fixtures, machinery,
apparatus, equipment, changes, alterations, repairs,
replacements, renewals, additions, betterments, restoration and
rebuilding erected, made or installed by Lessee in or upon or
used for the operation, maintenance or protection of the Leased
Property, as such (other than Lessee's Equipment), shall
immediately be and become the property of Lessor and shall
thereafter constitute part of the Leased Property.
<PAGE>
9. Impositions. Subject to section 17 relating to
contests, Lessee will pay all Impositions before any interest,
penalty, fine or cost may be added for non-payment, provided that
(a) if, by law, any Imposition may at the option of the payor be
paid in installments, Lessee may exercise such option, and, in
such event, Lessee shall give Lessor prompt written notice of
such exercise and shall pay all such installments (and interest,
if any) becoming due during the term of this Lease as the same
respectively become due and before any further interest or any
penalty, fine or cost may be added thereto; and (b) any
Imposition relating to a period, a part of which is included
within the term of this Lease and a part of which extends beyond
such term, shall, if an Event of Default shall not then exist
under this Lease, be apportioned between Lessor and Lessee as of
the expiration of such term. Lessee will furnish to Lessor and to
each holder of any mortgage on the Leased Property, for
inspection, within 30 days after the date when any Imposition
(unless being contested in conformity with section 17) would
become delinquent, official receipts, or other proof satisfactory
to Lessor or such mortgagee, as the case may be, evidencing the
payment of such Imposition. Lessor will pay in full when due and
payable all real estate taxes and betterment assessments in
respect of the Leased Property, except such as are includible in
additional rent and are not paid to Lessor by Lessee when such
additional rent is due, provided, however, that Lessor may
contest, by appropriate legal proceedings the amount or validity
or application, in whole or in part, of any tax or betterment
assessment, provided that (a) such proceedings shall operate to
suspend the collection thereof from the Leased Property, (b)
neither the Leased Property nor any part thereof would be in
substantial danger of being forfeited or lost, and (c) Lessor
shall have furnished such security, if any, as may be required in
the proceedings.
10. Compliance with Legal and Insurance Requirements, etc.
Subject to section 17 relating to contests, Lessee at its expense
will comply with all Legal Requirements, and all reasonable
Insurance Requirements of which Lessee shall have been given
written notice, unless variance therefrom is consented to in
writing by Lessor, whether or not compliance therewith shall
require structural changes in the Leased Buildings, will procure
and maintain all permits, licenses and other authorizations
required for any use of the Leased Property or any part thereof
then being made, and for the lawful and proper installation,
operation and maintenance of all equipment and appliances
necessary or appropriate for the operation and maintenance of the
Leased Property, and will comply with any former instruments of
record affecting the Leased Property or any part thereof at the
time in force.
<PAGE>
11. Condition of Leased Property. Lessee is and will be
fully familiar with the physical condition of the Leased Property
from time to time. Lessor has made and will make no
representations as to the condition of the Leased Property or the
fitness or availability of the Leased Property for any particular
use, and Lessor shall not be liable for any latent or patent
defect therein, as it may exist from time to time.
12. Repairs, etc. Subject to reasonable wear and tear,
Lessee will maintain the Leased Buildings as first class property
of the type of which they consist, will keep the Leased Property
and the sidewalks, curbs, vaults and vault space, if any,
adjoining the Leased Property in good and clean order and
condition, and will make all necessary or appropriate repairs,
replacements, renewals and betterments thereof, structural and
non-structural, ordinary and extraordinary, and foreseen and
unforeseen, all at the expense of the Lessee, except that during
the initial term and each renewal term of this Lease there shall
be credited at Lessee's option against the rent hereunder in
respect of amounts actually expended by Lessee for exterior
repairs of the Leased Buildings an amount not exceeding $5,000 in
each year during such terms while this Lease or any extension or
renewal thereof is in effect, and to the extent such credit is
not so taken in any such year it may be accumulated and so taken
in any subsequent year or years at any time prior to the
termination or other expiration of this Lease. Upon any such
termination or expiration Lessee shall be compensated by Lessor,
by credit against rent due hereunder or otherwise, for the full
aggregate amount of such accumulated credits to the date of such
termination or expiration, whether or not amounts in respect of
such credits have actually been expended by Lessee. Lessee will,
at its expense, and will hold the Lessor harmless from such
expense, take all action necessary to insure that the Leased
Property will at all times be provided with adequate facilities
for drainage of surface water and will promptly comply with all
Legal Requirements in such connection.
13. Shoring, etc. Lessee at its expense will do or cause
others to do all shoring of foundations and walls of the Leased
Buildings or of the ground adjacent thereto, and every other act,
necessary or appropriate for the safety and preservation thereof
by reason of or in connection with any excavation or other
building operation upon the Leased Property or any adjoining
property, whether or not the owner of the Leased Property shall,
by any Legal Requirement, be required to take such action or be
liable for failure to do so.
14. Replacement of Building Equipment. Lessee may, from
time to time, so long as it shall not be in default under this
Lease, remove and dispose of any equipment in the Leased
Buildings, provided that (except as to Lessee's Equipment).
<PAGE>
Lessee shall promptly replace such equipment with other equipment
at least equal in value and general utility to that removed.
15. Discharge of Liens, etc. Subject to section 17 relating
to contests, Lessee (unless such be created by Lessor or those
claiming through Lessor and not through Lessee) will not create
or permit to be created or to remain, and will discharge, any
lien, any rights in derogation of Lessor's title to the Leased
Property, any encumbrance or charge on account of any Imposition
or any mechanic's, laborer's, materialman's or vendor's lien
(including any such lien arising out of or due to labor performed
or materials furnished prior to the date of this Lease) or any
mortgage, chattel mortgage, conditional sale or title retention
agreement, or otherwise, upon the Leased Property or any part
thereof, or upon Lessee's leasehold interest therein (other than
general mortgages of Lessee or any of its affiliates securing
publicly held securities of Lessee or its affiliates), provided
that the existence of any mechanic's, laborer's, materialman's or
vendor's lien or right thereto shall not constitute a violation
of this section if payment of the sum involved is not yet due
under the terms of the contract in question. Subject to said
section 17, Lessee will not enter into any contract providing for
the postponement of any such payment for more than 30 days after
completion of the work.
16. No Claims against Lessor. Except as otherwise
specifically contemplated by sections 21 and 25, nothing
contained in this Lease shall constitute the consent or request
of Lessor, express or implied, for the performance of any labor
or the furnishing of any materials or other property in respect
of the Leased Property or any part thereof, nor as giving Lessee
any authority to contract for or permit the rendering of any
services or the furnishing of any materials or other property, so
as to permit the making of any claim against Lessor.
17. Contests. After prior written notice to Lessor and to
each holder known to Lessee, or of record, of any mortgage on the
Leased Property, Lessee may contest, by appropriate legal
proceedings conducted in good faith and with due diligence, the
amount or validity or application, in whole or in part, of any
taxes or assessments includible in additional rent or any
Imposition or other Legal Requirement or any lien, encumbrance or
charge referred to in section 15, provided that (a) in the case
of any such unpaid tax, assessment or Imposition, such
proceedings shall operate to suspend the collection thereof from
Lessor or the Leased Property, (b) in the case of a Legal
Requirement, neither the Lessor nor any mortgagee of the Leased
Property would be in danger of civil or criminal liability for
failure to comply therewith, (c) neither the Leased Property nor
any part thereof would, in the judgment of Lessor or any such
mortgagee, be in substantial danger of being forfeited or lost,
and (d) Lessee shall have furnished such security, if any, as may
<PAGE>
be required in the proceedings or reasonably requested by Lessor
or such mortgagee.
18. Utility Services. Lessee will pay or cause to be paid
all charges for all public or private utility services and all
sprinkler-system and protective services at any time rendered to
or in connection with the Leased Property or any part thereof,
will comply with all contracts relating to any such services, and
will do all other things required for the maintenance and
continuance of all such services.
19. Lessee's Insurance. Lessee at its expense will maintain
or cause to be maintained with insurers approved by Lessor (a)
during all terms of this Lease public liability insurance and
property damage liability insurance against any accident, injury
or damage to any person or property occurring on or about the
Leased Property or any part thereof in amounts and coverage
approved in writing by Lessor, (b) during all terms of this Lease
appropriate workmen's compensation insurance in respect of any
work on or about the Leased Property and (c) during the
preliminary term of this Lease insurance with respect to the
Leased Buildings against loss or damage by fire, lightning,
windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles, smoke, boiler explosion, war risks
(when and to the extent insurance against the same is obtainable
from the United States Government or any agency thereof), and
other risks customarily insured against by persons in businesses
similar to that of Lessee, as determined in good faith by Lessee,
all in amounts not less than the full insurable value (actual
replacement value less actual physical depreciation, exclusive of
cost of excavations, foundations and footings below the underside
of the lowest basement floor if excluded by the policy) of the
Leased Buildings as determined at Lessee's expense from time to
time. In each case such policies of insurance required by this
section shall be payable to Lessee and Lessor as their interests
may appear and may be under a blanket policy approved in writing
by Lessor and may have "deductible" clauses in amounts not
exceeding $10,000 in respect of any one event of casualty or such
greater amount as Lessor may approve in writing. In case there
shall occur any damage to or destruction of any of the Leased
Buildings or any part thereof by hazards to be insured against by
Lessee under (c) above, Lessee will promptly give written notice
thereof to Lessor and, subject to the provisions of section 23,
Lessee at its expense will promptly commence and complete with
due diligence the restoration, repair, replacement or rebuilding
(hereinafter collectively referred to as "Restoration") of the
Leased Buildings to as nearly as possible their value, condition
and character immediately prior to such damage or destruction,
with such alterations or additions, if any, as may be mutually
agreed upon by Lessor and Lessee.
<PAGE>
20. Lessor's Insurance. Lessor, at its expense, during the
initial and renewal terms of this Lease, will maintain insurance
with respect to the Leased Buildings against loss or damage by
fire, lightning, windstorm, hail, explosion, riot, riot attending
a strike, civil commotion, aircraft, vehicles, smoke, boiler
explosion, war risks (when and to the extent insurance against
the same is obtainable from the United States Government or any
agency thereof), and other risks customarily insured against by
persons in businesses similar to that of Lessee, as determined in
good faith by Lessor, all in amounts not less than the then full
insurable value (actual replacement value less actual physical
depreciation, exclusive of cost of excavations, foundations and
footings below the underside of the lowest basement floor if
excluded by the policy) of the Leased Buildings as determined
from time to time at Lessee's expense when requested by Lessee
but not more frequently than once in any three years. If John
Hancock Mutual Life Insurance Company is not the Lessor
hereunder, Lessor will furnish Lessee not more often than
annually with reasonable evidence of such insurance at the
written request of Lessee. John Hancock Mutual Life Insurance
Company may in any case be a self-insurer or co-insurer against
any risks.
21. Restoration if Damage or Destruction. In case there
shall occur any damage to or destruction of any of the Leased
Buildings or any part thereof by hazards to be insured against by
Lessor during the initial or any renewal term of this Lease,
Lessee will promptly give written notice thereof to Lessor and,
subject to the provisions of section 23, Lessor at its expense
will promptly commence and complete with due diligence the
Restoration of the Leased Buildings to as nearly as possible
their value, condition and character immediately prior to such
damage or destruction, with such alterations or additions, if
any, as may be mutually agreed upon by Lessor and Lessee.
22. Abatement of Rent. In case there shall occur any damage
to or destruction of any of the Leased Buildings or any part
thereof by hazards to be insured against by Lessor, and such
damage or destruction shall be so extensive as to render the
whole or any part thereof unsuitable for occupancy by Lessee for
the purposes for which Lessee occupied the same immediately prior
to such occurrence, a just proportion of the Basic Rent,
according to the nature and extent of the injury to the Leased
Buildings, shall be suspended or abated until the Leased
Buildings shall have been repaired or restored by Lessor at its
expense to substantially the same condition they were in
immediately prior to such casualty.
23. Right to Terminate in Case of Certain Damage, etc. In
case there shall occur any damage to or destruction of any of the
Leased Buildings, (a) if by such damage or destruction 60% or
more of the gross interior floor area of the building or
<PAGE>
buildings then constituting the Leased Buildings (but not
including in any such computation any floor area of buildings
used substantially exclusively for housing heating and air
conditioning apparatus) has been rendered unsuitable for
occupancy by Lessee for the purposes for which Lessee occupied
the same immediately prior to such occurrence, then either Lessor
or Lessee may terminate this Lease by 30 days' prior written
notice to the other given within 60 days after such damage or
destruction, or (b) if 100% of such floor area has been so
rendered unsuitable, then this Lease shall terminate ipso facto.
Lessor shall not have any claim against Lessee for any deficiency
in the proceeds of insurance recovered on account of such damage
or destruction.
24. Termination as Result of Taking or Title Paramount. In
the event of a Taking of or the successful assertion of title
paramount in the entire Leased Property or the entire Leased
Buildings, this Lease shall terminate ipso facto, and in the
event of a Taking or the successful assertion of title paramount
involving 50% or more of the gross interior floor area of the
building or buildings then constituting the Leased Buildings (but
not including in any such computation any floor area of buildings
used substantially exclusively for housing heating and air
conditioning apparatus), then either Lessor or Lessee may
terminate this Lease as of the date of such Taking or successful
assertion by 30 days' prior written notice to the other given
within 60 days after such Taking or successful assertion. Lessor
shall not have any claim against Lessee for any deficiency in the
proceeds of awards or insurance recovered on account of any such
Taking or successful assertion, as the case may be.
25. Taking or Title Paramount not Resulting in Termination.
In the event of a Taking of or the successful assertion of title
paramount in part of the Leased Property or of a temporary
easement or interest therein, not resulting in termination of
this Lease, then this Lease and the term hereof shall continue in
full force and effect and a just proportion of the Basic Rent
according to the nature and extent of the part so taken or
affected shall be suspended or abated until the Leased Property
or what remains thereof not so taken or affected shall be put in
proper condition by Lessor for occupation by Lessee for the
purposes for which Lessee occupied the same immediately prior
to such Taking or successful assertion, and thereafter the Basic
Rent shall be abated for the balance of the term of this Lease
according to the nature and extent of the part so taken or
affected. Lessor will, in any such event, promptly undertake, at
its expense, to put in proper condition the Leased Property or
what remains thereof for occupation by Lessee for the purposes
for which Lessee occupied the same immediately prior to such
Taking or successful assertion.
<PAGE>
26. Damages for Taking. Lessor reserves to itself, and
Lessee assigns to Lessor, all rights to damages accruing on
account of any Taking or by reason of any act of any public or
quasi-public authority (other than changes of grade) for which
damages are payable. Lessee agrees to execute such instruments of
assignment as may be reasonably required by Lessor and to join in
any petition for the recovery of such damages if requested by
Lessor, and to turn over to Lessor any damages that may be
recovered in any such proceeding. It is agreed and understood,
however, that Lessor does not reserve to itself, and Lessee does
not assign to Lessor, any portion of the award allocable to
Lessee's Equipment or specifically paid on account of
consequential damages to Lessee for the disturbance of its
occupancy of the Leased Property under laws in effect at the time
of such Taking.
27. Change of Grade. In case the grade of any street
abutting on the Leased Property shall be changed, Lessee, at its
expense, will promptly effect whatever Restoration is necessary
to restore the Leased Property to substantially its former
condition and utility and, in case the cost of such Restoration
shall exceed Lessee's award and any interest paid in respect
thereof, Lessor's award shall be applied (after deducting all
costs, fees and expenses of Lessor not paid by Lessee incident to
the collection thereof), if Lessee is not in default under this
Lease, to reimburse Lessee for the excess upon receipt by Lessor
of evidence reasonably satisfactory to Lessor of the cost and
completion of such Restoration.
28. Award if Lessee in Default. Anything in this Lease to
the contrary notwithstanding, if at the time of any Taking or any
change of grade, or at any time thereafter, Lessee shall be in
default under this Lease and such default shall continue, Lessor
shall be empowered, in the name of Lessee or otherwise, to file
and prosecute Lessee's claim, if any, for an award on account of
the Taking or change of grade and to collect such award and apply
the same, after deducting all costs, fees and expenses of Lessor
incident to the collection thereof, to the curing of such default
and any other then existing defaults under this Lease; any
balance remaining after such application and after Lessor shall
have received therefrom the amount, if any, required by the
provisions of section 26 (if applicable) to be received by Lessor
on account of rights to damages assignable to Lessor by Lessee,
shall, unless the term of this Lease shall have expired, be paid
to Lessee.
29. Indemnification of Lessor. Lessee will protect,
indemnify and save harmless Lessor from and against all
liabilities, obligations, damages, penalties, claims, causes of
action, costs, charges and expenses, including attorneys' fees
and expenses, which may be imposed upon or incurred by or
asserted against Lessor by reason of (a) any accident, injury or
<PAGE>
damage to any person or property occurring on or about the Leased
Property or any part thereof, (b) any use, non-use or condition
of the Leased Property or any part thereof, (c) any claim for the
performance of labor or the furnishing of materials or other
property in respect of the Leased Property or any part thereof
except to the extent Lessor is obligated in these respects
pursuant to sections 21 and 25, and (d) any failure on the part
of Lessee to perform or comply with any of the provisions of this
Lease. In case any action or proceeding is brought against Lessor
by reason of any such occurrence, Lessee upon Lessor's request
will at Lessee's expense resist and defend such action or
proceeding, or cause the same to be resisted and defended, either
by counsel designated by Lessee and approved by Lessor, or, where
such occurrence is covered by liability insurance, by counsel
designated by the insurer.
30. Restriction against Mortgages, Assignments, Subleases,
etc. Except to affiliates and to others for stores and service
facilities which are for the convenience of the occupants of the
Property, and except to such others as Lessor may approve in
writing, Lessee's interest in this Lease may not (other than by
general mortgages of Lessee or any of its affiliates securing
publicly held securities of Lessee or its affiliates) be
mortgaged, encumbered, assigned, subleased or otherwise
transferred, in whole or in part, by Lessee or by operation of
law, merger, consolidation or otherwise and, except as aforesaid,
no part of the Leased Property may be made the subject of any
license or privilege, and without, in the case of any such
assignment or transfer of any interest in this Lease, the
execution and delivery to Lessor by the assignee or transferee of
an instrument, satisfactory in substance and form to Lessor,
whereby such assignee or transferee assumes all, or a
proportionate part, of the obligations of Lessee under this
Lease. From and after any such assignment or transfer the
obligations of each such assignee and transferee and of the
original Lessee named as such in this Lease to fulfill all of the
obligations of Lessee under this Lease shall be joint and
several, and the obligations of such original Lessee under this
Lease shall continue in full force and effect as the obligations
of a principal and not as the obligations of a guarantor or
surety.
31. Assignment of Subrents, etc. Lessee hereby irrevocably
assigns to Lessor all rents due or to become due from any
assignee or sublessee of this Lease or any tenant or occupant of
the Leased Property or any part thereof, together with the right
to collect and receive the same, provided that so long as Lessee
is not in default under this Lease, Lessee shall have the right
to collect and receive such rents for its own uses and purposes.
Upon any default by Lessee under this Lease, Lessor shall, until
such default shall have been cured, have absolute title to such
<PAGE>
rents and the absolute right to collect the same, provided that
unless Lessor gives written notice to any assignee or sublessee
or any tenant or occupant of the Leased Property permitted
hereunder that Lessee is in default under this Lease no such
assignee, sublessee, tenant or occupant shall be held liable to
Lessor for making payment of such rents to Lessee. Lessor shall
apply to the Basic Rent or additional rent due under this Lease
the net amount (after deducting all costs and expenses of
collection) of any rents so collected and received by it.
32. Performance on Behalf of Other Party. If either Lessee
or Lessor at any time shall fail to make any payment or perform
any act required by this Lease to be made or performed by it, the
other party, without notice to or demand upon the party so
failing and without waiving or releasing the party so failing
from any obligation or Event of Default under this Lease, may
(but shall be under no obligation to) at any time thereafter make
such payment or perform such act for the account and at the
expense of the party so failing. All sums so paid and all costs
and expenses (including, without limitation, attorney's fees and
expenses) so incurred, together with interest thereon at the rate
of 6% per annum from the date of payment or incurring, shall be
paid by the party so failing to the other party on demand, and,
if Lessee is the party so failing, shall constitute additional
rent payable by Lessee under this Lease.
33. Entry by Lessor. Lessor and its authorized
representatives shall have the right to enter the Leased Property
at all reasonable times (a) for the purpose of inspecting the
same or for the purpose of doing any work under sections 21, 25
or 32, and may take all such action thereon as may be necessary
or appropriate for any such purpose (nothing contained in this
Lease or otherwise shall create or imply any duty upon the part
of Lessor to make any such inspection, or do any such work except
as provided in sections 21 and 25), and (b) for the purpose of
showing the Leased Property to prospective purchasers or
mortgagees and, at any time within 12 months prior to the
expiration of the then current term of this Lease (unless Lessee
theretofore shall have given Lessor written notice of its
election to purchase the Leased Property or unless Lessee, if
entitled to renew this Lease for a further term, theretofore
shall have given Lessor written notice of its election to renew),
for the purpose of showing the same to prospective tenants, and
within such period to attach to the Leased Buildings
advertisements for sale or letting. No such entry shall
constitute an eviction of Lessee.
34. Renewal Terms. The term of this Lease may, at the
option of Lessee (evidenced by written notice given to Lessor at
least 12 months prior to the expiration of the initial term or
then current renewal term), be extended for five years (such
period being herein sometimes referred to as a "renewal term"),
<PAGE>
but such right of extension may not be exercised for more than
three such renewal terms, provided, in each case, that the Lessee
shall not be in default under this Lease and that this Lease
shall not have been theretofore terminated for any reason. Each
renewal term shall be upon the same terms, covenants and
conditions as are provided in this Lease in respect of the
initial term, except that Lessee shall have no option to extend
the term of this Lease beyond the last such renewal term and
except that the Basic Rent for each such renewal term shall be an
amount per annum equal to $159,920, less $2,464 or a
proportionate part thereof for each $100,000 or part thereof by
which the Basic Cost to Lessor is less than $3,000,000. The Basic
Rent for each renewal term shall be payable in equal monthly
installments in advance on the first day of each calendar month.
A new lease need not be executed upon the exercise of any of
these options, and this Lease will remain in full force and
effect, changed only as to matters specified in this section.
35. Events of Default. If any one or more of the following
events (herein sometimes called an "Event of Default" or "Events
of Default") shall happen:
(a) if default shall be made in the due and punctual
payment of any Basic Rent, when and as the same shall become
due and payable; or
(b) if default shall be made in the due and punctual
additional rent payable under this Lease, when and as the
same shall become due and payable, and such default shall
continue for a period of 10 days; or
(c) if default shall be made by Lessee in the
performance of or compliance with any of the covenants,
agreements, terms or conditions contained in this Lease
other than those referred to in the foregoing subdivisions
(a) and (b), and such default shall continue for a period of
30 days after written notice thereof from Lessor to Lessee;
or
(d) if Lessee shall file a voluntary petition in
bankruptcy or shall be adjudicated a bankrupt or insolvent,
or shall file any petition or answer seeking or acquiescing
in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for
itself under any present or future federal, state or other
statute, law or regulation, or shall seek or consent to or
acquiesce in the appointment of any trustee, receiver or
liquidator of Lessee or of all or any substantial part of
its properties or of the Leased Property, or shall make any
general assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as
they become due; or
<PAGE>
(e) if a petition shall be filed against Lessee
seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief
under any present or future federal, state or other statute,
law or regulation, and shall remain undismissed or unstayed
for an aggregate of 90 days (whether or not consecutive), or
if any trustee, receiver or liquidator of Lessee or of all
or any substantial part of its properties or of the Leased
Property shall be appointed without the consent or
acquiescence of Lessee and such appointment shall remain
unvacated or unstayed for an aggregate of 90 days (whether
or not consecutive);
then and in any such event Lessor at any time thereafter may give
written notice to Lessee specifying the occurrence giving rise to
such Event of Default or Events of Default and stating that this
Lease and the term hereby demised shall expire and terminate on
the date specified in such notice, which shall be at least 10
days after the giving of such notice, and upon the date specified
in such notice, subject to the provisions of section 37 relating
to the survival of Lessee's obligations, the term of this Lease
and the estate and interests hereby demised shall expire and
terminate by limitation and all rights of the Lessee under this
Lease shall cease unless before such date (i) all arrears of
Basic Rent and additional rent and all other amounts payable by
Lessee under this Lease, together in each case with interest
thereon at the rate of 6% per annum from the time when the same
became due and payable, and all costs and expenses (including,
without limitation, attorneys' fees and expenses) incurred by or
on behalf of Lessor in the premises, shall have been fully paid
by Lessee, and (ii) all other defaults at the time existing under
this Lease shall have been fully cured and made good or secured
to the satisfaction of Lessor. Lessee will pay, as additional
rent hereunder, all costs and expenses incurred by or on behalf
of Lessor, including, without limitation, attorneys' fees and
expenses, occasioned by any default by Lessee under this Lease.
36. Repossession, Re-letting, etc., by Lessor. At any time
after any expiration of the term of this Lease as provided in
section 35, Lessor, without further notice and with no liability
to Lessee, may repossess the Leased Property, by force, summary
proceedings, ejectment or otherwise, and may remove Lessee and
all other persons and any and all property from the Leased
Property. After any such expiration, Lessor shall use reasonable
efforts and diligence, (a) to re-let the Leased Property for such
term or terms and on such terms and conditions as are practicable
in the light of all the circumstances then existing and (b) to
collect and receive the rents therefrom, all as determined in
good faith by Lessor, and Lessor shall not otherwise be liable
for any failure to collect any rent due upon any such re-letting.
<PAGE>
37. Survival of Lessee's Obligations; Damages. No
expiration of the term of this Lease or repossession of the
Leased Property, as provided in sections 35 and 36, shall relieve
Lessee of its liability and obligations under this Lease, all of
which shall survive any such expiration or repossession.
(A) In the event of any such expiration, Lessee shall pay to
Lessor the Basic Rent and all additional rent and other charges
required to be paid by Lessee up to the time of such expiration,
and thereafter Lessee, until the end of what would have been the
term of this Lease in the absence of such expiration and whether
or not the Leased Property or any part thereof shall have been
re-let, shall be liable to Lessor for, and shall pay to Lessor,
as and for liquidated agreed current damages for Lessee's
default:
(a) the Basic Rent (less an amount equal to $5,000 per
annum) and all additional rent, less any credits provided
for in section 3, and other charges which would be payable
under this Lease by Lessee if the term of this Lease had not
expired, less
(b) the net proceeds, if any (which shall include,
whether or not paid to Lessor, all amounts paid by the
lessee under such re-letting specifically in respect of real
estate taxes on the Leased Property and insurance on the
Leased Property of the types required to be carried by
Lessor by section 20) of any re-1etting effected for the
account of Lessee pursuant to the provisions of section 36,
after deducting all Lessor's expenses in connection with
such re-1etting, including, without limitation, all
repossession costs, brokerage commissions, legal expenses,
attorneys' fees, expenses of employees, alteration costs,
and expenses of preparation for such re-letting, and
excluding, without limitation, expenses for such real estate
taxes or insurance.
Lessee shall pay such current damages to Lessor monthly on the
days on which the Basic Rent would have been payable under this
Lease if the terse of this Lease had not expired, and Lessor
shall be entitled to recover the same from Lessee on each such
day.
If any statute or rule of law governing a proceeding in
which such liquidated final damages are to be proved shall
validly limit the amount thereof to an amount less than the
amount above agreed upon, Lessor shall be entitled to the maximum
amount allowable under such statute or rule of law.
(B) At any time after such expiration, Lessee may pay to
Lessor a sum equal, if such expiration is during the preliminary
term of this Lease, to the Basic Cost to Lessor, and, if such
expiration is during the initial or any renewal term of this
<PAGE>
Lease, an amount equal to the aggregate of the discounted values
of the monthly installments of the Basic Rent (less an amount
equal to $5,000 per annum) from the date of such payment to the
date the then current term of this Lease would have normally
expired had such expiration not occurred, obtained by the monthly
application of a discount rate of 5% per annum, whereupon, after
such payment, all of Lessee's liabilities and obligations for the
payment of Basic Rent under this Lease, except such as have
theretofore accrued and remain unsatisfied, shall cease. In such
event, Lessee shall be entitled to be paid by Lessor, at least
annually, until the then current term of this Lease would have
expired had such expiration not occurred, an amount (which
together with other such amounts paid by Lessor to Lessee from
and after such election shall not be in excess of the total
rentals that would be payable by Lessee during the entire
remaining portion of the then current term of this Lease) equal
to the net proceeds received by Lessor from any re-letting of the
Leased Property (which shall include, whether or not paid to
Lessor, all amounts paid by the lessee under such re-letting
specifically in respect of (i) real estate taxes on the Leased
Property and (ii) insurance on the Leased Property of the types
required by section 20 to be carried by Lessor) after all
Lessor's expenses in connection with such re-letting, including,
without limitation, all repossession costs, brokerage
commissions, legal expenses, attorneys' fees, expenses of
employees, alteration costs, and expenses of preparation for such
re-letting (Lessor's expenses shall not include expenses for real
estate taxes or insurance of the types required to be carried by
Lessor by section 20), all as determined by Lessor in accordance
with Lessor's accounting practices and principles, provided,
however, that at any time, prior to the time the current term of
this Lease in effect at the time of such expiration would have
expired but for such expiration, when Lessor has re-let or re-
lets the Leased Property or any part thereof, it will, upon the
written request of Lessee, in respect of any such re-letting
which is made under a lease for a term of years to a lessee who,
or whose obligations under such lease are guaranteed by a
guarantor who, in the reasonable judgment of Lessor, is a credit
risk substantially as good as Lessee, pay to Lessee, in lieu of
that portion of the annual payments of net proceeds of re-letting
previously provided for in this sentence which are of the
character of the proceeds included in the payment of discounted
installments provided for below, an amount (which together with
other such amounts shall not be in excess of the amount that
Lessee would have been entitled to pay to Lessor in lieu of the
annual payments of Basic Rent previously provided for in this
section had this Lease so expired on the date of such payment by
Lessor) equal to the aggregate of the discounted values of the
installments of the net proceeds to be received under any such
re-letting that are not of the character of additional rent under
this Lease, including in such proceeds any amounts, whether or
not paid to Lessor, up to $75,000 per annum payable by the
lessee under such re-letting specifically in respect of real
<PAGE>
estate taxes on the Leased Property and any amounts up to $6,000
per annum payable by the lessee under such re-letting
specifically in respect of insurance of the types required to be
carried by Lessor by section 20, from the date of such payment to
the earlier of (a) the date the then current term of the lease
under which such re-letting is effected would normally expire or
(b) the time the current term of this Lease in effect at the time
of such expiration of this Lease would have expired but for such
expiration of this Lease, obtained by the application, at such
times as installments of such rents fall due, of a discount rate
of 5% per annum, and provided, further, that if in any year
during such period the real estate taxes on the Leased Property
are less than $75,000 and/or the cost of such insurance is less
than $6,000, the Lessor will compensate Lessee for any such
differential by an appropriate credit or credits against
additional rent or otherwise; Lessor shall also pay to Lessee, as
received, any additional such proceeds up to an amount equal to
the amount by which such proceeds theretofore paid by Lessor to
Lessee have been, since the date of such election, less than the
aggregate of the installments of Basic Rent due from the date of
such election.
(C) At any time after any such expiration, whether or not
Lessor shall have collected any current damages under (A) above
and whether or not any action shall have been taken under (B)
above, Lessor shall be entitled to recover from Lessee, and
Lessee shall pay to Lessor, within 30 days after demand as and
for liquidated and agreed final damages for Lessee's default and
in lieu of all damages beyond the date of such payment, an amount
equal to the excess, if any, of
(x) The Basic Rent (less an amount equal to $5,000 per
annum) and additional rent and other charges which would be
payable under this Lease from the date of such demand (or, if it
be earlier, the date to which Lessee shall have satisfied in full
its obligation under this section to pay current damages) for
what would be the then unexpired term of this Lease if the same
remained in effect,
over
(y) the then fair net rental value of the Leased Property
for the same period,
minus a part of any amount paid by Lessee to Lessor under (B)
above equal to the amount that Lessee would have been entitled to
pay to Lessor under (B) above had such payment been made on the
date of such payment of liquidated damages and plus a part of any
amount paid by Lessor to Lessee under (B) above equal to the
amount that Lessor would have had to pay to Lessee under (B)
above had such payment been requested and made on the date of
such payment of liquidated damages, whereupon, after such
payment, all of Lessee's liabilities and obligations under this
<PAGE>
Lease, except such as have theretofore accrued and remain
unsatisfied, shall cease.
38. Lessee's Waiver of Rights. In the event of any
expiration of the term of this Lease, Lessee so far as permitted
by law, hereby expressly waives (a) any notice of re-entry or of
the institution of legal proceedings to that end, (b) any right
of redemption or re-entry or re-possession or to restore the
operation of this Lease, (c) any right to a trial by jury in the
event of summary proceedings, and (d) the benefits of any laws
now or hereafter in force exempting property from liability for
rent or for debt.
39. No Waiver, etc., by Lessor. No failure by Lessor to
insist upon the strict performance of any provision of this Lease
or to exercise any right, power, or remedy consequent upon a
breach thereof, and no acceptance of full or partial rent during
the continuance of any such breach, shall constitute a waiver of
any such breach or provision. No waiver of any breach shall
affect or alter this Lease which shall continue in full force and
effect with respect to any other then existing or subsequent
breach thereof.
40. Lessor's Remedies Cumulative, etc. Each right, power
and remedy of Lessor provided for in this Lease shall be
cumulative and concurrent and shall be in addition to every other
right, power or remedy provided for in this Lease or now or
hereafter existing at law or in equity or by statute or
otherwise, and the exercise or beginning of the exercise by
Lessor of any one or more of the rights, powers or remedies
provided for in this Lease or now or hereafter existing at law or
in equity or by statute or otherwise shall not preclude the
simultaneous or later exercise by Lessor of any or all other such
rights, powers or remedies.
41. Surrender of Leased Property. Lessee shall, upon any
expiration or earlier termination of this Lease peaceably vacate
and surrender to Lessor the Leased Property in good order,
condition and repair (ordinary wear and tear, and damage,
destruction, successful assertions of title paramount and Takings
referred to in sections 21 and 25 excepted) except as permitted
by sections 23 and 24.
42. Quiet Enjoyment. Lessee, upon paying the Basic Rent and
all additional rent and other charges provided for in this Lease
and performing and complying with all the provisions of this
Lease, shall, in addition to its rights under sections 24 and 25,
lawfully and quietly hold, occupy and enjoy the Leased Property
during the terms of this Lease without hindrance or molestation
of Lessor, or others claiming through Lessor and not through
Lessee, subject, however, to the matters, referred to in section
1 and subject to any Taking and to any acts of God or the public
enemy or the armed forces of the United States.
<PAGE>
43. Conveyance by Lessor. In case John Hancock Mutual Life
Insurance Company, the original Lessor hereunder, or any
successor owner of the Leased Property, shall convey or otherwise
dispose of the Leased Property, all liabilities and obligations
on the part of said Company or successor owner as Lessor under
this Lease accruing thereafter shall terminate, and thereupon all
such liabilities and obligations shall be binding upon the new
owner.
44. Certificate as to Defaults, etc. Within 90 days after
the end of each calendar year, Lessee will furnish to Lessor a
certificate signed by the President or a Vice President and the
Treasurer or an Assistant Treasurer of Lessee to the effect that
there exists no condition or event which constitutes an Event of
Default, or which, after notice or lapse of tune or both, would
constitute an Event of Default, or, if any such condition or
event exists, specifying the nature and period of existence
thereof and what action Lessee is taking or proposes to take with
respect thereto.
45. Estoppel Certificate by Lessee. Lessee at any time or
from time to time at the request of Lessor will execute,
acknowledge and deliver to Lessor a certificate by Lessee
certifying (a) that this Lease is unmodified and in full force
and effect (or, if there have been modifications, that the same
is in full force and effect as modified and stating the
modifications), (b) whether or not there are then existing any
offsets or defenses against the enforcement of any of the
provisions of this Lease (and, if so, specifying the same) and
(c) the dates, if any, to which the Basic Rent and additional
rent and other charges have been paid in advance. Any such
certificate may be relied upon by any prospective purchaser or
mortgagee of the Leased Property or any part thereof.
46. Furnishing of Financial Statements, etc. So long as
Lessor shall be John Hancock Mutual Life Insurance Company,
Lessee will furnish, or cause to be furnished, to Lessor
(a) as soon as practicable after the end of each fiscal
year and in any event within 120 days thereafter, a balance sheet
of Lessee (in consolidated form if Lessee shall have any
consolidated subsidiaries) as at the end of such year and a
statement of income and of surplus of Lessee (in consolidated
form if Lessee shall have any consolidated subsidiaries) for such
year, setting forth in each case in comparative form
corresponding figures for the previous fiscal year, all in
reasonable detail and certified by independent public accountants
of recognized standing selected by Lessee and approved by Lessor;
and
(b) with reasonable promptness, such other information
regarding Lessee and the Leased Property and the use thereof as
Lessor from time to time may reasonably request.
<PAGE>
47. Acceptance of Surrender. No surrender to Lessor of this
Lease or of the Leased Property or any part thereof or of any
interest therein by Lessee shall be valid or effective unless
required by the provisions of this Lease or unless agreed to and
accepted in writing by Lessor.
48. Joinder of Lessor. Lessor shall not be required to join
in any contest referred to in section 17 unless any Legal
Requirement requires that such contest be brought by or in the
name of Lessor, in which event Lessor shall join in such contest
or permit the same to be brought in its name, provided that (a)
Lessee shall pay all expenses in connection therewith and
indemnify and save harmless Lessor from and against the same and
any loss, and (b) Lessor shall not be required to join in such
contest or permit the same to be brought or continued in its name
or to take any action in connection therewith if such contest or
action would in Lessor's opinion be prejudicial to its best
interest as owner of the Leased Property or otherwise.
49. Occupant Agent for Service. Lessee hereby irrevocably
constitutes and appoints such corporation, association,
partnership, individual or other entity as from time to time
shall be in actual possession of the Leased Property as the agent
and attorney-in-fact of Lessee to accept service of process in
any action, suit or proceeding by Lessor relating to this Lease
or the Leased Property, and hereby irrevocably submits, for the
purposes of any such action, suit or proceeding, to the
jurisdiction of the courts of all jurisdictions in which the
Leased Property is situated, provided that a copy of any process
so served shall be mailed forthwith to Lessee as provided in
section 50.
50. Notices, etc. All notices, demands, requests and other
instruments under this Lease shall be in writing, and shall be
considered properly given if sent by United States registered or
certified mail, postage prepaid, (a) if to Lessee, addressed to
Lessee at 441 Stuart Street, Boston 16, Massachusetts, or at such
other address as Lessee from time to time may have designated by
written notice to Lessor, and (b) if to Lessor, addressed to
Lessor at 200 Berkeley Street, Boston 17, Massachusetts,
Attention: City Mortgage Department, or at such other address as
Lessor from time to time may have designated by written notice to
Lessee.
51. Definitions. As used herein the following terms have
the following respective meanings:
additional rent: as defined in section 3.
affiliate: an entity controlling, controlled by or under
common control with Lessee.
Agreement: as defined in section 5.
<PAGE>
Basic Cost to Lessor: $19,856.39 plus the Cost of the New
Buildings from time to time as defined in the Agreement.
Basic Rent: as defined in section 2.
default: any failure on the part of Lessee to perform or
comply with any of the provisions of this Lease, whether or not
constituting an Event of Default.
Event of Default: as defined in section 35.
Impositions: all water, sewer and other rents, rates and
charges, excises, levies, license fees, permit fees and other
authorization fees and all other charges (in each case whether
general or special, ordinary or extraordinary, or foreseen or
unforeseen), of every character (including all penalties or
interest thereon) which at any time during or in respect of any
term of this Lease may be assessed, levied, confirmed or imposed
on or in respect of or be a lien upon (a) the Leased Property or
any part thereof or any rent therefrom or any estate, right or
interest therein, or (b) any occupancy, use or possession of the
Leased Property or any part thereof, other than any taxes,
assessments (including, without limitation, assessments for
public improvements or benefits whether or not commenced or
completed during the term of this Lease), and other than any
franchise, capital stock or similar tax of Lessor, or any income
or excess profits tax of Lessor determined on the basis of its
general income or revenues or any estate, inheritance,
succession, gift, capital levy or similar tax of Lessor.
Insurance Requirements: all terms and provisions of each
insurance policy covering or applicable to the Leased Property or
any part thereof, all requirements of the issuers of all such
policies, all orders, rules, regulations and other requirements
of the National Board of Fire Underwriters (or any other body
exercising similar functions), and all reasonable rules and
regulations of John Hancock Mutual Life Insurance Company in
respect of any risks required to be insured against by it
hereunder as to which it is a self-insurer, applicable to or
affecting the Leased Property or any part thereof or any use or
condition of the Leased Property or any part thereof.
Lease Modification Closing: as defined in the Agreement
referred to in section 5.
Leased Buildings: as defined in section 1.
Leased Property: as defined in section 1.
Legal Requirements: all statutes, codes, laws, acts,
ordinances, by-laws, orders, judgments, decrees, injunctions,
rules, regulations, permits, licenses, authorizations, directions
and requirements of all federal, state, county, municipal and
<PAGE>
other governments, departments, commissions, boards, courts,
authorities, officials and officers, foreseen or unforeseen,
ordinary or extraordinary, which now or at any time hereafter may
be applicable to the Leased Property or any part thereof, or any
of the streets, alleys, passageways, sidewalks, curbs, gutters,
vaults and vault space adjoining the Leased Property or any part
thereof, or any use, manner of use or condition of the Leased
Property or any part thereof.
Lessee's Equipment: all machinery (whether or not affixed to
the Leased Buildings), furniture, furnishings, and other personal
property, other than items for which the Lessor made
reimbursement of the cost to the Lessee, not used or procured for
use in connection with the operation, maintenance or protection
of the Leased Buildings, as such, installed by Lessee in the
Leased Buildings.
Restoration: as defined in section 21.
Taking: a taking of all or part of the Leased Property, or
any interest therein or right accruing thereto, as the result of
or in lieu of condemnation or eminent domain.
term of this Lease; term hereof: the preliminary term of
this Lease and the initial term of this Lease and any renewal
term of this Lease for which Lessee shall have exercised its
renewal option.
52. Purchase of Leased Property. Lessee may, by written
notice to Lessor given not more than thirty nor less than
eighteen months prior to the end of the initial term or any
renewal term of this Lease elect to have the Leased Property
appraised by three qualified appraisers, one of whom shall be
promptly selected by Lessor, one of whom shall be promptly
selected by Lessee and one of whom shall be promptly selected by
said two appraisers selected by Lessor and Lessee, which
appraisers shall undertake, at Lessee's sole expense, to appraise
the Leased Property at least by the thirtieth day before the
beginning of the last year of the then current term of this
Lease. Upon receipt of a written appraisal agreed upon in writing
by at least two of said appraisers, Lessee may, by written notice
to Lessor given prior to the beginning of such last year, elect
and, subject to obtaining necessary approvals of regulatory
authorities having jurisdiction, become obligated to purchase the
Leased Property at any time designated in such notice during such
last year and at least sixty days after the date of such notice,
for a Purchase Price equal to the then value of the Leased
Property as appraised by said appraisers, as aforesaid, which
Purchase Price shall be increased by an amount equal to the net
amount theretofore expended by Lessor to restore the Leased
Property after any damage thereto or destruction or Taking
thereof or successful assertion of title paramount thereto which
occurred prior to such appraisal, and is reflected in such
<PAGE>
appraisal, and which Purchase Price shall be decreased by the
appraised amount of any loss in value of the Leased Property due
to any damage, destruction, successful assertion of title
paramount or Taking referred to in sections 21, 23, 24 or 25
which occurred after such appraisal and is not reflected in such
appraisal, to the extent that such loss has not been restored by
Lessor, such appraised amount to be determined by said appraisers
as soon as possible after the occurrence involving such decrease
in value in the same manner as the Purchase Price was determined,
provided, that such Purchase Price shall in no event be less than
$250,000 if such purchase is made during the last year of the
initial term of this Lease, nor less than $175,000 if such
purchase is made during the last year of the first renewal term
of this Lease, nor less than $100,000 if such purchase is made
during the last year of the second renewal term of this Lease. If
necessary approvals of regulatory authorities have not been
obtained within 90 days of Lessee's notice of election, such
election shall be voided without liability to Lessee or Lessor,
and Lessee may elect, by written notice to Lessor given within 10
days after said 90-day period to extend this Lease for any
renewal term or terms provided for in section 34 notwithstanding
the fact that said notice would not otherwise be timely under
said section 34.
If Lessee shall so notify Lessor, Lessor shall, on the date
designated in such notice, furnish to Lessee at the place to
which service of notices upon Lessee is then to be given under
section 50 of this Lease, a quitclaim deed to the Leased
Property, conveying to Lessee a good and marketable title in fee
simple to the Leased Property, free and clear of all mortgages,
liens, charges, encumbrances, easements, conditions and rights of
re-entry or forfeiture, subject only to: (a) this Lease; (b)
matters, including, without limitation, those set forth in
Schedule A hereto, existing at the date of this Lease; (c) all
taxes, special assessments and Impositions and liens required to
be paid as additional rent or otherwise or discharged by the
Lessee under any of the provisions of this Lease; (d) acts done
by the Lessee hereunder or by Lessor at the request of or with
the consent of Lessee, and claims by persons claiming by, through
or under the Lessee; and (e) all Takings, and all other matters,
if any, to which this Lease is subject other than matters created
by the Lessor hereunder or at the request of or with the consent
of Lessor, and by persons, other than the Lessee and those
claiming by, through or under the Lessee, claiming by, through or
under the Lessor. If Lessor is unable, with the exercise of due
diligence, to convey such title to Lessee, in addition to any
other remedies conferred by law, Lessee may elect either (a) to
take the title as it then is, and deduct from the Purchase Price
liens or encumbrances of an ascertainable amount, or (b) to
terminate its obligation to purchase the property, in which event
the Lessee may (notwithstanding the fact that the Lessee may have
elected to extend the term hereof, as provided in section 34) by
notice in writing given to the Lessor within 3 months after the
<PAGE>
date of such failure, terminate this Lease as of the last day of
any succeeding month, provided that not more than 6 full calendar
months shall elapse between the date of such failure and the date
of such termination or (c) to extend this Lease for any renewal
term or terms as provided in section 34 upon written notice
thereof given to Lessor within 2 months after the date of such
failure or the earlier delivery by Lessor of written notice that
it will so fail (notwithstanding the fact that such notice would
not otherwise be timely under section 34). If such 2-month period
extends beyond the end of any term of this Lease such term shall
be deemed to be extended to the end of such period or the earlier
election by Lessee so to extend this Lease.
53. Miscellaneous. Wherever in this Lease it is provided
that any act or thing shall require the consent or approval of
the Lessor, such requirement shall be deemed to include a
provision that such consent or approval shall not be unreasonably
withheld. If any provision of this Lease or any application
thereof shall be invalid or unenforceable, the remainder of this
Lease and any other application of such provision shall not be
affected thereby. Neither this Lease nor any term or provision
hereof may be changed, waived, discharged or terminated orally,
but only by an instrument in writing signed by the party against
which the enforcement of the change, waiver, discharge or
termination is sought. This lease shall be governed by and
construed and enforced in accordance with the laws of the
Commonwealth of Massachusetts. The captions in this Lease are for
convenience of reference only and shall in no way define, limit
or describe any of the provisions of this Lease. This Lease may
be executed in several counterparts, each of which shall be an
original but all of which shall constitute but one and the same
instrument. The covenants and agreements of this Lease shall,
subject to the provisions of this Lease, bind and inure to the
benefit of Lessor, its successors and assigns, and Lessee, its
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this
Lease to be executed and their respective corporate seals to be
hereunto affixed and attested by their respective officers
thereunto duly authorized.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY,
Lessor
Attest: (CORPORATE SEAL) Gordon E. Emerson, JR.
Second Vice President
R. L. McVie
Assistant Secretary
<PAGE>
Witness:
Charles S. Perkins
MASSACHUSETTS ELECTRIC COMPANY
Lessee
Attest: (CORPORATE SEAL) R. Leigh Fitzgerald
Vice President
Joseph X. Corbett
Clerk
Witness:
R. D. Hartshorne
THE COMMONWEALTH OF MASSACHUSETTS }
COUNTY OF SUFFOLK } ss.
On this 30th day of December, 1964, before me, appeared
Gordon E. Emerson, Jr. and R. L. McVie, to me personally known,
who being by me duly sworn, did say that they are the Second Vice
President and Assistant Secretary, respectively, of John Hancock
Mutual Life Insurance Company, a corporation, and that the seal
affixed to the foregoing instrument is the corporate seal of said
corporation, and that said instrument was signed and sealed by
them on behalf of said corporation by authority of its Board of
Directors, and the said Gordon E. Emerson. Jr. and R. L. McVie
acknowledged said instrument to be the free act and deed of said
corporation.
THOMAS J. FOLEY
Notary Public,
(NOTARIAL SEAL)
My Commission expires
THOMAS J. FOLEY
Notary Public in and for
The Commonwealth of Massachusetts
My Commission Expires May 14, 1971
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS }
COUNTY OF SUFFOLK } ss.
On this 30th day of December, 1964, before me, appeared R.
Leigh Fitzgerald and Joseph X. Corbett, to me personally known,
who being by me duly sworn, did say that they are the Vice
President and Clerk, respectively, of Massachusetts Electric
Company, a corporation, and that the seal affixed to the
foregoing instrument is the corporate seal of said corporation,
and that said instrument was signed and sealed by them on behalf
of said corporation by authority of its Board of Directors, and
the said R. Leigh Fitzgera1d and Joseph X. Corbett acknowledged
said instrument to be the free act and deed of said corporation.
ROBERT D. HARTSHORNE, JR.,
Notary Public.
(NOTARIAL SEAL)
My Commission expires
April 29, 1971
<PAGE>
SCHEDULE A
All and the same premises conveyed to John Hancock Mutual
Life Insurance Company, Grantee, by Massachusetts Electric
Company, Grantor, by deed dated December ____, 1964 duly recorded
with Essex North District Registry of Deeds and therein described
as follows:
" ... a certain tract or parcel of land situated in North
Andover, Essex County, Massachusetts, and shown on a plan
entitled: "NEW ENGLAND POWER SERVICE COMPANY, PART OF NEW ENGLAND
ELECTRIC SYSTEM, BOSTON, MASS. PLAN OF LAND IN NORTH ANDOVER,
MASSACHUSETTS TO BE CONVEYED TO MERRIMACK-ESSEX ELECTRIC COMPANY
BY GEORGE A. REA ET UX, SCALE 1"-200', DATE OCT. 24, 1957 L-
6157", duly recorded with Essex North District Deeds, and bounded
and described according to said plan as follows:
Beginning at an iron rod on the Westerly side of Salem
Turnpike at the Southeasterly corner of land now or formerly of
Florence B. Allicon;
thence running S. 46 deg. 31' 48" E. by said Salem Turnpike,
1,058.95 feet to a stake at land now or formerly of Margaret R.
Simon;
thence turning and running S. 57 deg. 46' W., 372.21 feet to
a drill hole;
thence turning and running S. 21 deg. 22' E., 164.49 feet to
a drill hole;
thence turning and running S. 23 deg. 17' 30" E., 26.94 feet
to a drill hole;
thence turning and running S. 16 deg. 06' E., 34.61 feet to
a drill hole at land now or formerly of William Sheridan -- said
last four (4) courses and distances being by said land of Simon;
thence turning and running S. 72 deg. 12' 30" W., 600.76
feet to a drill hole;
thence turning and running S. 71 deg. 29' 30" W., 313 feet
to a drill hole at Chestnut Street--said last two (2) courses and
distances being by said land of Sheridan;
thence turning and running N. 21 deg. 20' 30" W., 231.06
feet to a drill hole;
thence turning and running N. 20 deg. 15' W., 162.35 feet to
a drill hole;
<PAGE>
thence turning and running N. 23 deg. 19' W., 221.90 feet to
a drill hole;
thence turning and running N. 21 deg. 11' W., 175.21 feet to
a drill hole;
thence turning and running N. 14 deg. 53' W., 176.14 feet to
a drill hole;
thence turning and running N. 20 deg. 29' W., 82.42 feet to
a drill hole;
thence turning and running N. 13 deg. 44' W., 66.12 feet to
a drill hole;
thence turning and running N. 8 deg. 50' W., 36.38 feet to a
drill hole;
thence turning and running N. 15 deg. 27' W., 38.64 feet to
a drill hole;
thence turning and running N. 26 deg. 12' W., 58.81 feet to
a drill hole;
thence turning and running N. 25 deg. 46' W., 100.03 feet to
a drill hole;
thence turning and running N. 31 deg. 33' 26" W., 123.19
feet to an iron pipe at land now or formerly of Agnes M. Kmiec --
said last twelve (12) courses and distances being by said
Chestnut Street;
thence turning and running N. 80 deg. 10' 32" E. by said
land of Kmiec, 474.86 feet to a point at said land of Allicon;
thence turning and running S. 20 deg. 30' E., 120.80 feet to
an iron rod;
thence turning and running N. 76 deg. 35' E., 365.98 feet to
the point of beginning said last two (2) courses and distances
being by said land of Allicon.
Containing according to said plan 31.4 acres of land.
Being the same premises conveyed to Merrimack-Essex Electric
Company by George A. Rea and Charlotte P. Rea by deed dated
November 1, 1957 and recorded with said Deeds in Book 866, Page
107.
Said Merrimack-Essex Electric Company merged with
Massachusetts Electric Company as of September 5, 1962. See
Confirmation of Merger recorded with said Deeds in Book 969, Page
1.
<PAGE>
Said parcel is conveyed together with all the Grantor's
right, title and interest in and to Chestnut Street as shown on
said plan and subject to an easement for drainage purposes
conveyed to The Commonwealth of Massachusetts by George A. Rea
and Charlotte P. Rea by Deed dated December 5, 1946 and recorded
with said Deeds in Book 693, Page 170.
<PAGE>
Exhibit B-1(iii)
MASSACHUSETTS ELECTRIC COMPANY
441 STUART STREET, BOSTON 16, MASS.
=================================================================
September 6, 1966
John Hancock Mutual Life Insurance Company
200 Berkeley Street
Boston, Massachusetts
Re: Purchase, Lease and Reimbursement Agreement dated
December 30, 1964 between Massachusetts Electric
Company and John Hancock Mutual Life Insurance
Company.
--------------------------------------------------
Dear Sirs:
In accordance with our understanding, the following
amendments are hereby proposed to the Agreement between us
referred to above:
1. Paragraph 12 of said Agreement is amended so that the
figure "$3,000,000" in the second line thereof shall
read "$3,500,000".
2. Paragraph 13 of the said Agreement is amended to read
as follows:
"13. MODIFICATION OF LEASE. At the "Lease Modification
Date", which shall be December 2, 1966, or the date of
the final New Buildings Closing, if such be earlier,
Hancock and the Company will enter into the Lease
Modification with respect to the Lease, in the form of
Exhibit B hereto, dated as of such Lease Modification
Date, to include modifications of the Lease as follows:
The annual basic rental provided for the
initial term in section 2 of the Lease shall be
stated in item (x) thereof as an amount per annum
during each year of the initial term of the Lease
equal to $304,750 less $6,250 or a proportionate
part thereof for each $100,000 or part thereof by
which the Basic Cost to Lessor is less than
$3,500,000; and the blank in item (y) thereof
shall be filled in appropriately to provide for
the payment of equal monthly installments of such
rent.
<PAGE>
John Hancock Mutual Life Insurance Company
Page 2
September 9, 1966
The Lease Modification shall be entered into
on the Lease Modification Date at a "Lease
Modification Closing" which shall take place at
the office of Hancock, 200 Berkeley Street,
Boston, Massachusetts, at 11:00 A.M., Boston time.
Concurrently with the execution of the Lease
Modification, or at any time within 30 days
thereafter, Hancock will, at the request of the
Company, join with the Company in the execution
and acknowledgment of a notice of lease evidencing
the Lease as modified by the Lease Modification,
in such form as Hancock and the Company may by
such execution approve, and will take such further
action as may be necessary to permit the
recordation of such notice of lease in the
appropriate registry of deeds."
3. The form LEASE MODIFICATION AGREEMENT attached to said
Agreement as Exhibit B is amended by the addition of
the following paragraph:
"2. Section 34. Section 34 of the Lease is
modified and amended as follows:
In the second sentence of Section 34 the
figure "$159,920" shall read "$173,500",
the figure "2,464" shall read "$2,500"
and the figure '$3,000,000' shall read
'$3,500,000'."
If the foregoing amendments are satisfactory to you, please
sign the enclosed copy of this letter and return it to us
whereupon the Agreement shall be deemed to have been so amended.
Very truly yours,
MASSACHUSETTS ELECTRIC COMPANY
S/ A. E. Westwood
By: _______________________________
A. E. Westwood, Treasurer
<PAGE>
John Hancock Mutual Life Insurance Company
Page 2
September 9, 1966
Accepted:
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
S/ J. A. Worthen
By: _______________________________
Mortgage Loan Officer
September 9, 1966
<PAGE>
Exhibit B-i(iv)
MASSACHUSETTS ELECTRIC COMPANY
441 STUART STREET, BOSTON 16, MASS.
=================================================================
November 30, 1966
John Hancock Mutual Life Insurance Company
200 Berkeley Street
Boston, Massachusetts 02117
Re: Purchase, Lease and Reimbursement Agreement dated
December 30, 1964 between Massachusetts Electric
Company and John Hancock Mutual Life Insurance
Company, as amended September 9, 1966 (the "Agreement")
-------------------------------------------------------
Dear Sirs:
The following amendments to the Agreement between us
referred to above are hereby requested:
1. Paragraph 12 of said Agreement is further amended so
that the figure "$3,500,000" in the second line thereof
shall read "$3,750,000".
2. Paragraph 13 of the said Agreement is further amended
to read as follows:
"13. MODIFICATION OF LEASE. At the "Lease Modification
Date", which shall be January 1, 1967, or the date of
the final New Buildings Closing, if such be earlier,
Hancock and the Company will enter into the Lease
Modification with respect to the Lease, in the form of
Exhibit B hereto, dated as of such Lease Modification
Date, to include modifications of the Lease as follows:
The annual basic rental provided for the initial
term in section 2 of the Lease shall be stated in
item (x) thereof as an amount per annum during
each year of the initial term of the Lease equal
to "$322,775" less "$6,314" or a proportionate
part thereof for each $100,000 or part thereof by
which the Basic Cost to Lessor is less than
$3,750,000; and the blank in item (y) thereof
shall be filled in appropriately to provide for
the payment of equal monthly installments of such
rent.
<PAGE>
John Hancock Mutual Life Insurance Company
Page 2
November 30, 1966
The Lease Modification shall be entered into
on the Lease Modification Date at a 'Lease
Modification Closing' which shall take place at
the office of Hancock, 200 Berkeley Street,
Boston, Massachusetts, at 11:00 A.M., Boston time.
Concurrently with the execution of the Lease
Modification, or at any time within 30 days
thereafter, Hancock will, at the request of the
Company, join with the Company in the execution
and acknowledgment of a notice of lease evidencing
the Lease as modified by the Lease Modification,
in such form as Hancock and the Company may by
such execution approve, and will take such further
action as may be necessary to permit the
recordation of such notice of lease in the
appropriate registry of deeds."
3. Paragraph 15 of said Agreement is amended so that the
dated "December 2, 1966" in each of the four places
where it appears in said paragraph shall read "January
1, 1967" and so that the figure "$6,160" in the last
sentence of said paragraph shall read:
"2. Section 34. Section 34 of the Lease is
modified and amended as follows:
In the second sentence of Section 34 the
figure '$159,920' shall read '$180,710',
the figure '2,464' shall read "$2,525"
and the figure '$3,000,000' shall read
'$3,750,000'."
If the foregoing amendments are satisfactory to you, please
sign the enclosed copy of this letter and return it to us
whereupon the Agreement shall be deemed to have been so amended.
Very truly yours,
MASSACHUSETTS ELECTRIC COMPANY
S/ A. E. Westwood
By: _______________________________
A. E. Westwood, Treasurer
<PAGE>
John Hancock Mutual Life Insurance Company
Page 3
November 30, 1966
Accepted:
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
S/ William E. Leary
By: ____________________________________
Second Vice President
November 30, 1966
<PAGE>
Exhibit B-1(v)
1.
LEASE MODIFICATION AGREEMENT, dated as of January 1, 1967,
between John Hancock Mutual Life Insurance Company ("Lessor"), a
Massachusetts corporation having its principal office and place
of business at 200 Berkeley Street, in the City of Boston, County
of Suffolk, The Commonwealth of Massachusetts, and Massachusetts
Electric Company ("Lessee"), a Massachusetts corporation having
its principal office and place of business at 441 Stuart Street,
in the City of Boston, County of Suffolk, The Commonwealth of
Massachusetts:
The Lease, dated December 30, 1964, between Lessor and
Lessee is hereby modified and amended as follows: -
1. Section 1. Section 1 of the Lease is modified and
amended by substituting for the
paragraph therein beginning with the
words "For an initial term ..." the
following:
"For an initial term commencing as of
January 1, 1967 and expiring at midnight
on December 31, 2001, unless this Lease
shall sooner terminate as hereinafter
provided; and"
2. Section 2. Section 2 of the Lease is modified and
amended to read as follows:
"2. Basis Rent. Lessee will pay to Lessor, in such
coin or currency of the United States of America as at
the time of payment shall be legal tender for the
payment of private debts, at the City Mortgage
Department of Lessor at 200 Berkeley Street, Boston 17,
Massachusetts, or at such place or to such agent as
Lessor from time to time may designate, an annual basic
rental (over and above the other additional payments to
be made by Lessee as hereinafter provided) of (x)
$322,775 during the initial term of this Lease, payable
in installments in advance, of (y) $26,897.92 as of the
first day of the initial term of this Lease and on the
first day of each succeeding calendar month. Such
basis rental (or, if this Lease has been renewed as
provided in section 34, the basic rental therein
specified) is hereinafter sometimes referred to as the
"Basic Rent". Except as otherwise specifically
provided herein, the Basic Rent shall be due and
payable to Lessor in each month during the entire
respective terms of this Lease."
<PAGE>
3. Section 34. Section 34 of the Lease is modified and
amended to read as follows:
In the second sentence of Section 34 the figure
"159,920" shall read "$180,710", the figure "2,464"
shall read "$2,525" and the figure "$3,000,000,000"
shall read "$3,750,000".
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and their respective corporate seals to
be hereunto affixed and attested by their respective officers
thereunto duly authorized, all as of the day and year first above
written but actually on the 3rd day of January, 1967.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY,
Lessor
By: _________________________________________
Attest:
_____________________________________
Assistant Secretary
Witness:
______________________________________
______________________________________
MASSACHUSETTS ELECTRIC COMPANY,
Lessee
____________________________________
Treasurer
<PAGE>
Attest:
s/ Joseph Carbett
_____________________________________
Witness:
______________________________________
______________________________________
<PAGE>
Exhibit B-2(i)
--------------
As Executed
SUPPLEMENTED LEASE dated October 14, 1966 between JOHN
HANCOCK MUTUAL LIFE INSURANCE COMPANY ("Lessor"), a Massachusetts
corporation having its principal office and place of business at
200 Berkeley Street, in the City of Boston, County of Suffolk,
The Commonwealth of Massachusetts, and NEW ENGLAND POWER SERVICE
COMPANY ("Lessee"), a Massachusetts corporation having its
principal office and place of business at 441 Stuart Street, in
the City of Boston, County of Suffolk, The Commonwealth of
Massachusetts:
The Lease, dated June 28, 1963, between Lessor and Lessee,
as modified by two Lease Modification Agreements, dated September
1, 1964 and April 30, 1965, respectively, (hereinafter sometimes
referred to as the "Original Lease"), is hereby supplemented and
amended to read as follows:
1. Leased Property -- Term of Lease. Upon the conditions,
limitations, covenants and agreements set forth below, Lessor
hereby leases to Lessee and Lessee hereby leases from Lessor the
following property (hereinafter sometimes collectively referred
to as the "Leased Property"):
All the land (hereinafter sometimes referred to as the
"Phase I Land") described in Part I of Schedule A hereto,
TOGETHER WITH the buildings, structures, facilities,
equipment, paving, surfacing and other improvements, other than
Lessee's Equipment, now or hereafter located thereon, except such
as constitute any New Buildings as defined in the Agreement
referred to in section 5 (all of the foregoing improvements being
hereinafter sometimes referred to as the "Phase I Leased
Buildings"), and the appurtenances thereof (said land,
improvements and appurtenances being hereinafter sometimes
referred to as the "Phase I Property"); and
ALL the land (hereinafter sometimes called the "Phase II
Land") described in Part II of Schedule A, hereto,
TOGETHER WITH the buildings, structures, facilities,
equipment, paving, surfacing and other improvements, other than
Lessee's Equipment, now or hereafter located thereon and such of
the same located on the Phase I Land as constitute all or any
part of the New Buildings as defined in the Agreement referred to
in section 5 (all of the foregoing being hereinafter sometimes
referred to as the "Phase II Leased Buildings"), and the
appurtenances thereof (said land, improvements and appurtenances
being hereinafter sometimes referred to as the "Phase II
Property" and the Phase I Leased Buildings and the Phase II
Leased Buildings being hereinafter sometimes collectively
referred to as the "Leased Buildings".)
<PAGE>
SUBJECT, HOWEVER, to (a) the rights, reservations, and
restrictions of record, if any, set forth or referred to in
Schedule A hereto; (b) zoning and building restrictions and
governmental regulations now or hereafter affecting the Leased
Property; (c) such state of facts as an accurate survey would
show; and (d) rights, If any, of parties in possession other than
Lessor;
For an initial term commencing on the date hereof and
expiring at midnight on August 31, 1999, unless this Lease shall
sooner terminate as hereinafter provided; and
For a renewal term or terms as provided in section 34.
2. Basic Rent. Lessee will pay to Lessor, in such coin or
currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and
private debts, at the City Mortgage Department of Lessor at 200
Berkeley Street, Boston 17, Massachusetts, or at such place or to
such agent as Lessor from time to time may designate, annual
basic rentals (hereinafter sometimes collectively referred to as
"Basic Rent"), over and above the other additional payments to be
made by Lessee as herein provided, of:
A. Phase I Basic Rent. (a) $568,825 during the initial term
of this Lease, payable in installments in advance of (b)
$47,402.09 on the first day of the first full calendar month
included in the initial term of this Lease and on the first day
of each succeeding calendar month. Such basic rental (or, if this
Lease has been renewed as provided in section 34, the Phase I
Basic Rent therein specified) is hereinafter sometimes referred
to as the "Phase I Basic Rent."
B. Phase II Basic Rent. (a) $4,200 during the period from
the date of this Lease to the date of the Lease Modification
Closing provided for in the Agreement referred to in section 5
(which period is herein sometimes referred to as the "preliminary
term" of this Lease), payable in installments in advance as
follows: (b) $210 on the date hereof and (c) $350 on the first
day of each succeeding calendar month; and (x) $ during the
remaining portion of the initial term after the preliminary term
of this Lease, payable in installments in advance of (y) $
on the first day of such remaining portion of such initial term
after the preliminary term of this Lease and on the first day of
each succeeding calendar month [the amounts in (x) and (y) to be
inserted by modification of this Lease pursuant to the Agreement
referred to in section 5]. Such basic rental (or, if this Lease
has been renewed as provided in section 34, the Phase II Basic
Rent therein specified) is hereinafter sometimes referred to as
the "Phase II Basic Rent."
<PAGE>
Except as otherwise specifically provided herein, the Phase
I and Phase II Basic Rents shall each be due and payable to
Lessor in each month during the entire respective terms of this
Lease. All rentals, including Phase I Basic Rent and all
additional rentals, required to be paid in respect of this Lease
in connection with the Phase I Property are herein sometimes
referred to as "Phase I Rentals" and all rentals, including Phase
II Basic Rent and all additional rentals, required to be paid in
respect of this Lease in connection with the Phase II Property
are herein sometimes referred to as "Phase II Rentals." During
the preliminary term of this Lease payments of all Phase II
Rentals may be made as provided in the Agreement referred to in
section 5.
3. Additional Rent; Credit Against Rent. A. Lessee will also pay
Lessor as additional yearly rental during the preliminary term of
this Lease the amount, if any, by which (a) the real estate taxes
payable in respect of the Phase I Property for any full calendar
year shall exceed $150,000; (b) such taxes for any portion of a
full calendar year during the term hereof shall exceed a
proportionate amount of $150,000; (c) the cost for any full year
of insurance of the types required by section 20 hereof to be
carried by Lessor in respect of the Phase I Property shall exceed
$12,000; and (d ) the cost for any portion of a full year of such
insurance shall exceed a proportionate amount of $12,000. Such
additional rental shall be paid at least fifteen days before the
respective items of taxes and/or insurance included therein are
due and payable. An amount equal to the amount, if any, by which
(i) such taxes are less than $150,000 and/or (ii) the cost of
such insurance is less than $12,000, for any full year or
proportion for any portion of a full year, shall be credited
against the first rental or rentals payable under this Lease
after receipt by Lessor of the respective bills for such items of
taxes and/or insurance.
B. Lessee will also pay Lessor as additional yearly rentals
during the remainder of the initial term after the preliminary
term of this Lease and during each renewal term of this Lease the
sum of the amounts, if any, by which (a) the real estate taxes
payable in respect of the Leased Property for any full calendar
year shall exceed $275,000; (b) such taxes for any portion of a
full calendar year shall exceed a proportionate amount of
$275,000; (c) the cost for any full calendar year of insurance of
the types required by section 20 hereof to be carried by Lessor
in respect of the Leased Property shall exceed $17,000; and (d)
the cost for any portion of a full calendar year of such
insurance shall exceed a proportionate amount of $17,000. Such
additional rent shall be paid at least fifteen days before the
respective items of taxes and/or insurance included therein are
due and payable. An amount equal to the amount, if any, by which
(i) such taxes are less than $275,000 and/or (ii) the cost of
such insurance is less than $17,000, for any such full calendar
<PAGE>
year or proportionately for any such portion of a full calendar
year, shall be credited against the first rental or rentals
payable under this Lease after receipt by Lessor of the
respective bills for such items of taxes and/or insurance.
C. Lessee shall also pay Lessor as additional rent amounts equal
to all betterment assessments imposed on the Phase I Property
during the initial term and each renewal term hereof and on the
Phase II Property during the remainder of the initial term after
the preliminary term hereof and each renewal term hereof; such
payments, if a betterment assessment is payable in installments,
to be paid Lessor as the installments become due or, if a
betterment assessment is payable in a single payment, to be paid
Lessor in equal annual installments, the first installment to be
paid on the due date of the betterment assessment and one
installment on the anniversary date in each of the next nine
succeeding years of the term of this Lease, or each succeeding
year of the remaining term if less than nine years. Lessee will
also, as additional rent, pay all Impositions (such term, and
certain other terms, are defined in section 51), costs, expenses,
liabilities, obligations and other payments which Lessee in any
of the provisions of this Lease assumes or agrees to pay (and
reimburse Lessor for any payments thereof made by Lessor), and,
in the event of any failure by Lessee to pay any of the same,
Lessor shall have all the rights and remedies provided for in
this Lease or by law in the case of nonpayment of the Basic Rent.
Lessee will also pay to Lessor, as additional rent, all amounts
of additional rent and other payments (other than Basic Rent) due
to Lessor from Lessee, and Lessor will also pay to Lessee or give
Lessee credits against rent, as appropriate, all amounts so due
to Lessee from Lessor, under the Original Lease in respect of
items, liability for the payment of which or credit in respect of
which had accrued at the date of this Supplemented Lease and
payment of or credit in respect of which items is not otherwise
required by this Supplemented Lease. Lessee will also pay Lessor,
on demand, as additional rent, interest at the rate of 6 1/2% per
annum on all overdue installments of Basic Rent. The provisions
of this section are subject to section 17 relating to contests.
4. No Abatement, etc. Lessee will pay the Basic Rent to Lessor
and the additional rent to the appropriate payees thereof without
notice or demand by Lessor, except as otherwise specifically
required hereby, and, except as otherwise specifically required
hereby, without abatement, deduction, counterclaim, set-off or
defense, based on any claim against Lessor; Lessee shall not be
entitled to quit, terminate or surrender this Lease, and shall
not be relieved from its obligations to pay the full Basic Rent
and additional rent or from any of its other obligations under
this Lease, by reason of (a) any prevention or curtailment of or
interference with any use of the Leased Property or any part
thereof for any purpose by any Legal Requirement (except as
provided herein in respect of a Taking), or (b) any change of
<PAGE>
grade of any abutting street, or (c) any damage to or destruction
of or Taking of the Leased Buildings or successful assertion of
title paramount in the Leased Property or any part thereof
(except as otherwise specifically required hereby).
5. Construction of Leased Buildings. Use of Leased Property.
Lessee will commence and proceed diligently with the construction
and completion of the buildings and improvements on the land
included in the Leased Property as provide in the agreement
between Lessor and Lessee dated September 23, 1966 relating
thereto (herein sometimes called the "Agreement"), a copy of
which is on file at the principal office of Lessor, and will
otherwise duly and punctually perform its obligations thereunder.
Lessee will use or permit the use of the Leased Property in
connection with Lessee's business of supplying of services and
goods generally to New England Electric System, a Massachusetts
voluntary association, its successors and assigns, and its and
their subsidiaries, and, except incidentally and except for use
by Lessee's affiliates and sublessees permitted hereunder in
connection with their respective businesses, will not use or
permit the use of the same for any other purpose without Lessor's
prior written consent. Lessee will not permit any occupancy or
use of any part of the Leased Property contrary to any Legal
Requirement or Insurance Requirement or permit any nuisance in,
at or on the Leased Property or any abandonment or waste of the
Leased Property or any part thereof.
6. Lessee's Equipment. Ail Lessee's Equipment shall be the
property of Lessee, provided that (a) upon the occurrence of any
Event of Default, Lessor shall, to the extent permitted by law,
have (in addition to all other rights) a lien on Lessee's
interest in all Lessee's Equipment (to the extent such a lien may
be created without violation of any other agreement of Lessee
with respect to such Lessee's Equipment) on the Leased Property
as security for all rent, including additional rent, due and
payable under this Lease, and (b) any Lessee's Equipment not
removed by Lessee at its expense within 30 days after any
termination of this Lease shall be considered abandoned by Lessee
and may be appropriated, sold, destroyed or otherwise disposed of
by Lessor without notice to Lessee and without obligation to
account therefor, and Lessee will pay Lessor upon demand all net
costs and expenses incurred by Lessor in removing, storing or
disposing of the same. Lessee will immediately repair at its
expense all damage to the Leased Property caused by any removal
of Lessee's Equipment therefrom, whether effected by Lessee or
Lessor. Lessor shall not be responsible for any loss of or damage
to Lessee's Equipment.
7. Alterations and Additions. Lessee may make, at its expense,
reasonable alterations of and additions to the Leased Buildings
and may construct additional buildings and other improvements on
the Leased Property, provided that in all cases (including
<PAGE>
alterations or additions involved in any repair pursuant to
sections 6 or 12) the alteration or addition (a ) does not change
the general character of the Leased Buildings or adversely affect
their fair market value, (b) is effected with due diligence, in a
good and workmanlike manner and in compliance with all Legal
Requirements and Insurance Requirements, (c) is promptly and
fully paid for by Lessee, and (d) is made, in case the estimated
cost exceeds $100,000, either (x) under the supervision of an
architect or engineer satisfactory to Lessor and in substantial
accordance with detailed plans and specifications and cost
estimates approved by Lessor, and after Lessee shall have
furnished to Lessor, if requested, a performance bond, or other
security, satisfactory to Lessor or (y) pursuant to a proposal
satisfactory to Lessor as evidenced by it in writing.
8. Improvements, etc., on Property of Lessor. All buildings,
structures, improvements, fixtures machinery, apparatus,
equipment, changes, alterations, repair, replacements, renewals,
additions. betterments. restoration and rebuilding, erected, made
or installed by Lessee in or upon or used for the operation,
maintenance or protection of the Leased Property, as such, (other
than Lessee's Equipment) shall immediately be and become the
property of Lessor and shall thereafter constitute part of the
leased Property.
9. Impositions. Subject to section 17 relating to contests,
Lessee will pay all Impositions before any interest, penalty,
fine or cost may be added for non-payment, provided that (a) if,
by law, any Imposition may at the option of the payor be paid in
installments, Lessee may exercise such option, and, in such
event. Lessee shall give Lessor prompt written notice of such
exercise and shall pay all such installments (and interest ii
any) becoming due during the term of this Lease as the same
respectively become due and before any further interest or any
penalty, fine or cost may be added thereto; and (b) any
Imposition relating to a period, a part of which is included
within the term of this Lease and a part of which extends beyond
such term, shall, if an Event of Default shall not then exist
under this Lease, be apportioned between Lessor and Lessee as of
the expiration of such term. Lessee will furnish to Lessor and to
each holder of any mortgage on the Leased Property, for
inspection, within 30 days after the date when any Imposition
(unless being contested in conformity with section 17) would
become delinquent, official receipts, or other proof satisfactory
to Lessor or such mortgagee, as the case may be, evidencing the
payment of such Imposition Lessor will pay in full when due and
payable all real estate taxes and betterment assessments in
respect of the Leased Property, except such as are includible in
additional rent and are not paid to Lessor by Lessee when such
additional rent is due, provided, however, that Lessor may
contest, by appropriate legal proceedings the amount or validity
or application, in whole or in part, of any tax or betterment
<PAGE>
assessment, provided that (a) such proceedings shall operate to
suspend the collection thereof from the Leased Property, (b)
neither the Leased Property nor any part thereof would be in
substantial danger of being forfeited or lost, and (c) Lessor
shall have furnished such security, if any, as may be required in
the proceedings.
10. Compliance with Legal and Insurance Requirements, etc.
Subject to section 17 relating to contests, Lessee at its expense
will promptly comply with all Legal Requirements, and all
reasonable Insurance Requirements of which Lessee shall have been
given written notice, unless variance therefrom is consented to
in writing by Lessor, whether or not compliance therewith shall
require structural changes in the Leased Buildings, will procure
and maintain all permits, licenses and other authorizations
required for any use of the Leased Property or any part thereof
then being made, and for the lawful and proper installation,
operation and maintenance of all equipment and appliances
necessary or appropriate for the operation and maintenance of the
Leased Property, and will comply with any former instruments of
record affecting the Leased Property or any part thereof at the
time in force.
11. Condition of Leased Property. Lessee is and will be fully
familiar with the physical condition of, the Leased Property from
time to time. Lessor has made and will make no representations as
to the condition of the Leased Property or the fitness or
availability of the Leased Property for any particular use, and
Lessor shall not be liable for any latent or patent defect
therein, as it may exist from time to time.
12. Repairs, etc. Subject to reasonable wear and tear, Lessee
will maintain the Leased Buildings as first class property of the
type of which they consist, will keep the Leased Property and the
sidewalks, curbs, vaults and vault space, if any, adjoining the
Leased Property in good and clean order and condition, and will
make all necessary or appropriate repairs, replacements, renewals
and betterments thereof, structural and non-structural, ordinary
and extraordinary, and foreseen and unforeseen, all at the
expense of the Lessee, except that there shall be credited at
Lessee's option against the rent hereunder in respect of amounts
actually expended by Lessee for exterior repairs of the Leased
Buildings the following amounts: (i) in each year or portion
thereof during the preliminary term of this Lease, an amount in
respect of such actual expenditures for exterior repairs of the
Phase I Leased Buildings not exceeding $10,000 or a part thereof
proportionate to any such portion of a year, and (ii) in each
year or portion thereof during the remaining portion of the
initial term after the preliminary term of this Lease and any
renewal term, an amount in respect of such actual expenditures
for exterior repairs of the Leased Buildings not exceeding
$20,000 or a part thereof proportionate to any such portion of a
<PAGE>
year. To the extent any such credit is not so taken in any such
period it may be accumulated and so taken, together with any
credits accumulated under section 12 of the Original Lease, in
any subsequent year or years at any time prior to the termination
or other expiration of this Lease. Upon any such termination or
expiration Lessee shall be compensated by Lessor, by credit
against rent due hereunder or otherwise, for the full aggregate
amount of such accumulated credits (including, without
limitation, credits accumulated under section 12 of the Original
Lease) to the date of such termination or expiration, whether or
not amounts in respect of such credits have actually been
expended by Lessee. Lessee will, at its expense, and will hold
the Lessor harmless from such expense, take all action necessary
to insure that the Leased Property will at all times be provided
with adequate facilities for drainage of surface water and will
promptly comply with all Legal Requirements in such connection.
13. Shoring, etc. Lessee at its expense will do or cause others
to do all shoring of foundations and walls of the Leased
Buildings or of the ground adjacent thereafter, and every other
act, necessary or appropriate for the safety and preservation
thereof by reason of or in connection with any excavation or
other building operation upon the Leased Property or any
adjoining property, whether or not the owner of the Leased
Property shall, by any Legal Requirement, be required to take
such action or be liable for failure to do so.
14. Replacement of Building Equipment. Lessee may, from time to
time, so long as it shall not be in default under this Lease,
remove and dispose of any equipment in the Leased Buildings,
provided that (except as to Lessee's Equipment) Lessee shall
promptly replace such equipment with other equipment at least
equal in value and general utility to that removed.
15. Discharge of Liens, etc. Subject to section 17 relating to
contests, Lessee (unless such be created by Lessor or those
claiming through Lessor and not through Lessee) will not create
or permit to be created or to remain, and will discharge, any
lien, any rights in derogation of Lessor's title to the Leased
Property, any encumbrance or charge on account of any Imposition
or any mechanic's, laborer's, materialman's or vendor's lien
(including any such lien arising out of or due to labor performed
or materials furnished prior to the date of this Lease) or any
mortgage, chattel mortgage, conditional sale or title retention
agreement, or otherwise, upon the Leased Property or any part
thereof, or upon Lessee's leasehold interest therein (other than
general mortgages of Lessee or any of its affiliates securing
publicly held securities of Lessee or its affiliates), provided
that the existence of any mechanic's, laborer's, materialman's or
vendor's lien or right thereto shall not constitute a violation
of this section if payment of the sum involved is not yet due
under the terms of the contract in question. Subject to said
<PAGE>
section 17, Lessee will not enter into any contract providing for
the postponement of any such payment for more than 30 days after
completion of the work.
16. No Claims against Lessor. Except as otherwise specifically
contemplated by sections 21 and 25, nothing contained in this
Lease shall constitute the consent or request of Lessor, express
or implied, for the performance of any labor or the furnishing of
any materials or other property in respect of the Leased Property
or any part thereof, nor as giving Lessee any authority to
contract for or permit the rendering of any services or the
furnishing of any materials or other property, so as to permit
the making of any claim against Lessor.
17. Contests. After prior written notice to Lessor and to each
holder known to Lessee, or of record, of any mortgage on the
Leased Property, Lessee may contest, by appropriate legal
proceedings conducted in good faith and with due diligence, the
amount or validity or application, in whole or in part, of any
taxes or assessments includable in additional rent or any
Imposition or other Legal Requirement or any lien, encumbrance or
charge referred to in section 15, provided that (a) in the case
of any such unpaid tax, assessment or Imposition, such
proceedings shall operate to suspend the collection thereof from
Lessor or the Leased Property, (b) in the case of a Legal
Requirement, neither the Lessor nor any mortgagee of the Leased
Property would be in danger of civil or criminal liability for
failure to comply therewith, (c) neither the Leased Property nor
any part thereof would, in the judgment of Lessor or any such
mortgagee, be in substantial danger of being forfeited or lost,
and (d) Lessee shall have furnished such security, if any, as may
be required in the proceedings or reasonably requested by Lessor
or such mortgagee.
18. Utility Services and Parking. Lessee will pay or cause to be
paid all charges for all public or private utility services and
all sprinkler-system and protective services at any time rendered
to or in connection with the Leased Property or any part thereof,
will comply with all contracts relating to any such services, and
will do all other things required for the maintenance and
continuance of all such services. If this Lease shall terminate,
either at the end of any term thereof or otherwise, and Lessee
shall not have purchased the Leased Property as provided in
section 52, Lessee shall proceed diligently to provide Lessor, at
the sole expense of Lessee, with paved parking facilities to the
extent necessary so that Lessor will then have the ownership of
or the perpetual right to use paved parking facilities for at
least 700 automobiles reasonably convenient to the Leased
Buildings; such facilities to be substantially equivalent in
quality with the parking facilities called for by the Plans and
Specifications provided for in the Agreement referred to in
section 5. Such provision may be made either by the construction
<PAGE>
of such parking facilities on the Leased Property in a location
selected by Lessor and reasonably adaptable thereto and/or by the
granting to or causing to be granted to the Lessor of perpetual
easements to use and maintain such facilities; provided that if
such termination occurs pursuant to section 23 or 24 and the
entire gross interior floor area of the Leased Buildings (as
computed pursuant to said sections 23 and 24) is not involved in
the damage, destruction or Taking referred to in section 23 or
24, Lessee will so provide such parking facilities for the number
of automobiles which bears the same proportion to 700 as such
gross interior floor area (so computed) not involved in such
damage, destruction or Taking, bears to the total gross interior
floor area of the Leased Buildings (so computed).
19. Lessee's Insurance. Lessee at its expense will maintain or
cause to be maintained with insurers approved by Lessor (a)
public liability insurance and property damage liability
insurance against any accident, injury or damage to any person or
property occurring on or about the Leased Property or any part
thereof in amounts and coverage approved in writing by Lessor,
and (b) appropriate workmen's compensation insurance in respect
of an, work on or about the Leased Property. In each case such
policies of insurance required by this section may be under a
blanket policy approved in writing by Lessor and may have
"deductible" clauses in amounts not exceeding $10,000 in respect
of any one event of casualty or such greater amount as Lessor may
approve in writing.
20. Lessor's Insurance. Lessor, at its expense (except as
otherwise provided herein and in the Agreement), will maintain
throughout the term of this Lease insurance with respect to the
Leased Buildings against loss or damage by fire, lightning,
windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles, smoke, boiler explosion, war risks
(when and to the extent insurance against the same is obtainable
from the United States Government or any agency thereof), and
other risks customarily insured against by persons in businesses
similar to that of Lessee, as determined in good faith by Lessor,
all in amounts not less than the then full insurable value
(actual replacement value less actual physical depreciation,
exclusive of cost of excavations, foundations and footings below
the underside of the lowest basement floor if excluded by the
policy) of the Leased Buildings as determined from time to time
at Lessee's expense when requested by Lessee but not more
frequently than once in any three years. If John Hancock Mutual
Life Insurance Company is not the Lessor hereunder, Lessor will
furnish Lessee not more often than annually with reasonable
evidence of such insurance at the written request of Lessee. John
Hancock Mutual Life Insurance Company may in any case be a self-
insurer or co-insurer against any risks, and in such event the
cost to John Hancock Mutual Life Insurance Company of such self-
insurance shall be deemed to be the lowest cost at which such
<PAGE>
insurance could be obtained by John Hancock Mutual Life Insurance
Company from a responsible insurer.
21. Restoration if Damage or Destruction. In case there shall
occur any damage to or destruction of any of the Leased Buildings
or any part thereof by hazards to be insured against by Lessor,
Lessee will promptly give written notice thereof to Lessor and,
subject to the provisions of section 23, Lessor at its expense
will promptly commence and complete with due diligence the
restoration, repair, replacement or rebuilding (hereinafter
collectively referred to as "Restoration") of the Leased
Buildings to as nearly as possible their value, condition and
character immediately prior to such damage or destruction, with
such alterations or additions, if any, as may be mutually agreed
upon by Lessor and Lessee.
22. Abatement of Rent. In case there shall occur any damage to or
destruction of any of the Leased Buildings or any part thereof by
hazards to be insured against by Lessor, and such damage or
destruction shall be so extensive as to render the whole or any
part thereof unsuitable for Occupancy by Lessee for the purposes
for which Lessee occupied the same immediately prior to such
occurrence, a just proportion of the Basic Rent, according to the
nature and extent of the injury to the Leased Buildings, shall be
suspended or abated until the Leased Buildings shall have been
repaired or restored by Lessor at its expense to substantially
the same condition they were in immediately prior to such
casualty.
23. Right to Terminate in Case of Certain Damage, etc. In case
there shall occur any damage to or destruction of the Leased
Buildings, (a) if by such damage or destruction 6070 or more of
the gross interior floor area of the building or buildings then
constituting the Leased Buildings has been rendered unsuitable
for occupancy by Lessee for the purposes for which Lessee
occupied the same immediately prior to such occurrence, then
either Lessor or Lessee may terminate this Lease by 30 days'
prior written notice to the other given within 60 days after such
damage or destruction, or (b) if 100% of such floor area has been
so rendered unsuitable, then this Lease shall terminate ipso
facto. Lessor shall not have any claim against Lessee for any
deficiency in the proceeds of insurance recovered on account of
such damage or destruction.
24. Termination as Result of Taking or Title Paramount. In the
event of a Taking of or the successful assertion of title
paramount in the entire Leased Property or the entire Leased
Buildings, this Lease shall terminate ipso facto, and in the
event of a Taking or the successful assertion of title paramount
involving 50% or more of the gross interior floor area of the
building then constituting the Leased Buildings, then either
Lessor or Lessee may terminate this Lease as of the date of such
<PAGE>
Taking or successful assertion by 30 days' prior written notice
to the other given within 60 days after such Taking or successful
assertion. Lessor shall not have any claim against Lessee for any
deficiency in the proceeds of awards or insurance recovered on
account of any such Taking or successful assertion, as the case
may be.
25. Taking or Title Paramount not Resulting in Termination. In
the event of a Taking of or the successful assertion of title
paramount in part of the Leased Property or of a temporary
easement or interest therein, not resulting in termination of
this Lease, then this Lease and the term hereof shall continue in
full force and effect and a just proportion of the Basic Rent
according to the nature and extent of the part so taken or
affected shall be suspended or abated until the Leased Property
or what remains thereof not so affected shall be put in proper
condition by Lessor for occupation by Lessee for the purposes for
which Lessee occupied the same immediately prior to such Taking
or successful assertion. and thereafter the Basic Rent shall be
abated for the balance of the term of this Lease according to the
nature and extent of the part so taken or affected. Lessor will,
in any such event, promptly undertake, at its expense, to put in
proper condition the the Leased Property or what remains thereof
for occupation by Lessee for the purposes for which Lessee
occupied the same immediately prior to such Taking or successful
assertion.
26. Damages for Taking. Lessor reserves to itself, and Lessee
assigns to Lessor, all rights to damages accruing on account of
any Taking or by reason of any act of any public or quasi-public
authority (other than changes of grade) for which damages are
payable. Lessee agrees to execute such instruments of assignment
as may be reasonably required by Lessor and to join in any
petition for the recovery of such damages if requested by Lessor,
and to turn over to Lessor any damages that may be recovered in
any such proceeding. It is agreed and understood, however, that
Lessor does not reserve to itself, and Lessee does not assign to
Lessor, any portion of the award allocable to Lessee's Equipment
or specifically paid on account of consequential damages to
Lessee for the disturbance of its occupancy of the Leased
Property under laws in effect at the time of such Taking.
27. Change of Grade. In case the grade of any street abutting on
the Leased Property shall be changed, Lessee, at its expense,
will promptly effect whatever Restoration is necessary to restore
the Leased Property tn substantially its former condition and
utility and, in case the cost of such Restoration shall exceed
Lessee's award and any interest paid in respect thereof, Lessor's
award shall be applied (after deducting all costs, fees and
expenses of Lessor not paid by Lessee incident to the collection
thereof), if Lessee is not in default under this Lease. to
reimburse Lessee for the excess upon receipt by Lessor of
<PAGE>
evidence reasonably satisfactory to Lessor of the cost and
completion of such Restoration.
28. Award if Lessee in Default. Anything in this Lease to the
contrary notwithstanding, if at the time of any Taking or any
change of grade, or at any time thereafter, Lessee shall be in
default under this Lease and such default shall continue, Lessor
shall be empowered, in the name of Lessee or otherwise, to file
and prosecute Lessee's claim, if any, for an award on account of
the Taking or change of grade and to collect such award and apply
the same. after deducting all costs, fees and expenses of Lessor
incident to the collection thereof, to the curing of such default
and any other then existing defaults under this Lease; any
balance remaining after such application and after Lessor shall
have received therefrom the amount, if any, required by the
provisions of section 26 (if applicable) to be received by Lessor
on account of rights to damages assignable to Lessor by Lessee,
shall, unless the term of this Lease shall have expired, be paid
to Lessee.
29. Indemnification of Lessor Lessee will protect, indemnify and
save harmless Lessor from and against all liabilities,
obligations, damages, penalties, claims, causes of action, costs,
charges and expenses, including attorneys' fees and expenses,
which may be imposed upon or incurred by or asserted against
Lessor by reason of (a) any accident, injury or damage to any
person or property occurring on or about the Leased Property or
any part thereof, (b) any use, non-use or condition of the Leased
Property or any part thereof, (c) any claim for the performance
of labor or the furnishing of materials or other property in
respect of the Leased Property or any part thereof except to the
extent Lessor is obligated in these respects pursuant to sections
21 and 25, and (d ) any failure on the part of Lessee to perform
or comply with any of the provisions of this Lease. In case any
action or proceeding is brought against Lessor by reason of any
such occurrence, Lessee upon Lessor's request will at Lessee's
expense resist and defend such action or proceeding, or cause the
same to be resisted and defended, either by counsel designated by
Lessee and approved by Lessor, or, where such occurrence is
covered by liability insurance, by counsel designated by the
insurer.
30. Restriction against Mortgages, Assignments, Subleases, etc.
Except to an affiliate and to others for stores for the
convenience of the occupants of the Leased Property, and except
to such others as Lessor may approve in writing, Lessee's
interest in this Lease may not be mortgaged, encumbered,
assigned, subleased or otherwise transferred, in whole or in
part, by Lessee or by operation of law, merger, consolidation or
otherwise and, except as aforesaid, no part of the Leased
Property may be the subject of any license or privilege.
Furthermore, in the case of any such assignment or transfer of
<PAGE>
any interest in this Lease, the assignee or transferee shall
execute and deliver to Lessor an instrument, satisfactory in
substance and form to Lessor, whereby such assignee or transferee
assumes all, or a proportionate part, of the obligations of
Lessee under this Lease. From and after any such assignment or
transfer the obligations of each such assignee and transferee and
of the original Lessee named as such in this Lease to fulfill all
of the obligations of Lessee under this Lease shall be joint and
several, and the obligations of such original Lessee under this
Lease shall continue in full force and effect as the obligations
of a principal and not as the obligations of a guarantor or
surety.
31. Assignment of Subrents, etc Lessee hereby irrevocably
assignee to Lessor all rents due or to become due from any
assignee or sublessee of this Lease or any tenant or occupant of
the Leased Property or any part thereof, together with the right
to collect and receive the same, provided that so long as Lessee
is not in default under this Lease, Lessee shall have the right
to collect and receive such rents for its own uses and purposes.
Upon any default by Lessee under this Lease, Lessor shall, until
such default shall have been cured, have absolute title to such
rents and the absolute right to collect the same, provided that
unless Lessor gives written notice to any assignee or sublessee
or any tenant or occupant of the Leased Property permitted
hereunder that Lessee is in default under this Lease no such
assignee, sublessee, tenant or occupant shall be held liable to
Lessor for making payment of such rents to Lessee. Lessor shall
apply to the Basic Rent or additional rent due under this Lease
the net amount (after deducting all costs and expenses of
collection) of any rents so collected and received by it.
32. Performance on Behalf of Other Party. If either Lessee or
Lessor at any time shall fail to make any payment or perform any
act required by this Lease to be made or performed by it, the
other party, without notice to or demand upon the party so
failing and without waiving or releasing the party so failing
from any obligation or Event of Default under this Lease, may
(but shall be under no obligation to) at any time thereafter make
such payment or perform such act for the account and at the
expense of the party so failing. All sums so paid and all costs
and expenses (including, without limitation, attorneys' fees and
expenses) so incurred, together with interest thereon at the rate
of 6 1/2% per annum from the date of payment or incurring, shall
be paid by the party so failing to the other party on demand,
and, if Lessee is the party so failing, shall constitute
additional rent payable by Lessee under this Lease.
33. Entry by Lessor. Lessor and its authorized representatives
shall have the right to enter the Leased Property at all
reasonable times (a) for the purpose of inspecting the same or
for the purpose of doing any work under sections 21, 25 or 32,
<PAGE>
and may take all such action thereon as may be necessary or
appropriate for any such purpose (nothing contained in this Lease
or otherwise shall create or imply any duty upon the part of
Lessor to make any such inspection, or do any such work except as
provided in sections 21 and 25), and (b) for the purpose of
showing the Leased Property to prospective purchasers or
mortgagees and, at any time within 12 months prior to the
expiration of the then current term of this Lease (unless Lessee
theretofore shall have given Lessor written notice of its
election to purchase the Leased Property or unless Lessee, if
entitled to renew this Lease for a further term, theretofore
shall have given Lessor written notice of its election to renew),
for the purpose of showing the same to prospective tenants, and
within such period to attach to the Leased Buildings
advertisements for sale or letting. No such entry shall
constitute an eviction of Lessee.
34. Renewal Terms. The term of this Lease may, at the option of
Lessee (evidenced by written notice given to Lessor at least 12
months prior to the expiration of the initial term or then
current renewal term), be extended for five years (such period
being herein sometimes referred to as a "renewal term"), but such
right of extension may not be exercised for more than three such
renewal terms, provide, in each case, that the Lessee shall not
be in default under this Lease and that this Lease shall not have
been theretofore terminated for any reason and provided further,
that at the time of giving, any notice to renew as aforesaid, (1)
the Guaranty of this Lease of even date herewith executed by New
England Electric System ("NEES") shall be fully in effect on the
part of NEES or a duly organized and validly existing successor
entity to NEES which successor shall, (a) at the time of becoming
such successor, have acquired all of NEES' right, title and
interest in, to and under substantially all of the business and
assets of NEES of every kind and nature whatsoever (whether or
not subject to the then liabilities of NEES) owned or purported
to be owned by NEES at such time and (b) to the satisfaction of
Lessor, have assumed all of the obligations of NEES under said
Guaranty; and (2) either NEES or its said successor, as the case
may be, shall then have a legal existence pursuant to its
charter, declaration of trust or other governing instrument under
or pursuant to which it is then organized and then exists
extending to or beyond the end of the renewal term in respect of
which such notice of election is given. Each renewal term shall
be upon the same terms, covenants and conditions as are provided
in this Lease in respect of the initial term, except that Lessee
shall have no option to extend the term of this Lease beyond the
last such renewal term and except that the Phase I Basic Rent for
each such renewal term shall be an amount per annum equal to
$330,730 and the Phase II Basic Rent for each such renewal term
shall be an amount per annum equal to $292,900 less $2,780 or a
proportionate part thereof for each $100,000 or part thereof by
which the Basic Cost to Lessor is less than $5,500,000. The Phase
<PAGE>
I and Phase II Basic Rents for each renewal term shall each be
payable in equal monthly installments in advance on the first day
of each calendar month. A new lease need not be executed upon the
exercise of any of these options, and this Lease will remain in
full force and effect, changed only as to matters specified in
this section.
35. Events of Default. If any one or more of the following events
(herein sometimes called an "Event of Default" or "Events of
Default") shall happen:
(a) if default shall be made in the due and punctual payment
of any Basic Rent, when and as the same shall become due and
payable; or
(b) if default shall be made in the due and punctual payment
of any additional rent payable under this Lease, when and as the
same shall become due and payable, and such default shall
continue for a period of 10 days; or
(c) if default shall be made by Lessee in the performance of
or compliance with any of the covenants, agreements, terms or
conditions contained in this Lease other than those referred to
in the forgoing subdivisions (a) and (b), and such default shall
continue for a period of 30 days after written notice thereof
from Lessor to Lessee; or
(d) if Lessee shall file a voluntary petition in bankruptcy
or shall be adjudicated a bankrupt or insolvent, or shall file
any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief for itself under any
present or future federal, state or other statute, law or
regulation, or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Lessee or
of all or any substantial part of its properties or of the Leased
Property. or shall make any general assignment for the benefits
of creditors' or shall admit in writing its inability to pay its
debts generally as they become due; or
(e) if a petition shall be filed against Lessee seeking any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or
future federal, state or other statute, law or regulation, and
shall remain undismissed or unstayed for an aggregate of 90 days
(whether or not consecutive), or if any trustee, receiver or
liquidator of Lessee or of all or any substantial part of its
properties or of the Leased Property shall be appointed without
the consent or acquiescence of Lessee and such appointment shall
remain unvacated or unstayed for an aggregate of 90 days (whether
or not consecutive);
<PAGE>
then and in any such event Lessor at any time thereafter may give
written notice to Lessee specifying the occurrence giving rise to
such Event of Default or Events of Default and stating that this
Lease and the term hereby demised shall expire and terminate on
the date specified in such notice, which shall be at least 10
days after the giving of such notice, and upon the date specified
in such notice, subject to the provisions of section 37 relating
to the survival of Lessee's obligations, the term of this Lease
and the estate and interests hereby demised shall expire and
terminate by limitation and all rights of the Lessee under this
Lease shall cease unless before such date (i) all arrears of
Basic Rent and additional rent and all other amounts payable by
Lessee under this Lease, together in each case with interest
thereon at the rate of 63470 per annum from the time when the
same became due and payable, and all costs and expenses
(including, without limitation, attorneys' fees and expenses)
incurred by or on behalf of Lessor in the premises, shall have
been fully paid by Lessee, and (ii) all other defaults at the
time existing under this Lease shall have been fully cured and
made good or secured to the satisfaction of Lessor. Lessee will
pay, as additional rent hereunder, all costs and expenses
incurred by or on behalf of Lessor, including, without
limitation, attorneys' fees and expenses, occasioned by any
default by Lessee under this Lease.
36. Repossession, Re-letting, etc., by Lessor. At any time after
any expiration of the term of this Lease as provided in section
35, Lessor, without further notice and with no liability to
Lessee, may repossess the Leased Property, by force, summary
proceedings, ejectment or otherwise, and may remove Lessee and
all other persons and any and all property from the Leased
Property. After any such expiration, Lessor shall use reasonable
efforts and diligence (a) to re-let the Leased property for such
term or terms and on such terms and conditions as are practicable
in the light of all the circumstances then existing and (b) to
collect and receive the rents therefrom, all as determined in
good faith by Lessor, and Lessor shall not otherwise be liable
for any failure to collect any rent due upon any such re-letting.
37. Survival of Lessee's Obligations; Damages. No expiration of
the term of this Lease or repossession of the Leased Property, as
provided in sections 35 and 36, shall relieve Lessee of its
liability and obligations under this Lease, all of which shall
survive any such expiration or repossession.
(A) In the event of any such expiration, Lessee shall pay to
Lessor the Basic Rent and all additional rent and other charges
required to be paid by Lessee up to the time of such expiration,
and thereafter Lessee, until the end of what would have been the
term of this Lease in the absence of such expiration and whether
or not the Leased Property or any part thereof shall have been
re-let, shall be liable to Lessor for, and shall pay to Lessor,
as and for liquidated agreed current damages for Lessee's
default:
<PAGE>
(a) the Basic Rent (less an amount equal to $10,000 per
annum if such Basic Rent would have been due during the
preliminary term of this Lease and less an amount equal to
$20,000 per annum if such Basic Rent would have been due
during the remaining portion of the initial term after the
preliminary term of this Lease or any renewal term hereof)
and all additional rent, less any credits provided for in
section 3, and other charges which would be payable under
this Lease by Lessee if the term of this Lease had not
expired, less
(b) the net proceeds, if any (which shall include,
whether or not paid to Lessor, all amounts paid by the
lessee under such re-letting specifically in respect of real
estate taxes on the Leased Property and up to $17,000 in
each year paid by the lessee under such re-letting
specifically in respect of insurance of the types required
to be carried by Lessor by section 20), of any re-letting
effected for the account of Lessee pursuant to the
provisions of section 36, after deducting all Lessor's
expenses in connection with such re-letting, including,
without limitation, all repossession costs, brokerage
commissions, legal expenses, attorneys' fees, expenses of
employees, alteration costs, and expenses of preparation for
such re-letting (Lessor's expenses shall not include
expenses for real estate taxes and expenses up to $17,000 in
any year for insurance of the types required to be carried
by Lessor by section 20).
Lessee shall pay such current damages to Lessor monthly on the
days on which the Basic Rent would have been payable under this
Lease if the term of this Lease had not expired, and Lessor shall
be entitled to recover the same from Lessee on each such day.
If any statute or rule of law governing a proceeding in which
such liquidated final damages are to be proved shall validly
limit the amount thereof to an amount less than the amount above
agreed upon, Lessor shall be entitled to the maximum amount
allowable under such statute or rule of law.
(B) At any time after such expiration, Lessee may (i) if such
expiration is during the preliminary term of this Lease, pay to
Lessor a sum equal to the Basic Cost to Lessor plus an amount
equal to the aggregate of the discounted values of the monthly
installments of the Phase I Basic Rent (less an amount equal to
$10,000 per annum) from the date of such payment to the date the
then current term of this lease would have normally expired had
such expiration not occurred, obtained by the monthly application
of a discount rate of 5 1/2% per annum or (ii) if such expiration
is during the remaining portion of the initial term after the
preliminary term of this Lease or during any renewal term hereof,
an amount equal to the aggregate of the discounted values of the
monthly installments of the aggregate of the Phase I and Phase II
<PAGE>
Basic Rents (less an amount equal to $20,000 per annum) from the
date of such payment to the date the then current term of this
Lease would have normally expired had such expiration not
occurred, obtained by the monthly application of a discount rate
of 5 1/2% per annum, whereupon, after such payment, all of
Lessee's liabilities and obligations for the payment of Basic
Rent under this Lease, except such as have theretofore accrued
and remain unsatisfied, shall cease. In such event, Lessee shall
be entitled to be paid by Lessor, at least annually, until the
then current term of this Lease would have expired had such
expiration not occurred, an amount (which together with other
such amounts paid by Lessor to Lessee from and after such
election shall not be in excess of the total rentals that would
be payable by Lessee during the entire remaining portion of the
then current term of this Lease) equal to the net proceeds
received by Lessor from any re-letting of the Leased Property
(which shall include, whether or not paid to Lessor, all amounts
paid by the lessee under such re-letting specifically in respect
of real estate taxes on the Leased Property and up to $17,000 in
each year paid by the lessee under such re-letting specifically
in respect of insurance of the types required to be carried by
Lessor in section 20) after all Lessor's expenses in connection
with such re-letting, including, without limitation, all
repossession costs, brokerage commissions, legal expenses,
attorneys' fees, expenses of employees, alteration costs, and
expenses of preparation for such re-letting (Lessor's expenses
shall not include expenses for real estate taxes and expenses up
to $17,000 in any year for insurance of the types required to be
carried by Lessor by section 20), all as determined by Lessor in
accordance with Lessor's accounting practices and principles,
provided, however, that at any time, prior to the time the
current term of this Lease in effect at the time of such
expiration would have expired but for such expiration, when
Lessor has re-let or re-lets the Leased Property or any part
thereof, it will, upon the written request of Lessee, in respect
of any such re-letting which is made under a lease for a term of
years to a lessee who, or whose obligations under such lease are
guaranteed by a guarantor who, in the reasonable judgment of
Lessor, is a credit risk substantially as good as Lessee and New
England Electric System, pay to Lessee, in lieu of that portion
of the annual payments of net proceeds previously provided for in
this sentence which are of the character of the proceeds included
in the payment of discounted installments provided for below, an
amount (which together with other such amounts shall not be in
excess of the amount that Lessee would have been entitled to pay
to Lessor in lieu of the annual payments of net proceeds
previously provided for in this sentence had this Lease so
expired on the date of such payment by Lessor) equal to the
aggregate of the discounted values of the installments of the net
proceeds to be received under any such re-letting that are not of
the character of additional rent under this Lease, including in
such proceeds any amounts, whether or not paid to Lessor, up to
$275,000 per annum payable by the lessee under such re-letting
<PAGE>
specifically in respect of real estate taxes on the Leased
Property and any amounts up to $17,000 per annum payable by the
lessee under such re-letting specifically in respect of insurance
of the types required to be carried by Lessor by section 20, from
the date of such payment to the earlier of (a) the date the then
current term of the lease under which such re-letting is effected
would normally expire or (b) the time the current term of this
Lease in effect at the time of such expiration of this Lease
would have expired but tor such expiration of this Lease,
obtained by the application, at such times as installments of
such rents fall due, of a discount rate of 5 1/2% per annum , and
provided, further, that if in any year during such period the
real estate taxes on the Leased Property are less than $270,000,
the Lessor will compensate Lessee by credit against additional
rent or otherwise for the amount by which such taxes are less
than $275,000; Lessor shall also pay to Lessee, as received, any
additional such proceeds up to an a nouns equal to the amount by
which such proceeds theretofore paid by Lessor to Lessee have
been, since the date of such election, less than the aggregate of
the installments of Basic Rent due from the date of such
election.
(C) At any time after any such expiration, whether or not
Lessor shall have collected any current damages under (A) above
and whether or not any action shall have been taken under (B)
above, Lessor shall be entitled to recover from Lessee, and
Lessee shall pay to Lessor, within 30 days after demand as and
for liquidated and agreed final damages for Lessee's default and
in lieu of all damages beyond the date of such payment, an amount
equal ro the excess, if any, of
(x) The Basic Rent (less an amount equal to $10,000 per
annum if such Basic Rent would have been due during the
preliminary term of this Lease and less an amount equal to
$20,000 per annum if such Basic Rent would have been due
during the remaining portion of the initial term after the
preliminary term of this Lease) and additional rent and
other charges which would be payable under this Lease from
the date of such demand (or, if it be earlier, the date to
which Lessee shall have satisfied in full its obligation
under this section to pay current damages) for what would be
the then unexpired term of this Lease if the same remained
in effect.
over
(y) the then fair net rental value of the Leased
Property for the same period,
minus a part of any amount paid by Lessee to Lessor under (B)
above equal to the amount that Lessee would have been entitled to
pay to Lessor under (B) above had such payment been made on the
date of such payment of liquidated damages and plus a part of any
amount paid by Lessor to Lessee under (B) above equal to the
<PAGE>
amount that Lessor would have had to pay to Lessee under (B)
above had such payment been requested and made on the date of
such payment of liquidated damages, whereupon, after such
payment, all of Lessee's liabilities and obligations under this
Lease, except such as have theretofore accrued and remain
unsatisfied, shall cease.
38. Lessee's Waiver of Rights. In the event of any expiration of
the term of this Lease, Lessee, so far as permitted by law,
hereby expressly waives (a) any notice of re-entry or of the
institution of legal proceedings to that end, (b) any right of
redemption or re-entry or re-possession or to restore the
operation of this Lease, (c) any right to a trial by jury in the
event of summary proceedings, and (d) the benefits of any laws
now or hereafter in force exempting property from liability for
rent or for debt.
39. No Waiver, etc., by Lessor. No failure by Lessor to insist
upon the strict performance of any provision of this Lease or to
exercise any right, power or remedy consequent upon a breach
thereof, and no acceptance of full or partial rent during the
continuance of any such breach, shall constitute a waiver of any
such breach or provision. No waiver of any breach shall affect or
alter this Lease which shall continue in full force and effect
with respect to any other then existing or subsequent breach
thereof.
40. Lessor's Remedies Cumulative, etc. Each right, power and
remedy of Lessor provided for in this Lease shall be cumulative
and concurrent and shall be in addition to every other right,
power or remedy provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise, and the
exercise or beginning of the exercise by Lessor of any one or
more of the rights, powers or remedies provided for in this Lease
or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise
by Lessor of any or all other such rights, powers or remedies.
41. Surrender of Leased Property. Lessee shall, upon any
expiration or earlier termination of this Lease peaceably vacate
and surrender to Lessor the Leased Property in good order,
condition and repair (ordinary wear and tear, and damage,
destruction, successful assertions of title paramount and Takings
referred to in sections 21 and 25 excepted) except as permitted
by sections 23 and 24.
42. Quiet Enjoyment. Lessee, upon paying the Basic Rent and all
additional rent and other charges provided for in this Lease and
performing and complying with all the provisions of this Lease,
shall. in addition to its rights under sections 24 and 25,
lawfully and quietly hold, occupy and enjoy the Leased Property
during the terms of this Lease without hindrance or molestation
of Lessor, or others claiming through Lessor and not through
Lessee, subject, however, to the matters referred to in section 1
<PAGE>
and subject to any Taking and to any acts of God or the public
enemy or the armed forces of the United States.
43. Conveyance by Lessor. In case John Hancock Mutual Life
Insurance Company, the original Lessor hereunder, or any
successor owner of the Lease Property, shall convey or otherwise
dispose of the Leased Property, all liabilities and obligations
on the part of said Company or successor owner as Lessor under
this Lease accruing thereafter shall terminate, and thereupon all
such liabilities and obligations shall be binding upon the new
owner.
44. Certificate as to Defaults, etc. Within 90 days after the end
of each calendar year, Lessee will furnish to Lessor a
certificate signed by the President or a Vice President and the
Treasurer or an Assistant Treasurer of Lessee to the effect that
there exists no condition or event which constitutes an Event of
Default, or which, after notice or lapse of time or both, would
constitute an Event of Default, or, if any such condition or
event exists, specifying the nature and period of existence
thereof and what action Lessee is taking or proposes to take with
respect thereto.
45. Estoppel Certificate by Lessee. Lessee at any time or from
time to time at the request of Lessor will execute, acknowledge
and deliver to Lessor a certificate by Lessee certifying (a) that
this Lease is unmodified and in full force and effect (or, if
there have been modifications, that the same is in full force and
effect as modified and stating the modification), (b) whether or
not there are then existing any offsets or defenses against the
enforcement of any of the provisions of this Lease (and, if so,
specifying the same and (c) the dates, if any, to which the Basic
Rent and additional rent and other charges have been paid in
advance. Any such certificate may be relied upon by any
prospective purchaser or mortgagee of the Leased Property or any
part thereof.
46. Furnishing of Financial Statements, etc. So long as Lessor
shall be John Hancock Mutual Life Insurance Company, Lessee will
furnish, or cause to be furnished, to Lessor
(a) as soon as practicable after the end of each fiscal year
and in any event within 120 days thereafter, a balance sheet of
Lessee and of New England Electric System (in consolidated form
if either shall have any consolidated subsidiaries) as at the end
of such year and a statement of income and of surplus of Lessee
and of New England Electric System (in consolidated form if
either shall have any consolidated subsidiaries) for such year,
setting forth in each case in comparative forte corresponding
figures for the previous fiscal year, all in reasonable detail
and certified (except for statements concerning Lessee, which may
be certified by a responsible financial officer of Lessee) by
independent public accountants of recognized standing selected by
New England Electric System and approved by Lessor; and
<PAGE>
(b) with reasonable promptness, such other information
regarding Lessee and New England Electric System and the Leased
Property and the use thereof as Lessor from time to time may
reasonably request.
47. Acceptance of Surrender. No surrender to Lessor of this Lease
or of the Leased Property or any part thereof or of any interest
therein by Lessee shall be valid or effective unless required by
the provisions of this Lease or unless agreed to and accepted in
writing by Lessor.
48. Joinder of Lessor. Lessor shall not be required to join in
any contest referred to in section 1, unless any Legal
Requirement requires that such contest be brought by or in the
name of Lessor, in which event Lessor shall join in such contest
or permit the same to be brought in its name, provided that (a)
Lessee shall pay all expenses in connection therewith and
indemnify and save harmless Lessor from and against the same and
any loss and (b) Lessor shall not be required to join in such
contest or permit the same to be brought or continued in its name
or to take any action in connection therewith if such contest or
action would in Lessor s opinion be prejudicial to its best
interest as owner of the Leased Property or otherwise.
49. Occupant Agent for Service. Lessee hereby irrevocably
constitutes and appoints such corporation, association,
partnership, individual or other entity as from time to time
shall be in actual possession of the Leased Property as the agent
and attorney-in-fact of Lessee to accept service of process in
any action, suit or proceeding, by Lessor relating to this Lease
or the Leased Property, and hereby irrevocably submits, for the
purposes of any such action, suit or proceeding, to the
jurisdiction of the courts of all jurisdictions in which the
Leased Property is situated, provided that a copy of any process
so served shall be mailed forthwith to Lessee as provided in
section 50.
50. Notices, etc. All notices, demands, requests and other
instruments under this Lease shall be in writing, and shall be
considered properly given if sent by United States registered or
certified mail, postage prepaid, (a) if to Lessee, addressed to
Lessee at 441 Stuart Street, Boston, Massachusetts 02116, or at
such other address as Lessee from time to time may have
designated by written notice to Lessor, and (b) if to Lessor,
addressed to Lessor at 200 Berkeley Street, Boston, Massachusetts
02117, Attention: City Mortgage Department, or at such other
address as Lessor from time to time may have designated by
written notice to Lessee.
51. Definitions. As used herein the following terms have the
following respective meanings:
additional rent: as defined in section 3.
<PAGE>
affiliate: an entity controlling, controlled by or under common
control with Lessee.
Agreement: as defined in section 5.
Basic Cost to Lessor: $70,000 plus the Cost of the New Buildings
from time to time as defined in the Agreement
Basic Rent: as defined in section 2.
default: any failure on the part of Lessee to perform or comply
with any of the provisions of this Lease, whether or not
constituting an Event of Default.
Event of Default: as defined in section 35.
Impositions: all water, sewer and other rents, rates and charges,
excises, levies, license fees, permit fees and other
authorization fees and all other charges (in each case whether
general or special, ordinary or extraordinary, or foreseen or
unforeseen), of every character (including all penalties or
interest thereon) which at any time during or in respect of any
term of this Lease may be assessed, levied, confirmed or imposed
on or in respect of or be a lien upon (a) the Leased Property or
any part thereof or any rent therefrom or any estate, right or
interest therein, or (b) any occupancy, use or possession of the
Leased Property or any part thereof, other than any taxes,
assessments (including, without limitation, assessments for
public improvements or benefits whether or not commenced or
completed during the term of this Lease), and other than any
franchise, capital stock or similar tax of Lessor, or any income
or excess profits tax of Lessor determined on the basis of its
general income or revenues or any estate, inheritance,
succession, gift, capital levy or similar tax of Lessor.
Insurance Requirements: all terms and provisions of each
insurance policy covering or applicable to the Leased Property or
any part thereof, all requirements of the issuers of all such
policies, all orders, rules, regulations and other requirements
of the National Board of Fire Underwriters (or any other body
exercising similar functions), and all reasonable rules and
regulations of John Hancock Mutual Life Insurance Company in
respect of any risks required to be insured against by it
hereunder as to which it is a self-insurer, applicable to or
affecting the Leased Property or any part thereof or any use or
condition of the Leased Property or any part thereof.
Lease Modification Closing: as defined in the Agreement referred
to in section 5.
Leased Buildings: as defined in section 1.
Leased Property: as defined in section 1.
<PAGE>
Leased Requirements: all statutes, codes, laws, acts, ordinances,
by-laws, orders, judgments, decrees, injunctions, rules,
regulations, permits, licenses, authorizations, directions and
requirements of all federal, state, county, municipal and other
governments, departments, commissions, boards, courts,
authorities, officials and officers, foreseen or unforeseen,
ordinary or extraordinary, which now or at any time hereafter may
be applicable to the Leased Property or any part thereof, or any
of the streets, alleys, passageways, sidewalks, curbs, gutters,
vaults and vault space adjoining the Leased Property or any part
thereof, or any use, manner of use or condition of the Leased
Property or any part thereof.
Lessee's Equipment: all machinery (whether or not affixed to the
Leased Building), furniture, furnishings, and other personal
property, other than items for which the Lessor made
reimbursement of the cost to the Lessee, not used or procured for
use in connection with the operation, maintenance or protection
of the Leased Building, as such, installed by Lessee in the
Leased Building.
Phase I Basic Rent: as defined in section 2.
Phase II Basic Rent: as defined in section 2.
Phase I Land: as defined in section 1.
Phase I Leased Buildings: as defined in section 1.
Phase I Property: as defined in section 1.
Phase II Land: as defined in section 1.
Phase II Leased Buildings: as defined in section 1.
Phase II Property: as defined in section 1.
Phase I Rentals: as defined in section 2.
Phase II Rentals: as defined in section 2.
preliminary term (of this Lease): as defined in section 2.
Restoration: as defined in section 21.
Taking: a taking of all or part of the Leased Property, or any
interest therein or right accruing thereto, as the result of or
in lieu of condemnation or eminent domain.
term of this Lease; term hereof: the initial term of this Lease
and any renewal term of this Lease for which Lessee shall have
exercised its renewal option (initial term and renewal term are
defined in sections 1 and 34).
<PAGE>
52. Purchase of Property. Lessee may, by written notice to Lessor
given not more than thirty nor less than eighteen months prior to
the end of the initial term or any renewal term of this Lease
elect to have the Property appraised by three qualified
appraisers, one of whom shall be promptly selected by Lessor, one
of whom shall be promptly selected by Lessee and one of whom
shall be promptly selected by said two appraisers selected by
Lessor and Lessee, which appraisers shall undertake, at Lessee's
sole expense, to appraise the Property at least by the thirtieth
day before the beginning of the last year of the then current
term of this Lease. Upon receipt of a written appraisal agreed
upon in writing by at least two of said appraisers, Lessee may,
by written notice to Lessor given prior to the beginning of such
last year, elect and, subject to obtaining necessary approvals of
regulatory authorities having jurisdiction, shall thereupon
become obligated to purchase the Leased Property at any time
designated in such notice during such last year and at least
sixty days after the date of such notice. for a Purchase Price
equal to the then value of the Leased Property as appraised by
said appraisers, as aforesaid which Purchase Price shall be
increased by an amount equal to the net amount theretofore
expended by Lessor to restore the Leased Property after any
damage thereto or destruction or Taking thereof or successful
assertion of title paramount thereto which occurred prior to such
appraisal, and is reflected in such appraisal, and which Purchase
Prices shall be decreased by the appraised amount of any loss in
value of the Leased Property due to any damage, destruction.
successful assertion of title paramount or Taking referred to in
sections 21, 23, 24 or 2: which occurred after such appraisal,
and is not reflected in such appraisal, to the extent that such
loss has not been restored by Lessor such appraised amount to be
determined by said appraisers as soon as possible after the
occurrence involving such decrease in value in the same manner as
the Purchase Price was determined, provided, that such Purchase
Price shall in no event be less than $950,000 if such purchase is
made during the last year of the initial term of this Lease nor
less than $665,000 if such purchase is made during the last year
of the first renewal term of this Lease. nor less than $380,000
if such purchase is made during the last year of the second
renewal term of this Lease. If necessary approvals of regulatory
authorities have not been obtained within 90 days of Lessee's
notice of election, such election shall be voided without
liability to Lessee or Lessor, and Lessee may elect, by written
notice to Lessor given within 10 days after said 90-day period to
extend this Lease for any renewal term or terms provided for in
sections 34, notwithstanding the fact that said notice would not
otherwise be timely under said section 34.
If Lessee shall so notify Lessor, Lessor shall, on the date
designated in such notice, furnish to Lessee at the place to
which service of notices upon Lessee is then to be given under
section 50 of this Lease, a quitclaim deed to the Leased
Property, conveying to Lessee a good and marketable title in fee
simple to the Leased Property, free and clear of all mortgages,
<PAGE>
liens, charges, encumbrances, easements, conditions and rights of
re-entry or forfeiture, subjects only to: (a) this Lease; (b)
matters, inc tiding, without limitation, those set forth in
Schedule A hereto, existing, at June 28, 1963 to the extent such
matters relate to the Phase I Property, and existing at the date
of this Lease to the extent such matters relate to the Phase II
Property; (c) all taxes, special assessments and Impositions and
liens required to be paid as additional rent or otherwise or
discharged by the Lessee under any of the provisions of this
Lease; (d ) acts done by the Lessee hereunder or by Lessor at the
request of or with the consent of Lessee, and claims by persons
claiming by, through or under the Lessee; and ( e ) all Takings,
and all other matters, if any, to which this Lease is subject
other than matters created by the Lessor hereunder or at the
request of or with the consent of Lessor, and by persons, other
than the Lessee and those claiming by, through or under the
Lessee, claiming by, through or under the Lessor. If Lessor is
unable, with the exercise of due diligence, to convey such title
to Lessee, in addition to any other remedies conferred by law,
Lessee may elect either (a) to take the title as it then is, and
deduct from the Purchase Price liens or encumbrances of an
ascertainable amount, or (b) to terminate its obligation to
purchase the property, in which event the Lessee may
(notwithstanding tile fact that the Lessee may have elected to
extend the term hereof, as provided in section 34) by notice in
writing given to the Lessor within 3 months after the date of
such failure, terminate this Lease as of the last day of any
succeeding month, provided that not more than 6 full calendar
months shall elapse between the date of such failure and the date
of such termination or (c) to extend this Lease for any renewal
term or terms as provided in section 34 upon written notice
thereof given to Lessor within 2 months after the date of such
failure or the earlier delivery by Lessor of written notice that
it will so fail (notwithstanding the fact that such notice would
not otherwise be timely under section 34). If such 2-month period
extends beyond the end of any term of this Lease such term shall
be deemed to be extended to the end of such period or the earlier
election by Lessee so to extend this Lease.
53. Miscellaneous. Wherever in this Lease it is provided that any
act or thing shall require the consent or approval of the Lessor,
such requirement shall be deemed to include a provision that such
consent or approval shall not be unreasonably withheld. If any
provision of this Lease or any application thereof shall be
invalid or unenforceable, the remainder of this Lease and any
other application of such provision shall not be affected
thereby. Neither this Lease nor any term or provision hereof may
be changed, waived, discharged or terminated orally, but only by
an instrument in writing signed by the party against which the
enforcement of the change, waiver, discharge or termination is
sought. This lease shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of
Massachusetts. The captions in this Lease are for convenience of
reference only and shall in no way define, limit or describe any
<PAGE>
of the provisions of this Lease. This Lease may be executed in
several counterparts, each of which shall be an original but all
of which shall constitute but one and the same instrument. The
covenants and agreements of this Lease shall, subject to the
provisions of this Lease, bind and inure to the benefit of
Lessor, its successors and assigns, and Lessee, its successors
and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to
be executed and their respective corporate seals to be hereunto
affixed and attested by their respective officers hereunto duly
authorized.
JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY,
Lessor
(CORPORATE SEAL)
Attest: Raymond O. Hollis By Gordon E. Emerson, Jr.
Assistant Secretary Vice President
Witness: Thomas J. Foley
NEW ENGLAND POWER SERVICE
COMPANY,
Lessee
Attest: Richard B. Dunn By Robert F. Krause
Secretary President
Witness: John F. Mack
Edward W. Dence, Jr.
(CORPORATE SEAL)
<PAGE>
SCHEDULE A
PART I
All and the same premises conveyed to John Hancock Mutual
Life Insurance Company, Grantee, by Massachusetts Electric
Company, Grantor, by deed dated June 19, 1963 duly recorded with
Worcester District Registry or Deeds and therein described as
follows:
"A certain tract or parcel of land with the buildings
thereon situated on the Boston-Worcester Turnpike State Highway
Route 9 in Westborough, Worcester County, Massachusetts, being
more particularly bounded and described as follows:
Commencing at the most northwesterly corner of the
premises hereby conveyed at a point on said State Highway,
said point being N. 89 deg. 07'44" E., 365.23 feet from a
stake at the northwesterly corner of land of the Grantor--
said last mentioned point being N. 89 deg. 07' 44" E.,
179.65 feet from a Massachusetts highway bound;
thence running N. 89 deg. 07' 44" E., 678.12 feet to a
Massachusetts highway bound;
thence running S. 0 deg. 52' 16" E., 15 feet to a
Massachusetts highway bound;
thence running N. 89 deg. 07' 44" E., 167 feet to a
Massachusetts highway bound;
thence running N. 0 deg 52' 16" W., 15 feet to a
Massachusetts highway bound;
thence running N. 89 deg. 07' 44" E., 290.66 feet to a point
which is S. 89 deg. 07' 44" W., 19.34 feet from a Massachusetts
highway bound--said last five courses and distances being by said
Boston-Worcester Turnpike State Highway Route 9;
thence running S. 20 deg. 21' 30" W., 336.37 feet to a
point;
thence running S. 70 deg. 41' 44" W., 525.67 feet to a
point;
thence running S. 19 deg. 18' 16" E., 292.60 feet to a
point;
thence running S. 14 deg. 48' 40" E., 318.27 feet to a
point;
thence running S. 89 deg. 07' 44" W., 270 feet to a point;
thence running N. 47 deg. 21' 07'' W., 443.53 feet to a
point;
<PAGE>
thence running N. 19 deg. 18' 16" W., 293.67 feet to a
point;
thence running N. 0 deg. 52' 16" W., 482.25 feet to the
point of beginning--said last eight courses and distances being
by other land of said Grantor.
Containing 16.68 acres and being shown on plan entitled:
"NEW ENGLAND POWER SERVICE COMPANY PART OF NEW ENGLAND ELECTRIC
SYSTEM BOSTON, MASS. PLAN SHOWING LAND IN WESTBOROUGH,
MASSACHUSETTS TO BE CONVEYED BY MASSACHUSETTS ELECTRIC COMPANY TO
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY SCALE 1" = 100' DATE:
FEBRUARY 26, 1963 D-5954-2', to be recorded herewith.
"Together with the following rights and easements, as
appurtenant to the land hereby conveyed:
The perpetual right and easement to pass and re-pass with
vehicles or otherwise over a roadway 30 feet in width located on
remaining land of said Grantor, as shown on plan hereinabove
referred to, with the right to do such acts or things on said
roadway (including grading, paving and other improvements
thereto) as may be reasonably necessary and proper that said
roadway may be readily used as a means of ingress and egress to
and from the land hereby conveyed; and with the further right to
construct and maintain such slopes and/or embankments on
remaining land of the Grantor immediately adjacent to said
roadway as may be reasonably necessary and proper in connection
with the construction of said roadway and the use thereof for the
purposes herein set forth.
The perpetual right and easement to install, construct,
maintain and operate a line of underground cables or conduits
with wires or cables therein, together with the necessary
manholes, for the transmission of electricity and telephone
service in, through and across remaining land of Grantor lying
West of the land hereby conveyed to serve any building or
buildings which may be constructed from time to time hereafter on
the land hereby conveyed; such line to run by the shortest
reasonably feasible route from any point on the westerly boundary
of the remaining land of Grantor, which lies due West of any
point on the westerly or southwesterly boundaries of the land
conveyed hereby, which boundaries are shown on said plan as,
respectively, a line of 482.25 feet running N. 0 52' 16" W., a
line of 293.6; feet running N. 19 deg. 18' 16" W., and a line of
443.53 feet running N. 47 deg. 21' 07" W., to any point on said
westerly or southwesterly boundaries of the land conveyed hereby.
The perpetual right and easement to install, construct,
maintain and operate a line of poles with wires strung upon and
from the same, for the transmission of electricity and telephone
service, over and across remaining land of Grantor, to serve any
building or buildings which may from time to time hereafter be
constructed on the land hereby conveyed; such line to run
<PAGE>
southerly along the westerly boundary of remaining, land of
Grantor from the said Boston-Worcester Turnpike State Highway
Route 9 to any point on said westerly boundary, which lies due
West of any point on the westerly or southwesterly boundaries of
the land conveyed hereby, which boundaries are shown on said plan
as, respectively, a line of 482.25 feet running N. 0 deg. 52' 16"
W., a line of 293.67 feet running N. 19 deg. 18' 16" W., and a
line of 443.53 feet running N. 47 deg. 21' 07" W., to any point
on said westerly or southwesterly boundaries of the land conveyed
hereby.
The perpetual right and easement to install, construct,
maintain and operate a line of underground pipes for the
conveyance of water, in, through and across remaining land of
Grantor lying West of the land hereby conveyed to serve any
building or buildings which may from time to time hereafter be
constructed on the land hereby conveyed; such line to run by the
shortest reasonably feasible route from any point on the westerly
boundary of the remaining land of Grantor, which lies due West of
any point on the westerly or southwesterly boundaries of the land
conveyed hereby, which boundaries are shown on said plan as,
respectively; a line of 482.25 feet running N. 0 deg. 52' 16" W.,
a line of 293.67 feet running N. 19 deg. 18' 16" W., and a line
of 443.53 feet running N. 47 deg. 21' 07 W., to any point on said
westerly or southwesterly boundaries of the land conveyed hereby.
The perpetual right and easement to enter upon remaining
land of Grantor with men, machinery and equipment and to do any
and all acts or things which may be necessary or proper in
connection with the construction, installation, maintenance and
repair of any and all of the ways and facilities existing,
installed or constructed in or upon the land hereby conveyed
under any and all of the foregoing rights and easements
hereinabove set forth and, without limiting the generality of the
foregoing, including the right to excavate so much thereof as may
be necessary and proper in connection with the installation,
construction, maintenance and repair of any or all of said
facilities; and the right to make such use of land in the
immediate vicinity of any such installation or installations as
may be reasonably necessary and proper under the circumstances.
"EXCEPTING AND RESERVING unto the Grantor, its successors and
assigns, as appurtenant to and for the benefit of its remaining
land, the following rights and easements, namely:
The perpetual right and easement to pass and re-pass with
vehicles or otherwise over a roadway 30 feet in width located on
the land hereby conveyed as shown on the plan herein above
referred to, with the right to do such acts or things on said
roadway (including grading, paving and other improvements
thereto) as may be reasonably necessary and proper in order that
said roadway may be readily used as a means of ingress and egress
to and from the Grantor's remaining land; and with the further
right to construct and maintain such slopes and/or embankments on
<PAGE>
the land hereby conveyed immediately adjacent to said roadway as
may be reasonably necessary and proper in connection with the
construction of said roadway and the use thereof for the purposes
herein set forth.
The perpetual right and easement to install, construct,
maintain and operate in, through and across the land conveyed
hereby two underground lines of pipes in connection with sewage
disposal systems from any and all buildings which may at any time
hereafter be constructed on remaining land of the Grantor, as
follows: one line of such pipes to run the shortest reasonably
feasible route from any point on the southwesterly or southerly
boundaries of tile land hereby conveyed, which boundaries are
shown on said plan as, respectively, a line of 443.53 feet
running N 47 deg. 21' 07" W., a line of 293.67 feet running N. 19
deg. l8' 16" W., and a line of 270.00 feet running S. 89 deg. 07'
44" W., to the nearest connecting plug in any sewage disposal
system existing on the land hereby conveyed at the time of the
installation of such line of pipes; and one line of such pipes to
run by the shortest reasonably feasible route from any point on
the easterly boundaries of the land hereby conveyed, which
boundaries are shown on said plan as, respectively, a line of
525.67 feet running S. 70 deg. 41' 44" W., and a line of 292.60
feet running S. 19 deg. 18' 16" E., to the nearest connecting,
plug in any sewage disposal system existing on the land hereby
conveyed at the time of the installation of such line of pipes
or, in the alternative and not in addition, to any leaching field
in the approximate location shown on said plan as 'Proposed
Leaching Field' or, in the alternative and not in addition, to
any septic tank in the approximate location shown on said plan as
'Proposed Septic Tank'; and the right to connect each such sewage
disposal system into such sewage disposal systems on the land
hereby conveyed, or into any such leaching field or septic tank,
as the case may be, and further, in connection with the above,
the right to use such lines of pipes to transmit sewage to, and
only to, said leaching field and septic tank (and through them to
any other then existing leaching fields and septic tanks or other
sewage disposal facilities connected to them and in respect of
which the owner, at the time, of the land hereby conveyed has the
right to permit such use); provided, however, that each such
right to connect with or transmit sewage to and through said
sewage systems, leaching fields, septic tanks and other sewage
disposal facilities shall at all times be subject to the
conditions that: (i) the exercise of any such right shall not
unreasonably interfere with the then existing use of any such
system, leaching field, septic tank or other facility, or cause
the same to be inadequate for continuation of its then existing
use; and (ii) the owners from time to time of the remaining land
of Grantor which are benefitting from such exercise shall each
bear a part of the cost of maintaining, repairing, extending or
enlarging any such system, leaching field, septic tank or other
facility proportionate to such owner's said use thereof.
<PAGE>
The perpetual right and easement to install, construct,
maintain and operate two underground drains for the purpose of
draining surface water and other water collected on the Grantor's
remaining land and land contiguous thereto which the Grantor may
hereafter acquire, in, through, under and across the land hereby
conveyed, one in the approximate location of the proposed drain
over the easterly and northerly part of the land hereby conveyed
shown on said plan as 'Approx. Location of Proposed Drain' and
one in the approximate location of the existing drain over the
northwesterly corner of the land hereby conveyed shown on said
plan as 'Existing Drain'.
The perpetual right and easement to install, construct,
maintain and operate a line of underground cables or conduits
with wires or cables therein, together with the necessary
manholes, for the transmission of electricity and telephone
service in, through and across land hereby conveyed to serve any
building or buildings which may be constructed from time to time
hereafter on remaining land of the Grantor; such line to run by
the shortest reasonably feasible route from any point on the
westerly or southwesterly boundaries of the land hereby conveyed,
which boundaries are shown on said plan as, respectively, a line
of 482.25 feet running N. 0 deg. 52' 16" W., a line of 293.67
feet running N. 19 deg. 18' 16" W., and a line of 443.53 feet
running N. 47 deg. 21' 07" W., to any point on the easterly
boundaries of the land hereby conveyed, which boundaries are
shown on said plan as, respectively, a line of 525.67 feet
running S. 70 deg. 41' 44" W., and lines of 292.60 feet running
S. 19 deg. 18' 16" E., and 318.27 feet running S. 14 deg. 48' 40"
E.
The perpetual right and easement to install, construct,
maintain and operate a line of underground pipes for the
conveyance of water, in, through and across the land hereby
conveyed, to serve any building or buildings which may from time
to time hereafter be constructed on remaining land of said
Grantor; such line to run by the shortest reasonably feasible
route from any point on the westerly or southwesterly boundaries
of the land hereby conveyed, which boundaries are shown on said
plan as, respectively, a line of 482.25 feet running N. 0 deg.
52' 16" W., a line of 293.67 feet running N. 19 deg. 18' 16" W.,
and a line of 443.53 feet running N. 47 deg. 21' 07" W., to any
point on the easterly boundaries of the land hereby conveyed,
which boundaries are shown on said plan as, respectively, a line
of 525.67 feet running S. 70 deg. 41' 44" W., and lines of 292.60
feet running S. 19 deg. 18' 16" E., and 318.27 feet running S. 14
deg. 48' 40" E.
The perpetual right and easement to enter upon the land
hereby conveyed with men, machinery and equipment and to do any
and all acts or things which may be necessary or proper in
connection with the construction, installation, maintenance and
repair or any and all of the ways and facilities existing,
installed or constructed in or upon the land hereby conveyed
<PAGE>
under any and all of the foregoing rights and easements
hereinabove set forth, and, without limiting the generality of
the foregoing, including the right to excavate so much thereof as
may be necessary and proper in connection with the installation,
construction, maintenance and repair of any or all of said
facilities; and the right to make such use of land in the
immediate vicinity of any such installation or installations as
may be reasonably necessary and proper under the circumstances
"Being a portion of the premises conveyed to the
Massachusetts Electric Company by William Hooper et ux by deed
dated April 2, 1962, recorded with Worcester District Registry of
Deeds in Book 4270, Page 36; and said premises are conveyed
subject to a drainage easement in favor of The Commonwealth of
Massachusetts dated July 17, 1930, recorded with said Deeds in
Book 2526, Page 472.
"The exact location of any or all of the rights and
easements hereinabove described (other than the 30-foot roadways)
shall become established by and upon the construction and
installation from time to time of the facilities hereinabove set
forth and the recording with Worcester District Registry of Deeds
of a plan or plans showing the locations thereof in, under or
across the land subject thereto.
"Each right and easement granted to the Grantee or reserved
to the Grantor hereunder may be exercised only in such manner and
to such extent that such exercise does not unreasonably interfere
with the use, operation or maintenance of the land subject
thereto or any buildings or structures or other improvements
existing on such land at the time of such exercise.
"The location of any way or the line of any facility which
exists or has been installed under any easement or right granted
or reserved herein may be changed between any two points on such
way or line lying within the boundaries of the land subject
thereto at the option of and at the sole expense of the owner
from time to time of the land subject thereto provided that the
work to be done in connection therewith shall be done under the
supervision of the person exercising such easement or right or
his agents, if he so elects, and that the way or facility as so
relocated shall be of substantially equal convenience and utility
and shall not be more expensive or burdensome to such person to
maintain, and provided that such change shall not unreasonably
interfere with the use being made thereof during the making of
such change."
<PAGE>
PART II
All and the same premises conveyed to JOHN HANCOCK LIFE
INSURANCE COMPANY, Grantee, by MASSACHUSETTS ELECTRIC COMPANY,
Grantor, by deed dated October 13, 1966 duly recorded with
Worcester District Registry of Deeds and therein described as
follows:
A certain tract or parcel of land situated off the southerly
side of the Boston-Worcester Turnpike State Highway Route 9 in
Westborough, Worcester County, Massachusetts and bounded and
described as follows:
Beginning at a point at other land now or formerly of the
Grantor, which point is the most northeasterly corner of the
premises hereby conveyed and is located S. 20 deg. 21' 30" W.,
100 feet from a stake, which stake is situated S. 89 deg. 07' 44"
W., 19.34 feet from a Massachusetts Highway Bound on the
southerly side of said Boston-Worcester Turnpike State Highway
Route 9;
thence running S. 01 deg. 13' 58" W., 973.68 feet to a
point;
thence turning and running S. 89 deg. 07' 44" W., 379.34
feet to an iron pin at land of the Grantee -- said last two
courses and distances being by land now or formerly of the
Grantor;
thence turning and running N. 14 deg. 48' 40" W., 318.27
feet to a stake;
thence turning and running N. 19 deg. 18' 16" W., 292.60
feet to a drill hole;
thence turning and running N. 70 deg. 41' 44" E., 525.67
feet to a spike;
thence turning and running N. 20 deg. 21' 30" E., 236.37
feet to the point of beginning -- said last four courses and
distances being by other land of the Grantee.
Containing 7.74 acres of land more or less and being shown
on a plan entitled: "NEW ENGLAND POWER SERVICE COMPANY, PART OF
NEW ENGLAND ELECTRIC SYSTEM, BOSTON, MASS. PLAN SHOWING LAND IN
WESTBOROUGH, MASSACHUSETTS TO BE CONVEYED BY MASSACHUSETTS
ELECTRIC COMPANY TO JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
SCALE 1" = 100' DATE MAY 24, 1966 D-6306", to be recorded
herewith.
Together with the following rights and easements, as
appurtenant to the land hereby conveyed:
<PAGE>
The perpetual right and easement to install, construct,
maintain and operate a line of underground cables or conduits
with wires or cables therein, together with the necessary
manholes, for the transmission of electricity and telephone
service in, through and across remaining land of the Grantor
which is situated west of the land conveyed to the Grantee by the
Grantor by deed dated June 19, 1963 and recorded with Worcester
District Registry of Deeds in Book 4381, Page 408, to serve any
building or buildings which may be constructed from time to time
hereinafter on the land hereby conveyed; such line to run by the
shortest reasonably feasible route from any point on the westerly
boundary of the remaining land of the Grantor, which lies due
west of any point on the westerly or southwesterly boundaries of
the land conveyed to the Grantee by the Grantor by deed dated
June 19, 1963 and recorded with Worcester District Registry of
Deeds in Book 4381, Page 408, which boundaries are shown on said
plan as, respectively, a line of 482.25 feet running N. 0 deg.
52' 16" W., a line of 293.67 feet running N. 19 deg. 18' 16" W.,
and a line of 443.53 feet running N. 47 deg. 21' 07" W., to any
point on said westerly or southwesterly boundaries of the land
conveyed to the Grantee by said deed recorded with Worcester
District Registry of Deeds in Book 4381, Page 408.
The perpetual right and easement to install, construct,
maintain and operate a line of poles with wires strung upon and
from the same, for the transmission of electricity and telephone
service, over and across remaining land of the Grantor, to serve
any building or buildings which may from time to time hereafter
be constructed on the land hereby conveyed; such line to run
southerly along the westerly boundary of remaining land of the
Grantor from the said Boston-Worcester Turnpike State Highway
Route 9 to any point on said westerly boundary, which lies due
west of any point on the westerly or southwesterly boundaries of
the land conveyed to the Grantee by the Grantor by deed dated
June 19, 1963 and recorded with Worcester District Registry of
Deeds in Book 4381, Page 408, which boundaries are shown on said
plan as, respectively, a line of 482.25 feet running N. 0 deg.
52' 16" W., a line of 293.67 feet running N. 19 deg. 18' 16" W.,
and a line of 443.53 feet running N. 47 deg 21' 07" W.
The perpetual right and easement to install, construct,
maintain and operate a line of underground pipes for the
conveyance of water, in, through and across remaining land of the
Grantor lying west of the land conveyed to the Grantee by the
Grantor by deed dated June 19, 1963 and recorded with Worcester
District Registry of Deeds in Book 4381, Page 408, to serve any
building or buildings which may from time to time hereafter be
constructed on the land hereby conveyed; such line to run by the
shortest reasonably feasible route from any point on the westerly
boundary of the remaining land of the Grantor, which lies due
west of any point on the westerly or southwesterly boundaries of
the land conveyed by the Grantor to the Grantee by deed dated
June 19, 1963 and recorded with Worcester District Registry of
Deeds in Book 4381, Page 408, which boundaries are shown on said
<PAGE>
plan as, respectively, a line of 482.25 feet running N. 0 deg.
52' 16" W., a line of 293.67 feet running N. 19 deg. 18' 16" W.,
and a line of 443.53 feet running N. 47 deg. 21' 07" W., to any
point on said westerly or southwesterly boundaries of the land
conveyed to the Grantee by said deed dated June 19, 1963 and
recorded with Worcester District Registry of Deeds in Book 4381,
Page 408.
The perpetual right and easement to enter upon remaining
land of the Grantor with men, machinery and equipment and to do
any and all acts or things which may be necessary or proper in
connection with the construction, installation, maintenance and
repair of any and all of the facilities existing, installed or
constructed in or upon the remaining land of the Grantor under
any and all of the rights and easements hereinabove set forth and
without limiting the generality of the foregoing, including the
right to excavate so much thereof as may be necessary and proper
in connection with the installation, construction, maintenance
and repair of any or all of said facilities; and the right to
make such use of land in the immediate vicinity of any such
installation or installations as may be reasonably necessary and
proper under the circumstances.
EXCEPTING AND RESERVING unto the Grantor, its successors and
assigns, as appurtenant to and for the benefit of its remaining
land, the following rights and easements, namely:
The perpetual right and easement to pass and re-pass with
vehicles or otherwise over a roadway 30 feet in width located on
the land hereby conveyed as shown on the plan hereinabove
referred to, with the right to do such acts or things on said
roadway (including grading, paving and other improvements
thereto) as may be readily used as a means of ingress and egress
to and from the Grantor's remaining land; and with the further
right to construct and maintain such slopes and/or embankments on
the land hereby conveyed immediately adjacent to said roadway as
may be reasonably necessary and proper in connection with the
construction of said roadway and the use thereof for the purposes
herein set forth.
The perpetual right and easement to install, construct,
maintain and operate in, through and across the land conveyed
hereby an underground line of pipes in connection with sewage
disposal systems from any and all buildings which may at any time
hereafter be constructed on remaining land of the Grantor, said
line of pipes is to run by the shortest reasonably feasible route
from any point on the easterly and/or southerly boundaries of the
land hereby conveyed, which boundaries are shown on said plan as
respectively, a line of 973.68 feet and running S. 01 deg. 13'
58" W. and a line of 379.34 feet and running S. 89 deg. 07' 44"
W. to the nearest connecting plug in any sewage disposal system
existing on the land hereby conveyed at the time of the
installation of such line of pipes or, in the alternative and not
in addition, to any leaching field in the approximate locations
<PAGE>
shown on said plan as "Existing and Proposed Leaching Fields" or,
in the alternative and not in addition, to any septic tank in the
approximate location shown on said plan as "Septic Tank"; and the
right to connect each such sewage disposal system into such
sewage disposal systems on the land hereby conveyed, or into any
such leaching field or septic tank, as the case may be, and
further, in connection with the above, the right to use such
lines of pipes to transmit sewage to, and only to, said leaching
field and septic tank (and through them to any other then
existing leaching fields and septic tanks or other sewage
disposal facilities connected to them, if the owner of the land
hereby conveyed has, at the time of such connection, the right to
permit such use); provided however, that each such right to
connect with or transmit sewage to and through said sewage
systems, leaching fields, septic tanks and other sewage disposal
facilities shall at all times be subject to the conditions that:
(i) the exercise of any such right shall not unreasonably
interfere with the then existing use; and (ii) the owners from
time to time of the remaining land of the Grantor which are
benefiting from such exercise shall each bear a part of the cost
of maintaining, repairing, extending or enlarging any such
system, leaching field, septic tank or other facility
proportionate to such owner's said use thereof.
The perpetual right and easement to install, construct,
maintain and operate an underground drain for the purpose of
draining surface water and other water collected on the Grantor's
remaining land and land contiguous thereto which the Grantor may
hereafter acquire, in, through, under and across the land hereby
conveyed, in the approximate location of the proposed drain over
the easterly and northerly part of the land hereby conveyed shown
on said plan as "Approx. Location ok Proposed Drain".
The perpetual right and easement to enter upon the land
hereby conveyed with men, machinery and equipment and to do any
and all acts or things which may be necessary or proper in
connection with the construction, installation, maintenance and
repair of any and all of the ways and facilities existing,
installed or constructed in or upon the land hereby conveyed
under any and all of the foregoing rights and easements
hereinabove set forth, and, without limiting the generality of
the foregoing, including the right to excavate so much thereof as
may be necessary and proper in connection with the installation,
construction, maintenance and repair of any or all of said
facilities; and the right to make such use of land in the
immediate vicinity of any such installation or installations as
may be reasonably necessary and proper under the circumstances.
Being a portion of the premises conveyed to the
Massachusetts Electric Company by William Hooper et ux by deed
dated April 2, 1962, recorded with Worcester District Registry of
Deeds in Book 4270, Page 36; and said premises are conveyed
subject to a drainage easement in favor of The Commonwealth of
Massachusetts dated July 17, 1930, recorded with said Deeds in
<PAGE>
Book 2526, Page 472; and being a portion of the premises conveyed
to Massachusetts Electric Company by Milton Alden et ux by deed
dated June 24, 1965 and recorded with said Deeds in Book 4575,
Page 12.
The exact location of any or all of the rights and easements
hereinabove described (other than the 30-foot roadway) shall
become established by and upon the construction and installation
from time to time of the facilities hereinabove set forth and the
recording with Worcester District Registry of Deeds of a plan or
plans showing the locations thereof in, under or across the land
subject thereto.
Each right and easement granted to the Grantee or reserved
to the Grantor hereunder may be exercised only in such manner and
to such extent that such exercise does not unreasonably interfere
with the use, operation or maintenance of the land subject
thereto or any buildings or structures or other improvements
existing on such land at the time of such exercise.
The location of any way or the line of any facility which
exists or has been installed under any easement or right granted
or reserved herein may be changed between any two points on such
way or line lying within the boundaries of the land subject
thereto at the option of and at the sole expense of the owner
from time to time of the land subject thereto provided that the
work to be done in connection therewith shall be done under the
supervision of the person exercising such easement or right or
his agents, if he so elects, and that the way or facility as so
relocated shall be of substantially equal convenience and utility
and shall not be more expensive or burdensome to such person to
maintain, and provided that such change shall not unreasonably
interfere with the use being made thereof during the making of
such change.
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK SS.
On this 14th day of October, 1966, before me appeared Gordon
E. Emerson, jr. and Raymond O. Hollis to me personally known, who
being by me duly sworn, did say that they are the Vice President
and Assistant Secretary, respectively of John Hancock Mutual Life
Insurance Company, a corporation, and that the seal affixed to
the foregoing instrument is the corporate seal of said
corporation, and that said instrument was signed and sealed by
them in behalf of said corporation by authority of its Board of
Directors, and the said Gordon E. Emerson, jr. and Raymond O.
Hollis acknowledged said instrument to be the free act and deed
of said corporation.
Thomas J. Foley
Notary Public
My commission expires
Thomas J. Foley
Notary public in and for
The Commonwealth of Massachusetts
my commission expires May 14, 1971.
(Notarial Seal)
THE COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK SS.
On this 14th day of October, 1966, before me appeared Robert
F. Krause and Richard B. Dunn to me personally known, who being
by me duly sworn, did say that they are the President and
Secretary, respectively, of New England Power Service Company, a
corporation, and that the seal affixed to the foregoing
instrument is the corporate seal of said corporation, and that
said instrument was signed and sealed by them in behalf of said
corporation by authority of its Board of Directors, and the said
Robert F. Krause and Richard B. Dunn acknowledged said instrument
to be the free act and deed of said corporation.
Robert D. Hartshorne, Jr.
Notary Public
My commission expires April 29, 1971.
(Notarial Seal)
<PAGE>
Exhibit B-2(ii)
LEASE MODIFICATION AGREEMENT, dated January 2, 1970, between John
Hancock Mutual Life Insurance Company ("Lessor"), a Massachusetts
corporation having its principal office and place of business at
200 Berkeley Street, in the City of Boston, County of Suffolk,
The Commonwealth of Massachusetts, and New England Power Service
Company ("Lessee"), a Massachusetts corporation having its
principal office and place of business at Turnpike Road, in the
Town of Westborough, County of Worcester, The Commonwealth of
Massachusetts:
The Supplemented Lease, dated October 14, 1966, between Lessor
and Lessee is hereby modified and amended as follows:
Items (x) and (y) of clause B of section 2 of the
Supplemented Lease are modified and amended to read as follows:
"(x)$744,164 during the remaining portion of the initial
term after the preliminary term of this Lease, payable in
installments in advance of(y)$62,013.67 on the first day of such
remaining portion of the initial term after the preliminary term
of this Lease and on the first day of each succeeding calendar
month."
In Witness Whereof, the parties hereto have caused this
Agreement to be executed and their respective corporate seals to
be hereunto affixed and attested by their respective officers
thereunto duly authorized.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY,
Lessor
By s/ J. A. Worthen
______________________________________
Second Vice President
Attest:
s/ R. L. McVie
_______________________________
Witness:
s/ C. S. Perkins
________________________________
s/ John M, Kane, Jr,
________________________________
<PAGE>
NEW ENGLAND POWER SERVICE COMPANY,
Lessee
By s/ R. Leigh FitzGerald
_________________________________
Attest:
s/ Albert E. Westwood
_________________________________
Witness:
s. Sara L. Kinneen
__________________________________
s/ Frederic E. Greenman
___________________________________
