SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
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Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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BGS SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
Date of Report (Date of earliest event reported) October 26, 1995
MASSACHUSETTS 0-02192 04-2559993
(State of (Commission File (I.R.S. Employer
incorporation) Number) Identification
Number)
128 TECHNOLOGY CENTER, WALTHAM, MASSACHUSETTS 02254-9111
(Address of Principal Executive Office)
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Registrant's telephone number including area code (617) 891-0000
ITEM 5. Other Events.
On October 26, 1995, the registrant, executed a Contract of Sale
("Agreement") for the purchase of the land, building and improvements
(collectively the "Property") known as 580 Winter Street, Waltham,
Massachusetts. The land consists of approximately 4.45 acres improved by an
80,000 s.f. single-story, brick building.
580 Winter Street is owned by 580 Winter Street Corp., a Massachusetts
corporation having offices c/o Svenska Handlesbanken, 599 Lexington Avenue,
New York, New York 10022 (the "Seller"). There is no material relationship
between 580 Winter Street Corp. and the registrant or any of its affiliates,
any director or officer of the registrant, or any associate of any such
director or officer.
One of the most important determinations by the registrant in connection
with its decision to purchase the Property was the environmental assessment.
The Property is not completely free of all contaminants and is located near a
public drinking water supply. The registrant's decision-making process is
summarized below, and that information is qualified in its entirety by the
materials filed as exhibits hereto.
The Property is listed on the Massachusetts Department of Environmental
Protection's List of Confirmed Disposal Sites and Locations to be Inspected
("Investigation List"). The registrant has reviewed reports of environmental
engineers concerning their investigation of the Property. These reports
indicate (i) the Property was placed on the Investigation List because heating
oil contaminated soil was found on the site when a 10,000 gallon oil tank was
removed in 1987 (the heating fuel was converted to natural gas), (ii) the
storage tank was intact (iii) approximately 190 cubic yards of contaminated
soil was removed, (iv) investigation was undertaken pursuant to the
Massachusetts Contingency Plan (v) a Notice of Audit Findings/Notice of
Non-Compliance ("Notice") asserted that an initial LSP Evaluation opinion
failed to identify the applicable groundwater category for the site, (vi) The
Notice to the Seller asserted that because of the site's proximity to the
Cambridge Reservoir, the appropriate water quality standard was RCGW-1, (vii)
The Notice noted that the levels of trichloroethene and Total Petroleum
Hydrocarbons exceeded the RCGW-1 standard, (viii) The Notice required, among
other things, submission of a revised LSP Evaluation Opinion indicating that a
release subject to notification requirements occurred or may have occurred at
the subject site and that further response actions are necessary, (ix)the
Licensed Site Professional submitted a revised opinion including groundwater
category identification and analysis of the levels of fuel oil and
trichloroethene in the groundwater (x) the revised opinion concluded that the
proper water quality for the site was not RCGW-1 because, among other things,
the site was downgradient from the reservoir and groundwater from the site
does not flow into the reservoir, and (xi) the Licensed Site Professional
Response Action Outcome Statement and supporting documentation concluded that
all compounds at the site were below the applicable standards, that no
significant risk is posed by the presence of residual contamination and that
the site meets the groundwater environmental requirements applicable thereto.
Under the Massachusetts Contingency Plan, state inspection is performed
by "privatized inspectors" who become certified by the State as "Licensed Site
Professionals." Their opinions may be audited by the Department of
Environmental Protection for a period of five years from the date of filing of
the Report. According to the Licensed Site Professional interviewed by the
Registrant, specific regulations provide that sites located near wells and
water bearing aquifers used as public drinking water sources but which are
downgradient therefrom are not required to meet the RCGW-1 standard by virtue
of their proximity. At the moment no such regulations have been written to
cover the similar situation relative to reservoirs.
On the basis of its review of the foregoing materials, the registrant
has executed the Contract of Sale, which provides in part that the registrant
has examined various reports and correspondence related to this matter and is
fully satisfied with the testing, remediation, DEP disposition and
environmental conditions at the premises.
The privatization of the environmental inspection and implementation
process, the highly sensitive nature of environmental laws, the importance of
protecting the public drinking water supplies and the evolution of the
application and interpretation of regulations under the Massachusetts
Contingency Plan are but a few of the areas of uncertainty facing the
registrant in making its decision. The registrant has made the judgment to
rely on the findings of the License Site Professional--with whom the
registrant engaged in due diligence discussions at the site--that the site is
in compliance with all applicable requirements. The registrant expects that
managing environmental issues will be an ongoing aspect of its property
management activities.
The purchase price is Five Million Fifty Thousand Dollars
($5,050,000.00). Of this amount, Five Hundred Five Thousand Dollars
($505,000.00) has been paid to the escrow agent and counsel to Seller,
Sullivan & Worcester, a Registered Limited Liability Partnership and the
balance of which is due on the closing. The closing is scheduled to take
place on December 28, 1995.
The registrant expects to use some of its current assets which may
include cash, cash equivalents, and/or marketable securities to fund the
entire acquisition, renovation, refurbishment and relocation costs (expected
to be in the approximate range of $9.0 million).
The registrant expects that the cost of ownership and operation of the
building over the long term will be similar to what the registrant currently
pays for its present offices even though the new facility of approximately
80,000 s.f. will accommodate a substantial increase in the number of
employees. The registrant's lease for its current space of approximately
46,000 s.f. expires in January 1997.
The new Property is used as rental property by the Seller and as office
space by the tenants. The registrant intends to use the Property primarily as
its world-wide headquarters and to lease portions of it to tenants from time
to time. Two such tenants are leasing such space at the present time under
leases covering approximately 41,000 s.f. One lease (covering approximately
15,000 s.f.) is for a term of fifteen and one half years commencing October
1994 (with two five year options). The other lease is on its first (of two)
three year extension terms (which began in July 1995).
The operation of a facility by the registrant is a new area of endeavor
for the employees and involves the development and practice of new skills to
be done well. Additionally, the accounting treatment of owned facilities is
significantly different and dependent on variable tax laws and accounting
standards.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
The Exhibits listed on the Exhibit Index (on page 6) are
incorporated herein by reference.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BGS SYSTEMS, INC.
(Registrant)
By: /S/ C. RUSSEL HANSEN, JR.
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Vice President and General Counsel
INDEX TO EXHIBITS
10.1 Contract of Sale between BGS Systems, Inc. and 580 Winter Street Corp.
10.2 Lease between 580 Winter Street Limited Partnership, as Lessor and
Harte-Hanks Communications, Inc. d/b/a Harte-Hanks Community Newspapers,
Massachusetts, as Lessee, dated March 20, 1990.
10.3 Lease Agreement by and between 580 Winter Street Corp. and MFS Intelenet
of Massachusetts, Inc., dated October 20, 1994.
10.4 Massachusetts Department of Environmental Protection's, Notice of
Noncompliance, Notice of Audit Findings, dated October 10, 1995
10.5 Massachusetts Department of Environmental Protection's Response Action
Outcome (RAO) Statement & Downgradient Property Status Transmittal Form
10.6 Environmental Science Services' Report, Documentation Supporting
Response Action Outcome, dated October 2, 1995
EXHIBIT 10.1
CONTRACT OF SALE ("Agreement"), dated as of October 26,
1995, between 580 WINTER STREET CORP., a Massachusetts
corporation ("Seller"), having offices c/o Svenska Handelsbanken,
599 Lexington Avenue, New York, New York 10022 and BGS SYSTEMS,
INC., a Massachusetts corporation ("Purchaser") having offices
at 128 Technology Center, Waltham, Massachusetts 02254-9111.
RECITALS:
A. Seller is the owner of the land ("Land") described in
Exhibit A annexed hereto and the building and improvements
situated thereon or appurtenant thereto (collectively, the
"Improvements"; together with the Land, collectively, "Premises")
known as 580 Winter Street, Waltham, Massachusetts.
B. Seller desires to sell and Purchaser desires to
purchase the Premises on the terms and subject to the conditions
set forth in this Agreement.
AGREEMENT:
Seller and Purchaser agree as follows:
1. Certain Definitions. Whenever used in this Agreement,
the words and phrases set forth below shall have the following
meanings:
1.1 "Closing" means the closing pursuant to the terms and
conditions set forth in this Agreement, at which closing title to
the Premises shall be transferred to Purchaser.
1.2 "Contract Date" means the date on which this Agreement
is executed.
1.3 "Downpayment" shall mean the initial sum of $505,000
paid by Purchaser to Escrow Agent on account of this Agreement in
accordance with Article 3, together with any interest accrued on
such sum from time to time.
1.4 "Escrow Agent" shall mean Sullivan & Worcester, a
Registered Limited Liability Partnership, counsel to Seller.
1.5 "Improvements" has the meaning set forth in Recital A.
1.6 "Initial Notice" shall have the meaning set forth in
Section 10.1.
1.7 "Land" means the land located in Middlesex County,
Massachusetts, described by metes and bounds on Exhibit A hereto.
1.8 "Leases" means, collectively, (a) the lease, dated
March 20, 1990, by 580 Winter Street Limited Partnership ("580
LP"), as landlord, to Harte-Hanks Communications, Inc. ("HHC"),
as tenant, as amended by a First Amendment to Lease, dated
September 1, 1992, between 580 LP and HHC, as tenant, as amended
by a First Amendment to Lease, dated September 1, 1992, between
580 LP and HHC and a Second Amendment to Lease, dated October 3,
1994. betweem Seller and HHC, and (b) the lease, dated October
20, 1994, by Seller, as landlord, to MFS Intelenet of
Massachusetts, Inc., as tenant, copies of which leases have been
delivered to Purchaser for its examination prior to execution of
this Agreement.
1.9 "Permitted Encumbrances" means the matters set forth in
Section 2.2, any matters arising therefrom or relating thereto,
to the extent the same may be of force or effect or affect title
to the Premises as of the Closing Date, and such other matters as
are customarily contained in the standard exceptions from fee
title insurance coverage in the State of Massachusetts.
1.10 "Premises" means the Land and the Improvements.
1.11 "Qualified Bank" means a bank or trust company having a
banking office in the City of Boston, Massachusetts, or which is
a member of the New York Clearing House Association.
1.26 "Title Company" means any reputable title insurance
company duly licensed in the State of Massachusetts.
2. Sale of Premises; Permitted Encumbrances.
2.1 Seller shall sell and convey good, clear, record and
marketable title to the Premises to Purchaser and Purchaser shall
purchase the Premises from Seller, on the terms and subject to
the conditions set forth in this Agreement. The Premises shall
be conveyed to Purchaser free and clear of all liens and
encumbrances (other than the Permitted Encumbrances), and shall
include all of Seller's right, title and interest, if any, in and
to the following:
2.1.1 Any land lying in the bed of any street, road
or avenue opened or proposed, in front of or adjoining the
premises, to the center line thereof, and all right, title and
interest of Seller in and to any award made or to be made in lieu
thereof and in and to any unpaid award for damages to the
premises by reason of change of grade of any street and any right
of reversion.
2.1.2 All fixtures attached to the Land or
Improvements and present at the time of execution of this
Agreement and those fixtures which may be attached between the
date hereof and the Closing Date.
2.2 The Premises shall be sold and conveyed subject to the
following (collectively, the "Permitted Encumbrances"):
2.2.1 Zoning regulations and ordinances which are
not violated by existing structures or improvements or present
use therefor.
2.2.2 Consents by Seller or any former owner of the
Premises for the erection of any structure or structures on,
under or above any street or streets on which the Premises may
abut.
2.2.3 Encroachments of stoops, areas, cellar steps,
trim and cornices, lintels, window sills, awnings, canopies,
ledges, fences, coping, retaining walls and wires projecting from
the Premises over any street or highway or over any adjoining
property and encroachments of similar elements projecting from
adjoining property over the Premises.
2.2.4 Rights of telephone, electric, gas, water and
sewer and other utility companies to lay, maintain, install and
repair poles, wires, mains, lines, pipes, conduits, cable boxes,
cables and related equipment on, over, along, and under the
Premises or the streets abutting the Premises, and any such
utility service facilities running to any building or improvement
on the Premises.
2.2.5 Revocability or lack of right to maintain
vaults, coal chutes, excavations or subsurface equipment beyond
the line of the Premises.
2.2.6 Restrictive Agreement, dated October 14,
1954, recorded in the land records of the Middlesex County,
Massachusetts ("Land Records") in Deeds, Book 8364, pg. 325.
2.2.7 Restrictions in Deed by Gerald W. Blakely,
dated July 26, 1956, recorded in the Land Records in Deeds, Book
8777, pg. 524; Agreement Concerning Restrictions, dated December
20, 1960, recorded in the Land Records in Deeds, Book 9775, pg.
529; as affected by agreement, dated March 14, 1961, recorded in
the Land Records in Deeds, Book 9775, pg. 531; as further
affected by agreement, dated October 2, 1964, recorded in the
Land Records in Deeds, Book 10660, pg. 38; and any additional
covenants, agreements, licenses, easements and restrictions of
record, provided that such additional covenants, agreements,
licenses, easements, and restrictions do not prohibit the present
use of the Premises.
2.2.8 State of facts shown on a survey of the
Premises dated September 15, 1988 and last revised June 20, 1989
(the "Survey"), a copy of which has been reviewed by the
Purchaser, and any changes therefrom an accurate survey of the
Premises through the date of Closing would show, provided that no
such changes render title unmarketable.
2.2.9 The Leases.
2.2.10 Any notice of lease of a tenant no longer in
possession provided that the Title Company shall be willing to
insure against the lease being enforced against the Premises.
2.2.11 Real estate taxes and assessments and unpaid
installments of assessments, which are a lien but not yet due and
payable on the Closing Date.
2.2.12 Financing statements, chattel mortgages and
liens on personalty filed more than five (5) years prior to the
Closing Date and not renewed, or filed against property or
equipment no longer located on the Premises or owned by tenants.
2.2.13 Rights of utility companies to lay, maintain,
install and repair pipes, lines, poles, conduits, cable boxes and
related equipment on, over and under the Premises, provided that
none of such rights imposes any monetary obligation on the owner
of the Premises.
3. Purchase Price
3.1 The purchase price ("Purchase Price") is FIVE MILLION
FIFTY THOUSAND DOLLARS and is payable by Purchaser to Seller as follows:
3.1.1 FIVE HUNDRED FIVE THOUSAND DOLLARS
by delivery on or before execution of this Agreement of Purchaser's check,
subject to collection (together with any interest accrued on such deposit
from time to time, the"Downpayment"), payable to the order of Escrow Agent,
as payee to be held by Escrow Agent in accordance with the escrow provisions
set forth in Article 16; and
3.1.2 FOUR MILLION FIVE HUNDRED FORTY-FIVE THOUSAND
DOLLARS at Closing, subject to adjustment in accordance with Article 8.
3.2 At Closing, any interest earned on the Downpayment
shall be paid to the party entitled to the Downpayment.
3.3 All amounts payable at Closing shall be paid by (i)
unendorsed certified checks of Purchaser or any person making a
purchase money loan to Purchaser drawn on a Qualified Bank to the
order of Seller, or (ii) unendorsed official bank checks drawn by
any Qualified Bank to the order of Seller. At the option of
either Purchaser or Seller, all or any part of the amounts
payable at Closing shall be paid by a wire transfer of Federal
Funds for same day value to an account or accounts designated by
Seller.
3.4 If any instrument for the payment of the Downpayment
fails of collection, Seller shall have the right to sue on the
uncollected instrument. In addition, such failure of collection
shall be a default under this Agreement, provided Seller gives
Purchaser notice of such failure of collection and, within three
(3) days after such notice, Escrowee does not receive from
Purchaser an unendorsed certified check, bank check or
immediately available funds in the amount of the uncollected
funds. Failure to cure such default shall entitle Seller to the
remedy set forth in the case of default by Purchaser and to
retain all sums as may be collected and/or recovered. Time shall
be of the essence with respect to the time periods set forth in
this Section.
4. Physical Condition; Personal Property; Operating
Pending Closing.
4.1 Purchaser has made such examination of the operation,
income, expenses and physical condition of the Premises and the
legal, zoning, land use, environmental, toxic and hazardous
materials, water and sewer availability, development potential,
reclamation and other matters affecting or relating to this
transaction as Purchaser deemed necessary or as were required by
law, rule, regulation or otherwise or Purchaser has waived such
examination. In entering into this Agreement, Purchaser has not
been induced by and has not relied upon any representations,
warranties, guarantees or promises, whether express or implied,
made by Seller or any agent, employee or other representative of
Seller or by any broker or any other person representing or
purporting to represent Seller, which are not expressly set forth
in this Agreement, whether or not any such representations,
warranties, guarantees, promises, or statements were made in
writing or orally. Purchaser confirms that it has examined a
current environmental inspection report of the Premises prepared
by Environmental Science Services ("ESS"), and the correspondence
of Seller and ESS with the Massachusetts Department of
Environmental Protection ("DEP") concerning the conditions
described in such examination, and that Seller has afforded
Purchaser full opportunity to examine the premises and discuss
such matters with ESS. Purchaser is fully satisfied with the
testing, remediation, DEP disposition and environmental
conditions at the Premises.
4.2 The sale under this Agreement includes the following
fixtures and articles of personal property, to the extent
presently existing at the Premises and owned by Seller: heating,
ventilating and air conditioning equipment, plumbing and
electrical equipment and fixtures, carpets and other floor
coverings, curtains, drapes, blinds and related window
treatments, partitions, fire safety devices, and fire protection
and burglar alarm equipment.
4.3 Between the date of this Agreement and Closing, Seller
shall not enter into any new lease affecting the premises, or
modify or amend any existing lease, provided that Seller shall
have the right to comply with and enforce the terms of any
existing Lease, to waive default by the tenant thereunder or to
exercise any rights and remedies of the Landlord thereunder,
including the right to terminate the Lease for default of the
tenant thereunder. Seller shall have no obligation to extend the
term of any existing Lease.
5. Casualty and Eminent Domain
5.1 Seller is responsible for any damage to the Premises,
other than for ordinary use, wear, tear and natural
deterioration, until the Closing. If the Premises are damaged by
fire, vandalism, storm, flood or any other casualty between the
date of this Agreement and Closing, Seller shall promptly notify
Purchaser and the parties shall obtain an estimate of the cost of
repairing the damage from an unaffiliated contractor of their
mutual choice. If the estimated cost is less than $50,000 Seller
shall repair the damage at Seller's expense, the Closing shall
take place as provided herein and Seller shall be entitled to
receive all insurance proceeds as a result of the casualty. If
the estimated cost is more than $50,000, Seller shall forthwith
proceed to commence and complete the necessary repairs and the
Closing shall take place as provided herein; provided, however,
that if Seller has not commenced such repairs as of the scheduled
date of Closing or the repairs are reasonably estimated to take
more than four months after the Closing to complete, then, at
Purchaser's option, the Closing shall be delayed until the work
is completed, or if the Closing shall occur, the Purchase Price
shall be reduced by an amount equal to the deductible on Seller's
insurance policy, and there shall be assigned to Purchaser at the
Closing, all of Seller's right, title and interest in and to the
remaining insurance proceeds to the extent such proceeds relate
to restoration and repair of the Premises to be conveyed
hereunder, net of such sums as have reasonably been expended by
Seller on such repairs. In addition, at Closing, Seller shall
assign to Purchaser and Purchaser shall assume all construction
contracts for such repair and restoration, to the extent such
contracts are assignable and relate to the Premises to be
conveyed hereunder. If, for any reason, insurance proceeds are
not received on account of the damage or destruction, the parties
shall agree upon the amount necessary to repair the damage, and
such amount shall be credited against the Purchase Price. In
addition, if Seller's mortgagee does not release all or a portion
of such insurance proceeds, Seller shall credit against the
Purchase Price the amount of such proceeds withheld to the extent
that such proceeds relate to restoration and repair of the
Premises to be conveyed hereunder.
5.2 If prior to Closing there shall be a taking of all or
any portion of the Premises by a governmental or other public
authority by eminent domain, condemnation or otherwise
(collectively "Condemnation") which shall prevent continued use
of the premises (to include a loss of all access of the remaining
portion of the Premises to a public highway or street) for
substantially the same purposes and substantially in the same
manner to substantially the same extent as prior to Closing (a
"Total Condemnation"), Purchaser shall either:
5.2.1 Accept title to the premises pursuant to the
terms of this Agreement upon payment of the full Purchase Price
without any credit against or abatement of the Purchase Price by
reason of the Condemnation (except as hereinafter provided), but
with an assignment by Seller (without recourse or warranty) of
Seller's right, title and interest as owner of the Premises in
the award or awards resulting from the condemnation and in the
proceeds thereof, and Seller shall deliver to Purchaser at
Closing any such proceeds received by Seller; provided, however,
that if any such Condemnation award is payable to the holder of
any mortgage or other lien on the Premises, then the Purchase
Price shall be reduced by the amount of such Condemnation award
payable to such mortgagee; or
5.2.2. Terminate this Agreement, and upon such
election, Seller shall return any amounts theretofore paid on
account of the Purchase Price with any interest earned thereon,
and Seller and Purchaser shall be released and discharged from
any and all further liability and obligation under this
Agreement.
5.3 If, prior to Closing, there shall be a Condemnation
other than a Total Condemnation, Seller shall assign and pay over
to Purchaser at Closing the entire proceeds of the payment by the
condemning authority and any right to receive the same and title
shall pass to Purchaser at Closing; provided, however, that if
any such Condemnation award has been paid to the holder of any
mortgage or any other lien on the Premises, then the Purchase
Price shall be reduced by the amount of such Condemnation award
payable to such mortgagee.
5.4 The provisions of this Article shall survive the
Closing and are in lieu of the provisions of any otherwise
applicable statute.
6. Representations and Covenants of Parties.
6.1 Seller makes the following representations:
6.1.1 Seller is a corporation duly organized,
validly existing and in good standing under the laws of the state
of Massachusetts.
6.1.2 Seller has full power, authority and
legal right to execute and deliver this Agreement and the
documents contemplated hereunder to be delivered by it and to
perform and observe the terms and provisions of this Agreement
and such other documents on its part to be performed or observed.
6.1.3 The execution and delivery by Seller of
this Agreement and all the other documents contemplated to be
delivered by it hereunder, and the performance and observance by
it of the terms of this Agreement and the other documents and
instruments on its part to be performed or observed, have been
duly authorized by all necessary action (corporate or otherwise),
including without limitation, all necessary administrative and
other governmental action, and do not contravene (i) any law,
rule, regulation, order, writ, judgment, award, injunction or
similar legal restriction applicable to Seller, (ii) any
contractual restriction which binds or affects or purports to
bind or affect Seller, or (iii) its certificate of incorporation
or by-laws.
6.1.4 There are no leases of all or any
portion of the Premises other than the Leases. The Leases have
not been amended except as set forth in the definition of
"Leases."
6.1.5 No brokerage, leasing or other
commissions are due with respect to any Lease. There are no
alterations, improvements or other work required to be performed
by Seller as landlord under any lease which have not been
completed and paid for in full. Seller is not in material
default of any obligation of the landlord under any lease.
6.1.6 This Agreement has been duly executed
and delivered by Seller and is, and the other documents
contemplated hereunder when executed and delivered by it
hereunder will be, the legal, valid and binding obligations of
Seller enforceable against Seller in accordance with their terms.
6.1.7 Exhibit B attached hereto constitutes a
complete list of any service contracts (collectively, the
"Service Contracts") now affecting the Premises.
6.1.8 All fixtures, equipment and articles of
personal property included in this sale will, at Closing, be
owned by Seller free from all liens and encumbrances other than
the Permitted Encumbrances.
6.2 Purchaser makes the following representations:
6.2.1 Purchaser is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Massachusetts.
6.2.2 Purchaser has full power, authority and
legal right to execute and deliver this Agreement and the
documents contemplated hereunder to be delivered by it and to
perform and observe the terms and provisions of this Agreement
and of such other documents on its part to be performed or
observed.
6.2.3 The execution and delivery by Purchaser
of this Agreement and all the other documents contemplated to be
delivered by it hereunder and the performance and observance by
it of the terms of this Agreement and the other documents and
instruments on its part to be performed or observed, have been
duly authorized by all necessary action (corporate or otherwise),
including, without limitation, all necessary administrative and
other governmental action and do not contravene (i) any law,
rule, regulation, order, writ, judgment, award, injunction or
similar legal restriction applicable to Purchaser, (ii) any
contractual restriction which binds or affects or purports to
bind or affect Purchaser or (iii) its certificate of
incorporation or by-laws.
6.2.4 This Agreement has been duly executed
and delivered by Purchaser and is, and the other documents
contemplated hereunder when executed and delivered by it
hereunder will be, the legal, valid and binding obligations of
Purchaser enforceable against Purchaser in accordance with their
terms.
6.2.5 Purchaser has inspected the Premises and
is fully familiar with its physical condition and state of
repair, and except as may otherwise be expressly set forth in
this Agreement, shall accept the Premises "as is" and in its
present condition, subject to Seller's express obligations under
this Agreement, and subject to reasonable use, wear, tear and
natural deterioration between now and Closing, without any
reduction in the Purchase Price for any change in such condition
by reason thereof subsequent to the date of this Agreement.
6.2.6 Purchaser has made such examination of
the operation, income and expenses of the Premises and all other
matters affecting or relating to this transaction as Purchaser
deemed necessary. In entering into this Agreement, Purchaser has
not been induced by and has not relied upon any representations,
warranties, guarantees or promises, whether express or implied,
made by Seller or any agent, employee or other representative of
Seller or by any broker or any other person representing or
purporting to represent Seller, which are not expressly set forth
in this Agreement, whether or not any such representations,
warranties, guarantees, promises, or statements were made in
writing or orally.
6.3 The representations contained in Sections 6.1.4
and 6.1.5 shall survive the Closing for a period of six (6)
months.
6.4 Seller covenants to terminate the Service
Contracts on or prior to the Closing Date.
6.5 The representations, warranties, covenants,
indemnities and agreements of Seller and Purchaser contained in
this Agreement or contained in any certificate or document
delivered in connection with the Closing by or on behalf of the
Purchaser or the Seller, shall not survive the Closing under this
Agreement unless specifically stated to survive in this Agreement
or unless, pursuant to this Agreement or such certificate or
document in which it is contained, such covenant or agreement is
to be performed after the Closing Date. Purchaser's sole remedy
for any breach of any representation or warranty of Seller known
to Purchaser prior to Closing shall be to terminate this
Agreement and to be reimbursed for the actual cost for Buyer's
title examination and survey inspection and the Downpayment, if
made, and all other remedies are waived by Purchaser; and such
known breach shall not survive the Closing.
7. Litigation; Plans; Maintenance.
7.1 Seller represents that there is no pending litigation
related to the Premises by or against Seller. To Seller's best
knowledge, no litigation is threatened against Seller with
respect to the Premises nor is there any actual or threatened
condemnation of the Premises. Seller further represents that
there are no presently pending applications or appeals for
reduction of assessments or real estate taxes.
7.2 At Closing, Seller will deliver to Purchaser all
existing plans and specifications for the Improvements and any
permits and licenses assigned to Purchaser hereunder, to the
extent such items are in the possession of Seller.
7.3 If mechanic's or materialman's liens are filed against
the Premises prior to Closing for materials, labor or other
services alleged to have been delivered to or performed at the
request of Seller, Seller shall discharge or satisfy such liens
at or prior to Closing, or deliver such assurances to Purchaser's
Title Company as may be required to permit the issuance of title
insurance to Purchaser either free of any such liens or with
insurance against enforcement of same out of the Premises.
7.4 The sole obligation of Seller with respect to the
physical condition of the Premises until Closing shall be to
maintain the Premises in its present condition, and in compliance
with all applicable laws, rules, regulations and ordinances
subject to reasonable use, wear, tear and natural deterioration.
8. Adjustments
8.1 The following shall be apportioned between Seller and
Purchaser as of the midnight prior to the Closing Date and net
thereof in favor of Seller or Purchaser ("Net Adjustment") shall
be paid by Purchaser or credited against the Purchase Price, as
the case may be:
8.1.1 Permit and license fees of assignable permits
and licenses, if any, and inspection charges.
8.1.2 Utility charges, based on the most recent
available meter readings, if final readings cannot be obtained as
of the Closing Date, any unfixed utility charges based thereon
for the intervening period shall be apportioned on the basis of
such reading.
8.1.3 value of fuel oil stored on the Premises, at
the price then charged by Seller's supplier, including any taxes;
8.1.4 prepaid rents;
8.1.5 permitted administrative charges, if any, on
tenants' security deposits;
8.1.6 Real estate taxes on the basis of the fiscal
year for which assessed. If the tax for the fiscal year in which
the Closing occurs has not been fixed as of the Closing Date,
then the apportionment thereof shall be based on the tax rate for
the next preceding year applied to the latest assessed valuation,
and the same shall be readjusted after Closing based upon the
actual taxes.
8.1.7 Seller shall be entitled to any and all real
estate tax savings or refunds for the tax fiscal years ending
prior to the Closing Date. If any proceeding for reduction of
the assessed valuation of the Premises has been or is hereafter
filed affecting a tax period containing any period prior to the
Closing Date, the net tax savings for such period shall be
apportioned as of the Closing Date. If such proceeding was
commenced by Seller, it shall be continued by Seller's attorney
whose charges, fees and disbursements shall be paid pro rata by
the parties. If, after the Closing Date, Purchaser receives any
such tax savings as a credit against taxes payable in a
subsequent tax period in lieu of a refund, Purchaser shall
promptly pay to Seller the pro-rata share of the net tax savings
to which Seller is entitled. If any such tax savings received by
Purchaser result from any proceedings commenced by Purchaser,
Purchaser's attorneys charges, fees and disbursements shall be
paid pro rata by the parties.
8.1.8 Water and sewer charges, based on the most
recent available meter readings, any unfixed meter charge and any
unfixed sewer rent based thereon for the intervening period,
shall be apportioned on the basis of such reading.
8.1.9 wages, of all persons employed at the
Premises whose employment was not terminated at or prior to the
Closing.
8.1.10 municipal license charges, if any.
8.1.11 management fees of the managing agent of the
Premises, unless such managing agent's employment is terminated
at or prior to the Closing.
8.1.12 Assessments, in accordance with the
provisions of Section 8.5.
8.1.13 Payments required under any service contracts
not cancelled at or before Closing.
8.2 Any errors or omissions made in computing
apportionments at Closing shall be corrected. The provisions of
this Article 8 shall survive Closing.
8.3 If any tenant is in arrears in the payment of rent on
the Closing Date, rents received from such tenant after the
Closing shall be applied in the following order of priority; (a)
first to the month preceding the month in which the Closing
occurred; (b) then to the month in which the Closing occurred;
(c) then to any month or months following the month in which the
Closing occurred; and (d) then to the period prior to the month
preceding the month in which the Closing occurred. If rents or
any portion thereof received by Seller or Purchaser after the
Closing are payable to the other party by reason of this
allocation, the appropriate sum, less a proportionate share of
any reasonable attorneys' fees, costs and expenses of collection
thereof, shall be promptly paid to the other party, which
obligation shall survive the Closing.
8.4 At Closing, certified or official bank checks payable
to the order of the appropriate State, City or County officer in
the amount of any applicable Massachusetts Realty Transfer Tax
and any other applicable excise, transfer and/or recording tax
payable by reason of the delivery or recording of the deed shall
be delivered by the party required by law or by this Agreement to
pay such excise, transfer and/or recording tax, together with any
required tax returns or affidavits duly executed and sworn to,
and such party shall cause any such checks and returns to be
delivered to the appropriate officer promptly after Closing. The
obligation to pay any additional tax or deficiency and any
interest or penalties thereon shall survive Closing. At
Seller's option, Purchaser shall pay on Seller's behalf any such
tax imposed in the first instance on Seller and receive a credit
against the Purchase Price.
8.4.1 If at the Closing Date, there may be any
other liens or encumbrances which Seller is obligated to pay and
discharge, including any outstanding mortgages, Seller may use
any portion of the balance of the Purchase Price to satisfy the
same, provided Seller shall simultaneously either deliver to
Purchaser title instruments in recordable form and sufficient to
satisfy such liens and encumbrances of record together with the
cost of recording or filing said instruments, or deposit with the
Title Company sufficient monies, acceptable to and required by it
to insure obtaining and the recording of such satisfactions and
the issuance of title insurance to Purchaser either free of any
such liens and encumbrances, or with insurance against
enforcement of same out of the Premises. If requested at least
one (1) day prior to Closing, Purchaser agrees to provide at
Closing separate certified or cashier's checks or wire transfers
of Federal Funds for same day value as requested, aggregating not
more than the amount of the balance of the Purchase Price to
facilitate the satisfaction of any such liens or encumbrances.
The existence of any such taxes or other liens and encumbrances
shall not be deemed objections to title if Seller shall comply
with the foregoing requirements.
8.5 If, at Closing the Premises or any part thereof are
subject to any assessment or assessments for municipal
improvements (each, an "Assessment") which are or may become
payable in annual installments, the first installment of which is
than a charge or lien or has been paid, any installment payable
for the year in which the Closing takes place shall be adjusted
at the Closing, and Purchaser shall assume the obligation to pay
the unpaid installments of such Assessment which are to become
due and payable after Closing.
9. Closing.
9.1 The Closing shall take place at 10:00 a.m. on December
28, 1995 (the "Closing Date"), or on such other date set by
agreement between the parties. The Closing shall be held at the
offices of purchaser's attorneys, Peabody & Brown, 101 Federal
Street, Boston, Massachusetts. Any agreement setting or
adjourning the date set for the Closing may be made in a writing
signed by the parties' attorneys.
9.2 The deed shall be a good and sufficient quitclaim deed
in proper form for recording and shall be duly executed and
acknowledged so as to convey to Purchaser good, clear, record and
marketable title to the Premises, free of all encumbrances except
the Permitted Encumbrances. Seller will deliver to Purchaser the
following additional documents at Closing:
9.2.1 Any required transfer tax returns,
certificates and affidavits required by governmental authorities
in connection with this transaction, executed by Seller.
9.2.2 A resolution of Seller's Board of Directors
authorizing the sale and delivery of the deed and a certificate
by its Secretary or Assistant Secretary certifying such
resolution.
9.2.3 An affidavit of title verified by one of
Seller's officers certifying to any facts reasonably required by
the Title Company in order to certify title as required
hereunder.
9.2.4 A non-foreign person affidavit in accordance
with the Foreign Investment in Real Property Tax Act of 1980 as
amended by the Tax Reform Act of 1984.
9.2.5 Certificates or telegrams from the Secretary
of State of Massachusetts stating that Seller is in good
standing, dated after the date of this Agreement.
9.2.6 An assignment of the Leases and any security
deposits held thereunder, effective the Closing Date, together
with delivery of any original guaranty of a Lease then held by
Seller.
9.2.7 An assignment of any and all service
agreements and equipment guarantees and warranties, if any,
relating solely to the property sold to Purchaser hereunder,
which assignment shall state that it is without representation,
warranty or recourse.
9.2.8 An estoppel certificate or pay-off letter
from the holder of any mortgage against the Premises, which shall
state the amount required to either pay such mortgage in full or
to obtain a release of the lien thereof on the premises, or an
executed satisfaction of mortgage in statutory form for recording
from the holder of any such mortgage.
9.2.9 A bill of sale for any personal property
located in the Premises, which bill of sale shall state that the
personal property is sold "as is", and that such sale is without
representation, warranty or recourse.
9.2.10 Estoppel letters, in the form annexed as
Exhibit C, from each tenant under a Lease, dated no earlier than
forty-five (45) days prior to Closing, provided that if any
estoppel letter shall not be obtained from any such tenant after
diligent effort by Seller, Seller may deliver in its place a
certificate by Seller setting forth the same matters and stating
that Seller has no reason to believe that an estoppel letter, if
given, would have disclosed any material defaults.
9.2.11 A letter by Seller to the tenants under the
Leases informing them of the conveyance and the address
designated by Purchaser for the payment of future rents and
delivery of future communications under the Lease.
9.2.12 Copies of al current real estate tax and
utility bills, or if unpaid, then the original bills.
9.3 At Closing, Purchaser will deliver the following to
Seller:
9.3.1 Checks or the appropriate wire transfers in
payment of the Purchase Price, as provided in this Agreement.
9.3.2 Any required transfer tax returns,
certificates and affidavits required by governmental authorities
in connection with this transaction executed by Purchaser.
9.3.3 An acceptance of assignment and assumption of
the Leases, and receipt for security deposits thereunder,
effective from and after the Closing Date.
9.3.4 The agreement of Broker to release Seller
from any obligation for any brokerage fees or other compensation
due in connection with this transaction.
9.4 The parties shall also execute such documents and make
such payments as are required pursuant to this Agreement at the
Closing Date, and shall perform or cause to be performed such
other acts as shall be required to effectuate the Closing, all
subject to and in accordance with the terms and provisions of
this Agreement.
10. Objections to Title; Default.
10.1 Upon receipt of an executed counterpart of this
Agreement, Purchaser will promptly order a title commitment from
a Title Company and promptly after such commitment is received
shall deliver a copy to Seller's attorney. If there shall be
any objection to title, Purchaser shall, not later than thirty
(30) days prior to Closing, provide Seller with a Notice (as
hereinafter defined) identifying such objection and specifying
the nature thereof ("Initial Notice"). Thereafter, Purchaser may
give Seller written Notice of objections to title arising after
the date of the Initial Notice, but shall have waived objection
to matters disclosed by the Title Company prior to such date. If
no Notice of objections is timely given by Purchaser, Purchaser
shall accept title subject to any objections which may then
affect the Premises. Seller shall be entitled to an adjournment
or adjournments of Closing for up to ninety (90) days to remove
any objection to title.
10.2 If Seller shall be unable to convey title to the
Premises in accordance with the provisions of this Agreement, or
if Purchaser has other valid grounds for refusing to close,
whether by reason of liens, encumbrances or other objections to
title or otherwise, other than those subject to which Purchaser
is obligated to accept title hereunder, or if any of Seller's
representations or warranties shall not be true, or if Seller is
otherwise unable to comply with this Agreement for any reason
other than Seller's willful default (such matters, collectively
"Title Defects"), the sole remedy of Purchaser shall be to
terminate this Agreement and the sole liability of Seller shall
be to return or cause Escrow Agent to return the Downpayment to
Purchaser. Upon such refund and reimbursement, this Agreement
shall be null and void and the parties shall be relieved of all
further obligations and liability other than any liability
arising under Article 11. Seller shall not be required to bring
any action or proceeding or incur any expense to cure any Title
Defect or to enable Seller otherwise to comply with the
provisions of this Agreement, except that Seller shall discharge
any mortgage, monetary judgment or other lien in a liquidated
amount encumbering the premises.
10.3 Seller shall give and Purchaser shall accept such title
as the Title Company or another reputable title insurance company
licensed in the State of Massachusetts will be willing to insure
in accordance with the standard form of fee title insurance
policy approved by the regulatory authorities of the State of
Massachusetts, subject only to the Permitted Encumbrances.
10.4 Any unpaid water charges, sewer rents or other similar
charges, together with any interests and penalties thereon, and
any other liens or encumbrances that relate to the Premises and
which Seller is obligated to pay and discharge or which are
against corporations, estates or other persons in the chain of
title, together with the cost of recording or filing any
instruments necessary to discharge such liens or encumbrances of
record, may be paid out of the funds to be delivered by Purchaser
at Closing in payment of the Purchase Price. Upon request of
Seller, Purchaser shall provide at Closing separate checks for
the foregoing payable to the order of such persons as Seller
shall designate.
10.5 Purchaser shall take title subject to all notes or
notices of violations of law or municipal ordinances, orders or
requirements noted or issued by any governmental department
having authority as to lands, housing, buildings, fire, streets,
health, environmental and labor conditions affecting the
Premises. Seller shall furnish Purchaser with any authorizations
necessary to make the searches that could easily disclose these
matters.
10.6 Any transfer, franchise, license or other similar taxes
or liens on the Premises shall not be deemed an objection to
title if the Title Company issues or binds itself to issue its
fee owner's policy insuring Purchaser against collection of such
taxes or lien out of the Premises.
10.7 Notwithstanding any other provision of this Agreement,
Purchaser shall have the option to waive Purchaser's objections
to all Title Defects and accept the Premises in its then present
condition with such title and performance as Seller can deliver
and to pay therefor the Purchase Price, without reduction or
abatement, provided that, if the Premises have been damaged by
fire or other casualty, Seller shall deliver and assign to
Purchaser any and all recovery and right of recovery under
existing policies of insurance covering such casualty.
10.8 Seller and Purchaser agree that if the Closing shall
not occur as and when provided hereby due to the failure by
Purchaser to perform, satisfy or comply with any of the
obligations, provisions, terms, agreements or conditions of this
Agreement to be performed, satisfied or complied with by
Purchaser, Seller as its sole and exclusive remedy shall be
entitled to receive and retain the Downpayment and all other
amounts, if any, paid by Purchaser on account of the Purchase
Price or otherwise, including the interest accrued thereon, as
and for liquidated damages, which liquidated damages the parties
presently contemplate as being fair and reasonable under the
circumstances described in this Section. As a special inducement
for the execution hereof by Seller, Purchaser covenants that it
shall not contest the amount of such liquidated damages or seek
the return of any such payments to or for the account of
Purchaser, or seek to prevent or delay payment to Seller of any
such payments. Upon receipt of such liquidated damages by
Seller, neither party shall have any further rights hereunder or
otherwise against the other, except as set forth in Article 11.
11. Broker. Seller and Purchaser each represent and
warrant that neither has dealt with any broker in connection with
the transaction contemplated by this Agreement other than
Whittier Partners ("Broker"). Purchaser agrees to pay Broker any
commission or other compensation due Broker in connection with
this transaction pursuant to Purchaser's separate agreement with
Broker. Each party shall indemnify and hold harmless the other
from and against any costs, claims or expenses, including,
without limitation, attorneys' fees arising out of the breach by
such party of its representation, warranty and agreement
contained in this Article. The provisions of this Article shall
survive Closing and any termination of this Agreement.
12. Integrated Contract. It is understood and agreed that
all prior understandings and agreements between Seller and
Purchaser are merged in this Agreement, which alone fully and
completely expresses their agreement, and that the same is
entered into after full investigation, neither party relying upon
any statement, representation or covenant not embodied in this
Agreement.
13. No Memorandum of Contract of Sale. The parties shall
not record this Agreement or any memorandum of this Agreement in
the Land Records.
14. Notices. Any notice, election, report, demand,
direction or other communication (each, a "notice") authorized or
required to be given or furnished shall be deemed given or
furnished (i) when addressed to the party intended to receive the
same, at the address of such party as set forth below, and
delivered at such address or (ii) three (3) days after the same
is deposited in the United States mail as first class certified
mail, return receipt requested, postage paid or (iii) when
delivered by overnight nationwide commercial courier service, one
(1) business day after the date of delivery of such notice to the
courier service or (iv) when transmitted by telecopy to the
telecopier number set forth below, to the party intended to
receive same, provided that such transmission is confirmed by
duplicate notice in such other manner as permitted above, upon
receipt at such telecopier number:
(a) if to Seller:
580 Winter Street Corp.
c/o Svenska Handelsbanken
599 Lexington Avenue
New York, NY 10022
Attention: Harry Roberts
Telecopy No.: (212) 326-5100
Telephone No.: (212) 326-2725
with a copy to:
Sullivan & Worcester
767 Third Avenue
New York, NY 10017
Attention: Charles Dubroff and Steve M. Bederman
Telecopy No.: (212) 758-2151
Telephone No.: (212) 486-8200
(b) if to Purchaser:
BGS Systems, Inc.
128 Technology Center
Waltham, Massachusetts 02254-9111
Attention: C. Russel Hansen, Jr.
Telecopy No.: (617) 890-0000
Telephone No.: (617) 891-0000
with a copy to:
Peabody & Brown
101 Federal Street
Boston, Massachusetts 02110
Attention: William A. Kuncik
Telecopy No.: (617) 345-1000
Telephone No.: (617) 345-1300
Any party may change the address to which any such notice,
report, demand or other instrument is to be delivered or mailed,
by furnishing written notice of such change to the other parties,
but no such notice of change shall be effective unless and until
received by such other parties. Rejection or refusal to accept
or inability to deliver because of changed address, or because no
notice of changed address was given, shall be deemed to be
receipt of any such notice.
15. Miscellaneous.
15.1 This Agreement may be modified only by an agreement in
writing signed by Seller and Purchaser, and no provision or
condition herein may be waived other than by a writing signed by
the party waiving such provision or condition.
15.2 This Agreement shall be binding upon and inure to the
benefit of the heirs, executors, administrators, successors and
assigns of Seller and Purchaser.
15.3 Article and Section headings in this Agreement are for
the sole purpose of convenient reference and in no way define,
limit or prescribe the scope or intent of this Agreement or any
part thereof, and such headings shall not be considered in
interpreting or construing this Agreement.
15.4 Neither party may assign this Agreement or its rights
hereunder without the other party's consent in writing.
Purchaser shall be entitled to assign this Agreement to a wholly
owned special purpose subsidiary of Purchaser on the Closing Date
and direct that the deed and other conveyance documents be
conveyed to such subsidiary, provided, that Purchaser shall give
no less than ten (10) business days' prior written notice to
Seller specifying the name, address and situs of incorporation of
such subsidiary receiving the deed and shall provide to Seller at
Closing an original counterpart of the assignment between
Purchaser and the subsidiary.
15.5 This Agreement, together with the exhibits hereto,
constitutes the entire agreement of the parties regarding the
subject matter of this Agreement and all prior or contemporaneous
agreements, understandings, representations and statements, oral
or written, are hereby merged herein.
15.6 This Agreement (but not any informational Exhibits
hereto) shall not be construed more strictly against one party
than against the other, merely by virtue of the fact that it may
have been prepared by counsel for one of the parties, it being
recognized both Purchaser and Seller have contributed
substantially and materially to the preparation of this
Agreement.
15.7 This Agreement and the documents contemplated hereunder
shall be governed by, and construed in accordance with the laws
of the State of Massachusetts.
15.8 This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall
be deemed an original, but such counterparts together shall
constitute but one and the same instrument.
16. Escrow Provisions.
16.1 Escrow Agent shall hold the Downpayment for Seller's
account in escrow in its master escrow account at The Bank of New
York, 360 Park Avenue, New York, New York, until Closing or
sooner termination of this Agreement and shall pay over or apply
the Downpayment in accordance with the terms of this Article.
Escrow Agent shall hold the Downpayment in an interest-bearing
account for the benefit of the parties. Any interest received
shall be paid (a) to Purchaser, if the Closing shall take place
pursuant to this Agreement, or (b) in any other instance to the
party entitled to the Downpayment. The party receiving the
interest shall pay any income taxes thereon. The Social Security
or Federal Tax Identification numbers of the parties shall be
furnished to Escrow Agent upon request. At Closing, the
Downpayment shall be paid by Escrow Agent to Seller. If for any
reason Closing does not occur and either party gives Notice to
Escrow Agent demanding payment of the Downpayment, Escrow Agent
shall give prompt Notice to the other party of such demand. If
Escrow Agent does not receive Notice of objection from such other
party to the proposed payment within 5 days after the giving of
such Notice, Escrow Agent is hereby authorized and directed to
make such payment. If Escrow Agent does receive such Notice of
objection within such 5 day period or if for any other reason,
Escrow Agent in good faith shall elect not to make such payment,
Escrow Agent shall continue to hold such amount until otherwise
directed by Notice from the parties to this Agreement or a final,
nonappealable judgment, order or decree of a court. However,
Escrow Agent shall have the right at any time to deposit the
Downpayment and the interest thereon with the clerk of a court in
the County in which the Premises are located and shall give
Notice of such deposit to Seller and Purchaser. Upon such
deposit or other disbursement in accordance with the terms of
this Article, Escrow Agent shall be relieved and discharged of
all further obligations and responsibilities hereunder.
16.2 The parties acknowledge that, although Escrow Agent is
holding the Downpayment for Seller's account, for all other
purposes Escrow Agent is acting solely as a stakeholder at their
request and for their convenience and that Escrow Agent shall not
be liable to either party for any act or omission on its part
unless taken or suffered in bad faith or in willful disregard of
this Agreement. Seller and Purchaser jointly and severally agree
to defend, indemnify and hold Escrow Agent harmless from and
against all costs, claims and expenses (including reasonable
attorneys' fees) incurred in connection with the performance of
Escrow Agent's duties hereunder, except with respect to actions
or omissions taken or suffered by Escrow Agent in bad faith or in
willful disregard of this Agreement.
16.3 Escrow Agent may act or refrain from acting in respect
of any matter referred to herein in full reliance upon and with
the advice of counsel which may be selected by it (including any
member of its firm) and shall be fully protected in so acting or
refraining from action upon the advice of such counsel.
16.4 Escrow Agent acknowledges receipt of the Downpayment by
check subject to collection and Escrow Agent's agreement to the
provisions of this Article by signing in the place indicated on
this signature page of this Agreement.
16.5 Escrow Agent or any member of its firm shall be
permitted to act as counsel for Seller in any dispute as to the
disbursement of the Downpayment or any other dispute between the
parties whether or not Escrow Agent is in possession of the
Downpayment and continues to act as Escrow Agent.
IN WITNESS WHEREOF, this Agreement has been duly executed by
Seller and Purchaser as of the day and year first above written.
580 WINTER STREET CORP., Seller
By: /s/ CHARLES DUBROFF
-----------------------------------
Name: Charles Dubroff
Office: Director
Tax ID No. 04-3197748
BGS SYSTEMS, INC., Purchaser
By: /s/ JAMES S. MCGUIRE
-----------------------------------
- ------- James S. McGuire
Chief Operating Officer
Tax ID No. 04-2559993
Receipt on November 1, 1995, of the $505,000.00 Downpayment (if
by check, subject to collection) is acknowledged and the
undersigned agrees to act in accordance with the provisions of
Article 16:
SULLIVAN & WORCESTER, A REGISTERED
LIMITED LIABILITY PARTNERSHIP
By: /s/ CHARLES DUBROFF
- ----------------------------------------------------------
a member
EXHIBIT A
The Land
The land referred to in this Agreement is the land at Winter
Street, West Street and First Avenue, Waltham, Middlesex County,
Massachusetts, more particularly bounded and described as
follows:
Westerly by West Street by four lines measuring
respectively 40.25 feet, 59.78 feet, 131.95 feet and 82.81 feet;
Northerly by land formerly of Griggs shown as Lot 10A on a
Plan dated July 23, 1960 by Raymond C. Pressey, Inc.,
Registered Land Surveyors, recorded with said Deeds, Book 9735 End, 207.12
feet;
Westerly again, by the same land, 403.81 feet;
Northerly again, by the new line of Winter Street, 245.5
feet;
Northeasterly by a curved line forming the Southwesterly
Junction of Winter Street and First Avenue, 80.95
feet;
Easterly by the Westerly line of First Avenue, 385.74 feet;
Southerly by land now or late of Crucible Center Company,
295 feet
Easterly again, by the same land, 255.27 feet; and
Southerly again, by Lot 6 as shown on a Plan dated February
1958 duly recorded in Book 9111, Page 385, 200 feet.
<PAGE>
EXHIBIT B
Service Contracts
EXHIBIT C
Form of Tenant Estoppel
The undersigned, having the power and authority to do
so, certifies as follows to all persons to whom this
statement may be presented:
1. The undersigned, (the
"Tenant") is the tenant under a lease, dated 199 ,
between , as landlord, and Tenant,
as tenant (including any amendments listed below, the
"Lease"), for premises consisting of [all] [a portion] of
the floor (the "Premises") in the building located at
580 Winter Street, Waltham, Massachusetts.
2. As of the date of this certificate, the Lease is
in full force and effect and, except as specifically set
forth below, has not been amended, modified, or extended in
any manner whatsoever: [List amendments, if any, and their
dates below]
3. Attached hereto as Exhibit A is a true and
complete copy of the Lease.
4. The current fixed minimum rental under the lease
is $ per month and has been paid to and including the
month of , 1995. Tenant has not prepaid any
sums payable to the landlord under the Lease beyond the
current month.
5. Tenant is not in default of any of its obligations
under the Lease and, to the best knowledge of Tenant,
landlord is not in default under any of its obligations
under the Lease.
6. Tenant (i) has no present right of offset or
defense against any rent, additional rent, or other sums
which are due or to become due from Tenant under the Lease,
(ii) has no actions, claims, proceedings or suits pending or
threatened against the landlord or relating to the Premises
(iii) is not entitled to any rent concessions or abatements.
7. There is currently on deposit under the Lease a
security deposit of $ .
Very truly yours,
[Tenant]:
By:
LEASE
Between
580 WINTER STREET LIMITED PARTNERSHIP,
as LESSOR
and
HARTE-HANKS COMMUNICATIONS, INC.
d/b/a HARTE-HANKS COMMUNITY NEWSPAPERS, MASSACHUSETTS,
as LESSEE
DATED AS OF MARCH 20, 1990
This Lease, dated as of March 20, 1990 (this "Lease"), is by and between
580 WINTER STREET LIMITED PARTNERSHIP, a Massachusetts limited partnership
("LESSOR"), and HARTE-HANKS COMMUNICATIONS,
INC., a Delaware corporation d/b/a HARTE-HANKS COMMUNITY NEWSPAPERS,
MASSACHUSETTS ("LESSEE"). In consideration of the rent to be paid and the
covenants to be performed by LESSEE, LESSOR hereby leases to LESSEE, and
LESSEE
hereby leases from LESSOR, the Leased Premises (as hereinafter defined), upon
the terms and conditions hereinafter set forth,
1. LEASED PREMISES, (a) The leased premises, which are shown on the
plan annexed hereto as Exhibit A (the "Leased Premises"), are a portion of the
building owned by LESSOR and located at 580 Winter Street, Waltham, Middlesex
County, Massachusetts (the "Building"). The Building, together with the land
owned by LESSOR in connection with the Building, is hereinafter referred to as
the "Property," The Building contains approximately seventy-eight thousand six
hundred eighty (78,680) square feet of rentable floor area (the "Building
Rentable Floor Area"), and the Leased Premises comprise approximately twenty-
four thousand four hundred seventy-five (24,475) square feet on the first
floor
of the Building ("Lessee's Rentable Floor Area"), For purposes of this Lease,
the term "Lessee's Proportionate Share" shall mean that percentage calculated
by
dividing Lessee's Rentable Floor Area, as it may be changed by amendment to
this
Lease, by the Building Rentable Floor Area, Lessee's Proportionate Share as of
the date of this Lease is thirty-one percent (31%), It shall be LESSOR's sole
responsibility to ensure that the portion of the Leased Premises occupied by
Thermo Electron Company as of the date of this Lease is vacated in a timely
manner so as not to delay the Term Commencement Date (as defined in Section
4(a)
below).
(b) LESSEE shall have, as appurtenant to the Leased Premises, rights to
use in common with others entitled thereto, (i) those common facilities in the
Building, including common lobbies and walkways, and (ii) to the extent
described in Section l(c) below, the public parking facilities provided for
the
Building, LESSEE's use of the Leased Premises and the aforementioned
appurtenant
areas shall be subject to rules and regulations which have general
applicability
to tenants of the Building and of which Tenant is given notice (collectively,
the "Rules and Regulations"). The initial Rules and Regulations are annexed
as
Exhibit B to this Lease,
(c) LESSOR warrants that it will provide paved vehicular parking for the
Building, lighted from dusk until dawn, in the areas shown on Exhibit A
hereto,
LESSEE shall have the exclusive use of twenty (20) parking spaces in the front
of the Building, as shown on said Exhibit A. and such spaces will be
designated
by signage or
marking as being for LESSEE's sole use. LESSEE shall also have the non-
exclusive use of seventy (70) additional parking spaces in the parking area
located near the rear of the Building, which use shall be in common with other
tenants of the Buiding. However, such 70 parking spaces at the rear of the
Building shall include any spaces occupied by the trash dumpster described in
Section 3(c) hereof and any additional spaces utilized in connection with such
dumpster,
2. INITIAL CONSTRUCTION. (a) LESSOR shall use its best efforts to
complete, at its expense and prior to the Term Commencement Date (as defined
in
Section 4 below), the following work (collectively, the "Initial
Improvements"):
(i) the improvements, modifications and other work to the Leased Premises and
the Property described on the plan annexed hereto as Exhibit C (the "Plan")
and
(ii) the itemized list of above-standard buildout requirements described in
Exhibit D annexed hereto (the "Buildout List"). LESSOR agrees to complete the
Initial Improvements at its cost and expense, in a neat and workmanlike
manner,
and in compliance with the Plan and the Buildout List, LESSOR further
covenants
that all such work shall be carried out in accordance with the requirements,
orders, and limitations of all local, state or federal departments or bureaus
having jurisdiction over the Property, and upon completion the Leased Premises
may be used by LESSEE for the purposes set forth in Section 3(a) below, All
permits and licenses and the necessary insurance required in connection with
the
Initial Improvements are to be obtained and paid for by LESSOR.
(b) LESSOR shall complete, at its expense and prior to the Term
Commencement Date, the production and installation of the signage as shown on
Exhibit E annexed hereto, with the freestanding sign to be located as shown on
Exhibit A hereto. The cost of producing and installing such signage shall be
paid by LESSOR, but LESSEE shall reimburse LESSOR the amount of Five Thousand
Dollars ($5,000) as an additional payment on the Term Commencement Date,
3. USE OF LEASED PREMISES, (a) LESSEE shall use the Leased Premises
only for the purpose of manufacturing, sales and distribution of newspapers
and/or advertising publications and the like, but LESSEE shall not use the
Leased Premises for the printing of any newspapers and/or advertising
publications or the like, LESSEE shall not permit any use of the Leased
Premises
which will adversely affect or make voidable or increase the cost of any
insurance on the property of which the Leased Premises are a part, or any
insurance on the contents of said property, or which may be contrary to any
law
or regulation from time to time established by appropriate authorities or
casualty insurance underwriters (any such use being referred to as an "Adverse
Use"), LESSEE shall on demand reimburse LESSOR and all other tenants of the
Building for any extra insurance premiums caused by any Adverse Use. LESSEE
shall not vacate the Leased Premises or permit them to be unoccupied other
than during LESSEE's customary non-business days or hours, LESSEE shall
not be deemed to be in default or to have vacated the Leased Premises prior to
the end of the Term of this Lease notwithstanding that LESSEE has moved its
facilities from the Leased Premises, if LESSEE continues to pay rent and
perform
its other obligations under this Lease,
(b) No trade, occupation, or activity shall be conducted in the Leased
Premises or use made thereof which will be unlawful, improper, noisy or
offensive, or contrary to any status, regulation, or ordinance in force in the
city or town in which the Property is situated, No pet or other animal may be
kept in the Leased Premises. LESSEE shall keep all LESSEE's employees working
in the Leased Premises covered with Worker's Compensation Insurance, LESSEE
agrees to use reasonable care in preventing damage to heating, ventilation and
air conditioning equipment from harmful solvents, degreasers, chemicals, and
the
like, which may be used within the Leased Premises. No hazardous materials,
hazardous wastes and chemical wastes, as such terms are defined under local,
state and federal laws and regulations, shall be stored, treated or disposed
of,
or allowed to remain within the Leased Premises at any time except for those
chemicals and other materials which are actually used by LESSEE in the
production of photographic materials used in LESSEE's business operations.
LESSEE shall bear the sole responsibility for storing, handling and disposing
of
such chemicals in accordance with local, state and federal regulations,
including the procurement of any necessary permit or approval. LESSEE shall
be
solely responsible for any and all liabilities and damages associated with
LESSEE's failure to comply with the provisions of this Section 3(b).
(c) Without express written approval from LESSOR, no goods, equipment,
or things of any type or description shall be held or stored outside the
Leased
Premises at any time except for (i) personal motor vehicles used by LESSEE or
its employees or visitors (none of which shall be stored or kept outside the
Leased Premises for more than one night), (ii) not more than two (2) pieces of
equipment necessary for the handling of palletized materials (which shall be
stored or kept when not in use in one or more locations behind the Building as
may be specified by LESSOR) and (iii) a dumpster or a combination
compactor/dumpster with a capacity of not more than thirty (30) cubic yards to
service LESSEE's trash disposal needs, which dumpster (x) shall be placed near
the rear of the Building in such location as shall be reasonably specified by
LESSOR, (y) shall, if required by LESSOR, be covered and/or placed within an
enclosure approved by LESSOR to provide visual shielding of such dumpster
(provided, however, that any such requirement for an enclosure shall be
reasonably consistent with similar requirements imposed upon other tenants of
the Building), and (z) shall be emptied and maintained so as to comply with
LESSEE's other
obligations under this Lease. All costs associated with the dumpster,
including the cost of constructing and maintaining any enclosure and the cost
of
trash removal, shall be LESSEE's sole responsbility. Except as expressly
permitted by this Section 3(c), any such goods, equipment or things left or
stored outside the Leased Premises without LESSOR's prior written consent
shall
be deemed abandoned and may be removed by LESSOR if not removed as soon as
possible by LESSEE after notice by LESSOR. LESSEE agrees to pay all
reasonable
charges associated with said removal and any resulting storage or disposal,
(d) No curtains, blinds, shades, or screens, other than those furnished
by LESSOR, shall be attached to, hung in or on, or used in connection with any
exterior window, exterior door or exterior wall of the Leased Premises, if
same
shall be visible from the outside of the Building, without the prior written
consent of LESSOR, which consent shall not be unreasonably withheld. No sign
or
display of any kind shall be attached to, hung in or on, or used in connection
with any exterior window of the Leased Premises, and all window areas shall be
kept clear of any materials visible from the outside of the Building,
Notwithstanding the foregoing, LESSEE shall have the right to locate desks and
other furniture adjacent to such window areas even if such furniture is
visible
from the outside the Building. However, LESSEE shall keep all window areas in
a
neat and orderly fashion and shall not locate designated storage areas
adjacent
to the window areas of any exterior walls. LESSEE shall not be obligated to
obtain the approval of LESSOR for interior signs, except for those which may
be
located in common areas, and LESSEE shall not be obligated to obtain the
approval of LESSOR for drapes, curtains or the like if not visible from the
outside of the Building, Other than the signage described in Section 2(b) and
Exhibit E hereto, interior and exterior signs on doors or any exterior wall of
the Building, or any exterior freestanding sign, shall be painted, fabricated
and/or installed or affixed for LESSEE by LESSOR or at LESSOR's direction, at
the sole expense of LESSEE, and shall be of a size, color and style acceptable
to LESSOR in its sole judgment and discretion.
(e) LESSOR warrants and covenants that the Leased Premises may be used
for the purposes set forth in Section 3(a) above throughout the Term of this
Lease and any extension thereof.
(f) LESSOR warrants and covenants that it will not lease, or consent to
the assignment or subletting, or otherwise permit any other portion of the
Property to be used by any person or other entity whose business would be the
same as, or substantially similar to, any use permitted to be made by LESSEE
pursuant to Section 3(a) above,
4. TERM. (a) Base Term, The base term of this Lease (the "Base
Term") shall commence at 12:01 A.M. on July 5, 1990 (the 'Term
Commencement Date,) provided that (i) by March 16, 1990, LESSEE has
supplied its specifications for the Leased Premises to LESSOR and has
mutually agreed with LESSOR upon the Initial Improvements and (ii) by March
20,
1990 LESSEE has executed and delivered this Lease; and the Base Term shall
expire at midnight on August 31, 1995 unless sooner terminated pursuant to the
terms of this Lease. If the conditions set forth in the preceding sentence
have
not been satisfied as of March 16, 1990 and March 20, 1990, respectively, the
Term Commencement Date shall be postponed day by day until such conditions
have
been satisfied.
(b) Delay of Term Commencement Date, For purposes of this Lease, the
term "Ready For Occupancy" shall mean that point in time at which (i) the
Initial Improvements have been completed except for minor work such as would
be
reasonably expected to be noted on a routine punch list, (ii) the Leased
Premises are available for LESSEE's occupancy and (iii) if a Certificate of
Occupancy from the City of Waltham is required for the Leased Premises, the
Initial Improvements and the Leased Premises have satisfactorily passed those
inspections required for the issuance of such Certificate of occupancy (with
the
actual Certificate of Occupancy to be obtained as soon thereafter as possible
with diligent efforts), At least fifteen (15) days before the Term
Commencement
Date, LESSOR shall notify LESSEE whether the Leased Premises are expected to
be
Ready for Occupancy on the Term Commencement Date (the "Readiness Notice").
If
LESSOR states in such notice that the Leased Premises are not expected to be
Ready for Occupancy on the Term Commencement Date, the Term Commencement Date
shall be postponed until the later of the date specified by LESSOR in such
notice or that date which is fifteen (15) days after LESSOR shall have given a
new notice to LESSEE that the Leased Premises are Ready for Occupancy, If
LESSOR
is not able to deliver possession of the Leased Premises Ready For Occupancy
on
the Term Commencement Date, and LESSOR has failed to so notify LESSEE at least
fifteen (15) days prior thereto as set forth above, LESSEE shall not be
obligated to take possession on the Term Commencement Date but shall have the
option to postpone the Term Commencement Date for a period not to exceed
fifteen
(15) days from the date that LESSEE is notified that the Leased Premises are
Ready For Occupancy, If the Leased Premises are not Ready for Occupancy by
August 5, 1990, LESSEE shall have the option, exerciseable by notice given to
LESSOR by August 10, 1990, to terminate this Lease.
(c) Extension Terms, Subject to the provisions set forth below in this
Section 4(b), LESSEE shall have the right and option to extend the term of
this
Lease beyond the Base Term for two additional and separate terms of three (3)
years each (the "Extension Terms") unless and until this Lease shall be sooner
terminated pursuant to its terms. The first Extension Term shall commence on
the date immediately succeeding the expiration date of the Base Term and shall
end at midnight on the day immediately preceding the third anniversary of such
commencement date (the "First Extension Term"), The second Extension Term
shall
commence
on the date immediately succeeding the expiration date of the First
Extension Term and shall end at midnight on the day immediately preceding the
third anniversary of such commencement date (the "Second Extension Term"),
(d) Exercise of Option for Extension Terms, At least fifteen
(15) months before the end of the term then in effect, LESSEE shall give
notice to LESSOR whether LESSEE intends to exercise its option for the First
Extension Term or the Second Extension Term, as the case may be, If LESSEE
gives
notice of its intent to exercise such option (the "Extension Notice'), LESSOR
shall designate the Base Rent for the First Extension Term or Second Extension
Term, as the case may be, and the estimated Additional Rent for the first year
thereof, by notice given to LESSEE (including information to support such
designation of Base Rent) at least fourteen (14) months before the end of the
term then in effect, Such Base Rent shall be determined as set forth in
Section 5(b) below, and Additional Rent shall be estimated by calculating, to
the extent
practicable, the Additional Rent that would have been payable during the
annual
period preceding the Extension Notice if the provisions of Section 6(c) below
had been applicable to such period. Within one (1) month after receipt of
such
notice, LESSEE shall give notice to LESSOR (the "Reply Notice") whether LESSEE
accepts such Base Rent, but if LESSEE does not accept it, LESSEE shall include
with the Reply Notice the data and information supporting LESSEE's
determination
of such Base Rent, If LESSOR and LESSEE are not able thereafter to agree on
such
Base Rent, LESSEE shall have the option, exerciseable by notice to LESSOR at
least one (1) year before the end of the term then in effect, (i) to withdraw
and cancel the Extension Notice (in which event LESSEE shall have no option to
extend the Term of this Lease) or (ii) have such Base Rent determined by
arbitration as set forth in Exhibit F annexed hereto (in which event this
Lease
shall be extended for the First Extension Term or the Second Extension Term,
as
the case may be, and no other instrument of renewal need by executed.
(e) Other Conditions for Extension Terms. If LESSEE fails to give the
Extension Notice to LESSOR as specified in Section 4(d) above, LESSEE shall
have
no option to extend the Term of this Lease, In addition, if an Event of
Default
under this Lease shall have occurred and be continuing either at the time of
the
Extension Notice or at any time thereafter during the Base Term or any
Extension
Term, LESSOR shall have the option, exercisable by notice to LESSEE, to
terminate such option, whereupon such option shall be void and of no further
force or effect, If LESSEE does not exercise its option to extend the Term of
this Lease for any Extension Term as provided in Section 4(d), or if such
option
is terminated as provided herein, then LESSOR shall have the right during the
remainder of the Base Term or first Extension Term, as the case may be, to
advertise the availability of the Leased Premises for reletting.
5. BASE RENT. (a) No Base Rent shall be payable for the first month
of
the Base Term, Thereafter, (i) for the next fifty-eight (58) months, LESSEE
shall pay LESSOR, as base rent for the Base Term, the sum of Two Hundred
Eighty-
One Thousand Four Hundred Sixty-Two and 50/100 Dollars ($281,462.50) per year,
payable in advance in equal monthly installments of Twenty-Three Thousand Four
Hundred Fifty-Five and 20/100 Dollars ($23,455.20), (ii) for the 60th month,
no
Base Rent shall be payable, and (iii) for the 61st and 62nd months, the Base
Rent shall be Twenty-Six Thousand Five Hundred Fourteen and 60/100 Dollars
($26,514.60), in each case on the first day in each calendar month, The first
monthly payment of Base Rent shall be prorated for any portion of a month at
the
commencement of the term.
(b) LESSEE shall pay LESSOR, as annual base rent for any Extension Term,
an amount equal to the greater of (i) Thirteen Dollars ($13,00) per square
foot
of Lessee's Rentable Floor Area, or (ii) the fair market rental value of the
Leased Premises as determined in accordance with paragraph (a) of Exhibit F
hereto, The payments of base rent required pursuant to this Section 5 are
referred to in this Lease as "Base Rent," and all payments of Base Rent and
Additional Rent (as defined in Section 6 below) shall be made to LESSOR in
immediately available U.S. dollars at Eight Faneuil Hall Marketplace, Boston,
Massachusetts 02109, or at such other place as LESSOR shall from time to time
designate in writing.
6. ADDITIONAL RENT. (a) LESSEE shall pay LESSOR, as additional
rent, Lessee's Proportionate Share of the real estate taxes (or other
payments
imposed by governmental authorities in the nature of or in lieu of real estate
taxes) or betterments assessments levied against the Property, and LESSEE
shall
make such payment to LESSOR within twenty (20) days after notice from LESSOR
that any installment of such taxes or betterments assessment has been paid to
the appropriate taxing authority. Any such payment shall be prorated if this
Lease terminates before the end of the tax period to which such payment
relates.
(b) LESSEE shall also pay LESSOR, as additional rent, (i) during the
first three (3) years after the Term Commencement Date, a monthly management
fee
equal to five percent (5%) of the Base Rent payable for such month by LESSEE,
(ii) thirty-one percent (31%) of LESSOR's payments under service contracts
with
independent contractors for services to the Building or the Leased Premises,
provided that LESSEE's obligations under this clause (ii) shall not exceed One
Thousand Five Hundred Dollars ($1,500) per year, and (iii) Lessee's
Proportionate Share of LESSOR's expenses for electricity, gas, water, and
sewer
use charges not separately chargeable to other tenants of the Building.
(c) During any Extension Term, LESSEE shall pay LESSOR, as additional
rent, Lessee's Proportionate Share of Lessor's Operating Expenses for any
calendar year during such Extension Term, prorated for any portion of a
calendar
year occurring at the beginning and end of such Extension Term, For purposes
of
this Lease, the term "Lessor's Operating Expenses" shall mean those expenses
of
LESSOR not separately chargeable to tenants of the Building and incurred in
connection with the operation and maintenance of the Property, including: (1)
electricity, water, gas, sewer and other utility charges not separately
chargeable to tenants; (2) cost of maintenance and repairs, including
engineering services, landscaping, grounds maintenance and snow removal; (3)
payments under the service contracts with independent contractors, including
security service; (4) payments for management services of not more than five
percent (5%) of collected base rents from the Property; and (5) the cost of
maintaining insurance on the Property.
(d) Any additional rent payments due by LESSEE shall be made within
twenty (20) days after LESSOR shall have given LESSEE notice thereof,
accomplished by a reasonable accounting, where applicable, of the
determination
of such additional rent.
(e) The payments of additional rent required pursuant to this Section 6
are referred to in this Lease as "Additional Rent").
7. NET LEASE: LATE PAYMENT. This Lease is intended to be a net lease,
and the payments of Base Rent and Additional Rent by LESSEE shall be made
without any offset, abatement or deduction whatsoever except as may be
expressly
provided for under the terms of this Lease, LESSEE shall pay interest at an
annual rate of eighteen (18) percent, from the date due, for any installment
of
rent or other payment which is not received by LESSOR within seven (7) days
after said due date.
8. OCCUPANCY. (a) If LESSEE takes possession of the Leased Premises
prior to the Term Commencement Date, LESSEE will perform and observe all of
LESSEE's covenants from the date upon which LESSEE takes possession. LESSEE
shall not remove LESSEE's goods or property from the Leased Premises other
than
in the ordinary and usual course of business, without having first paid and
satisfied LESSOR for all rent and other sums which may be due as of the date
of
any such removal. If LESSEE continues to occupy or control all or any part of
the Leased Premises after the agreed termination date of this Lease without
the
written permission of LESSOR, all other terms of this Lease shall continue to
apply except that LESSEE shall be liable to LESSOR for any and all loss,
damages
or expenses incurred by LESSOR caused by such holding over, and rent shall be
due on a prorated, per diem basis at a rate of one hundred fifty (150) percent
of the Base Rent and Additional Rent which would otherwise be due under this
Lease, LESSEE's control or occupancy of
all or any part of the Leased Premises beyond midnight on the last day of
any monthly rental period shall constitute LESSEE's occupancy.
(b) For purposes of this Lease, LESSEE will not be deemed to have taken
possession of the Leased Premises if, prior to the Term Commencement Date, (i)
LESSEE causes to have telephone wires and/or computer wires or the like
installed throughout the Leased Premises, or (ii) LESSEE causes telephone
equipment or computer equipment to be installed in the computer room as shown
on
Exhibit C hereto. LESSEE shall have a right of access for such installation
beginning June 5, 1990.
9. UTILITIES. LESSOR shall provide equipment sufficient to heat and
cool the Leased Premises so that normal warm and cool temperatures are
maintained throughout the Leased Premises, twenty-four (24) hours a day, seven
(7) days a week. LESSEE shall have access to all utilities servicing the
Building, specifically including but not limited to water, heat and
electricity,
twenty-four (24) hours a day, seven (7) days a week. In addition, LESSOR
agrees
to provide outside lighting (including the parking area) and lighting in the
common areas serving the Leased Premises so that said areas are lighted from
dusk until dawn, The Leased Premises shall be separately metered for
electricity
usage within the Leased Premises, and if permitted by the applicable utility,
LESSEE shall pay directly to the such utility all charges for electricity and
gas used in the Leased Premises, If the applicable utility does not permit
such
direct payment, LESSEE shall pay LESSOR the amount of such charges within ten
(10) days after delivery to LESSEE of the applicable invoice for such charges
from such utility, Except in an emergency situation, no plumbing, electrical,
heating, ventilation or air conditioning work of any type shall be done
without
LESSOR's approval and the appropriate municipal permit and inspector's
approval,
Sewer for domestic type sanitary purposes (only) and water shall be supplied
by
LESSOR, and the cost thereof shall be included in Lessor's Operating Expenses
(as defined in Section 6(c) hereof.
10. MAINTENANCE OF PREMISES. LESSOR will be responsible for all
structural maintenance of the Leased Premises and for the normal maintenance
of
all heating and cooling equipment, doors, locks, plumbing, electrical wiring,
and the parking areas and exterior lighting fixtures but specifically
excluding
damage caused by the careless, malicious, willful, or negligent acts of LESSEE
or its agents, employees or visitors, LESSEE agrees to maintain at its expense
all other aspects of the Leased Premises in the same condition as they are at
the commencement of the term or as they may be put in during the term of this
Lease, normal wear and tear and damage by fire or other casualty only
excepted.
Whenever necessary, LESSEE shall replace light bulbs, plate glass and other
glass therein, acknowledging that the Leased Premises are in good order and
the
light bulbs and glass whole as of the Term Commencement
Date, LESSEE shall ensure that the Leased Premises and are kept in a neat
and clean condition, depositing all waste in appropriate receptacles, and
LESSEE
shall be responsible, at its expense, for the cleaning of the Leased Premises
and the removal of all its trash and waste from the Property, LESSEE shall not
permit the Leased Premises to be overloaded, damaged, stripped or defaced, nor
suffer any waste, Any increase in air conditioning equipment or electrical
capacity, or any mechanical maintenance which is necessitated by some specific
aspect of LESSEE's use of the Leased Premises shall be at LESSEE's expense
unless included within the Initial Improvements or unless otherwise agreed to
in
writing by LESSOR, All maintenance provided by LESSOR shall,. to the extent
practicable, be accomplished during normal business hours.
11. ALTERATIONS DURING THE TERM: GENERAL STANDARDS. (a) LESSEE shall not
make structural alterations or structural additions of any kind to the Leased
Premises, but may make non-structural alterations provided LESSOR consents
thereto in writing, which consent shall not be unreasonably withheld, delayed
or
qualified, and the consent of LESSOR will be deemed given unless, within ton
(10) days after receiving a request for approval, LESSOR responds in writing
to
the contrary, Notwithstanding the foregoing, LESSEE shall have the right,
without the consent of LESSOR but only after notice to LESSOR, to make non-
structural alterations provided the alterations do not adversely affect the
Building's appearance, its structural integrity, the Building systems, or
other
tenants, and the costs of any such alteration is less than Five Thousand
Dollars
($5,000,00), All such allowed alterations shall be at LESSEE's expense and
shall
be in quality at least equal to the general standard within the Building, If
LESSOR performs any services for LESSEE in connection with such alterations or
otherwise, LESSOR's reasonable expenses related thereto shall be promptly paid
after invoicing by LESSOR, LESSEE shall not permit any mechanics' liens or
similar liens to remain upon the Leased Premises in connection with work of
any
character performed or claimed to have been performed at the direction of
LESSEE
and shall cause any such lien to be released or removed forthwith without cost
to LESSOR. Any alterations or improvements shall become part of the real
estate
and the property of LESSOR unless otherwise agreed to in writing by LESSOR at
the time such alternatives or improvements are made (those alterations or
improvements agreed to as belonging to LESSEE being referred to as "Lessee's
Alterations"). Any alterations completed by LESSOR shall be 'building
standard"
unless noted otherwise, LESSOR shall have the right at any time to change the
arrangement of parking areas, stairs, walkways or other common areas of the
Building so long as (i) said changes do not adversely affect or impact the
business operations of LESSEE, (ii) the number of parking spaces provided for
LESSEE under this Lease is not reduced and the location of the twenty (20)
parking spaces in the front of the Building is not changed, and (iii) access
to
the Leased Premises is not impaired or made materially less convenient.
(b) All construction work required or permitted by this Lease, whether
by LESSOR or LESSEE, shall be done in a good and workmanlike manner and in
compliance with all applicable laws and all lawful ordinances, regulations and
orders of governmental authorities and insurers of the Building, Any such work
being performed by or on behalf of LESSEE shall be coordinated with any work
being performed by LESSOR and in such manner as to maintain harmonious labor
relations and not to damage the Property (specifically including the computer
system) or interfere with Building operation and, except for installation of
furnishings, shall be performed by a general contractor licensed in
Massachusetts or by other contractors or workmen, in each case first approved
by
LESSOR. LESSOR's approval shall not be unreasonably withheld, delayed or
qualified and shall be deemed given unless LESSOR responds in writing to the
contrary within ten (10) days after reasonable information on such contractor
or
workmen has been supplied to LESSOR. Except for work by LESSOR's general
contractor, LESSEE, before its work is started, shall (i) secure all licenses
and permits necessary therefor; (ii) deliver to LESSOR a statement of the
names
and business addresses of all its contractors and subcontractors and the
estimated cost of all labor and material to be furnished by them; (iii) cause
each contractor to carry workmen's compensation insurance in statutory amounts
covering all of the contractor's and subcontractor's employees, together with
comprehensive public liability insurance with limits of at least $2,000,000
comprehensive single limit and property damage insurance with limits of at
least
$500,000 (all such insurance to be written insuring LESSOR AND LESSEE as well
as
the contractors); and (iv) deliver to LESSOR certificates of all such
insurance,
LESSOR agrees that no such certificate shall be required in connection with
LESSEE's initial leasehold improvements in the Leased Premises.
12. ASSIGNMENT OR SUBLEASING. (a) LESSEE shall not assign this Lease or
sublet or allow any other firm or individual to occupy the whole or any part
of
the Leased Premises without LESSOR's prior written consent, which consent
shall
not be unreasonably withheld or delayed so long as (i) such assignment or
sublease shall be for a term expiring on or before the expiration of the Term
of
this Lease then in effect, (ii) LESSEE shall have disclosed to LESSOR the
financial terms of the proposed sublease or assignment and (iii) LESSEE shall
have provided LESSOR with such information on the proposed assignee or
sublessee
as LESSOR Shall have reasonably requested, and LESSOR shall have determined,
in
its judgment reasonably exercised, that the use of the Leased Premises by the
proposed assignee or sublessee is not incompatible with the other uses in the
Building and that the proposed assignee or sublessee is at least as
creditworthy
as LESSEE was on the Term Commencement Date, In lieu of giving its consent,
LESSOR shall have the option to enter into a direct lease with the proposed
sublessee or assignee on substantially the same terms and conditions as are
contained in this Lease, except for rent, which shall be as set forth in
LESSEE's
disclosure of financial terms to LESSOR, LESSOR shall exercise such option
by notice given to LESSEE within three (3) weeks after the information
described
in clause (iii) above has been supplied to LESSOR, but in no event shall
LESSOR
be required to exercise such option until one (1) week after the information
described in clause
(ii) above has also been supplied to LESSOR, If LESSOR exercises such
option, this Lease shall terminate on the effective date of such new
lease, If
LESSOR does not exercise such option, LESSEE shall be entitled to proceed with
its sublease or assignment, but only with the same party and on the same terms
and conditions as were disclosed to LESSOR.
(b) If LESSEE enters into a sublease as permitted under Section 12(a)
above, LESSEE and any guarantor of this Lease shall remain liable to LESSOR
for
the payment of all rent and for the full performance of the covenants and
conditions of this Lease unless released from such obligations by LESSOR in
writing, Without LESSOR's consent, but only after at least ten (10) days
advance
notice to LESSOR, LESSEE may assign this Lease or sublet all or any portion of
the Leased Premises to or permit occupancy of the Leased Premises to or permit
occupancy of the Leased Premises or any portion thereof by, an affiliated
person
or affiliated entity. For purposes of this Section, the term affiliated
person"
shall mean any person who ownes more than a twenty-five percent (25%) interest
in LESSEE, and the term 'affiliated entity" shall mean any corporation or
other
entity which, directly or indirectly, controls or is controlled by, or is
under
common control with, LESSEE, The term "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of another entity through ownership of voting securities.
13. SUBORDINATION. This Lease shall be subject and subordinate to any
and all mortgages and other instruments in the nature of a mortgage, now or at
any time hereafter secured by the Property or any portion thereof, and LESSEE
shall, when requested, promptly execute and deliver such written instruments
as
shall be necessary to show the subordination of this Lease to said mortgages
or
other such instruments in the nature of a mortgage, provided that (i) the
mortgagee or holder of any other instruments in the nature of a mortgage shall
execute a non-disturbance agreement in favor of LESSEE to provide that in the
event of the foreclosure of such mortgage, LESSEE's rights under this Lease
shall not be affected so long as LESSEE continues to pay the rent provided for
in this Lease and otherwise complies with the terms and provisions hereof, and
(ii) the lien of such mortgage shall not cover any of LESSEE's personal
property
or any of the LESSEE's fixtures, furnishings, alterations or improvements
which
LESSEE is permitted to remove from the Leased Premises pursuant to the terms
of
this Lease, In confirmation of such subordination, LESSEE shall execute
promptly
any agreement which LESSOR or its mortgagee may request with respect
thereto, If LESSEE fails, neglects or refuses to do so within seven (7)
days after written request therefor from LESSOR or the mortgagee, LESSOR shall
have the right and is hereby authorized to execute any such instrument on
behalf
of LESSEE.
14. LESSOR'S RESERVATIONS AND ACCESS, (a) LESSOR reserves the right from
time to time, without unreasonable interference with LESSEE's use of the
Leased
Premises and upon at least twenty-four (24) hours telephonic or written notice
in non-emergency situations: (i) to install, repair, replace, use, maintain
and
relocate for service to the Leased Premises and to other parts of the
Building,
pipes, ducts, conduits, wires and appurtenant fixtures wherever located in the
Building, and (ii) to alter or relocate any other common facility, provided
that
the substitutions are substantially equivalent to or better than such common
facility before its alteration or relocation, Installations, replacements and
relocations referred to in this Section shall be located, to the extent
practicable, in the core areas, above ceiling surfaces, below floor surfaces
or
within the perimeter walls of the Building.
(b) LESSOR or agents of LESSOR may at reasonable times enter to view the
Leased Premises and may remove any signs not approved and affixed as herein
provided, and may make repairs and alterations which LESSEE is required but
has
failed to do, and may show the Leased Premises to others within one year prior
to the end of the term of this Lease unless LESSEE's option with respect to
the
Expansion Space has been exercised and is in effect under the terms of this
Lease.
15. LIABILITY: INSURANCE. (a) From and after the date upon which LESSEE
takes occupancy, LESSEE shall be solely responsible as between LESSOR and
LESSEE
for deaths, personal injuries or property damage occurring in or on the Leased
Premises (including any extension thereof) from whatever cause arising out of
the use, control, condition or occupation of the Leased Premises by LESSEE;
and
LESSEE agrees to indemnity and save harmless LESSOR from any and all
liability,
reasonable expense, direct (but not consequential) damage, causes of action,
suits, claims or judgments caused by or in any way arising out of any such
matter, except for death, personal injuries or property damage resulting from
the negligence of LESSOR or its agents. LESSOR agrees to indemnify and hold
LESSEE harmless from any and all liability, reasonable expense, direct (but
not
consequential) damage, causes of action, suits, claims or judgments caused by
LESSOR's negligence or the negligence of its agents or employees. LESSEE will
secure and carry at its own expense a comprehensive general liability policy
insuring LESSEE and LESSOR against any claims arising out of the matters
described in the foregoing sentence, such policy to insure LESSEE and LESSOR
against any claim up to Three Million ($3,000,000) Dollars in the case of any
one accident involving bodily injury (including death), and up
to One Million ($1,000,000) Dollars against any claim for damage to
property, LESSOR shall be included in such policy as a named insured, LESSEE
will promptly file with LESSOR certificates showing that such insurance is in
force, and thereafter will file renewal certificates prior to the expiration
of
any such policies, All such insurance certificates shall provide that such
policies shall not be cancelled or the coverage thereunder reduced without at
least ten (10) days prior written notice to each insured named therein.
(b) Unless caused by the negligence of LESSOR or its agents or
employees, LESSOR shall not be held liable to anyone for loss or damage caused
in any way by the use, leakage, seepage or escape of water from any source, or
for the cessation of any service rendered customarily to said premises or
buildings, or agreed to by the terms of this Lease, due to any accident, to
the
making of repairs, alterations or improvements, to labor difficults, weather
conditions, or mechanical breakdowns, to trouble or scarcity in obtaining
fuel,
electricity, service or supplies from the sources from which they are usually
obtained for the Building, or to any cause beyond LESSOR's immediate control.
(c) If the Leased Premises are rendered untenantable for a period of
three (3) or more consecutive days due to the unavailability of utility
services
to be provided by LESSOR, then LESSEE shall be entitled to a pro-rata
abatement
of rent until such time as said services are restored.
l6. FIRE, CASUALTY, EMINENT DOMAIN. If a substantial portion of the
Leased Premises or the Property is substantially damaged by fire or other
casualty, or is taken by eminent domain, LESSOR shall have the option to
terminate this Lease by giving notice of termination to LESSEE within thirty
(30) days after such casualty or taking has occurred. When such fire,
casualty,
or taking renders the Leased Premises unsuitable for their intended use, a
just
and proportionate abatement of rent shall be made; and LESSEE may elect to
terminate this Lease if (a) LESSOR fails to give written notice, within thirty
(30) days after such casualty or taking has occurred, of its intention to
restore the Leased Premises, or (b) LESSOR fails to restore the Leased
Premises
to a condition substantially suitable for their intended use within ninety
(90)
days after such casualty or taking. LESSEE's election must be exercised by
notice given to LESSOR within twenty (20) days after the expiration of such
30-day or 90-day period, as the case may be. LESSOR reserves all rights for
damages or injury to the Leased Premises and for any taking by eminent domain,
except for any award or proceeds directly attributable to LESSEE's fixtures,
equipment or other tangible personal property.
17. EVENTS OF DEFAULT: REMEDIES. (a) The occurence of any one or more of
the following shall be an Event of Default under this Lease:
(i) LESSEE shall default in the payment of rent or any other sum due
under the provisions of this Lease and such default shall continue for seven
(7) days after written notice thereof (provided, however, that LESSEE shall
not be entitled to any such notice after notice has been given with respect
to two other payment defaults within the prior twelve-month period);
(ii) LESSEE shall default in the observance or performance of any of
LESSEE's other covenants, agreements, or obligations under this Lease, and
such
default shall continue for fifteen (15) days after written notice thereof,
provided, however, that if LESSEE has begun to cure such default within such
15-day period and continues thereafter to attempt to cure such default with
diligent efforts, LESSEE shall have such additional period of time, not to
exceed an additional fifteen (15) days, as shall be required to cure such
default;
(iii) LESSEE vacates the Leased Premises or permits them to be unoccupied
in the normal conduct of LESSEE's business for more than ten (10) consecutive
days (or six (6) consecutive months so long as LESSEE continues to pay all
rent and perform all of its other obligations under this Lease); or
(iv) LESSEE shall be declared bankrupt or insolvent according to law, or
if any assignment shall be made of LESSEE's property for the benefit of
creditors.
(b) During the continuance of an Event of Default, LESSOR shall have the
right (i) without demand or further notice, to re-enter and take complete
possession of the Leased Premises and to remove and store LESSEE's effects, at
LESSEE's expense and without being guilty of any manner of trespass and
without prejudice to any other remedies LESSOR may have, and (ii) upon notice to
LESSEE, to declare the term of this Lease ended, in which event the entire
balance of Base Rent which would otherwise accrue under this Lease (the "Rent
Balance") shall become immediately due and payable. However, if LESSEE pays
the Rent Balance to LESSOR, and if during the remainder of the term then in
effect.
LESSOR relets the Leased Premises or any portion thereof, at the end of such
term LESSOR shall credit and pay LESSEE the amount of Base Rent paid to
LESSOR with respect to the Leased Premises during the remainder of such term,
after deducting all LESSOR's expenses in connection with such reletting,
including, without limitation, all repossession costs and brokerage
commissions, LESSEE agrees that LESSOR in its sole discretion may relet the
Leased Premises or any portion thereof, for a term or terms which may at
LESSOR's option be equal to or less than or exceed the period which would
otherwise have constituted the balance of the applicable term, and for such
consideration or rent as LESSOR solely shall determine, Although LESSOR
agrees to use reasonable efforts to relet the Leased Premises, LESSOR shall
have no liability or obligation to LESSEE in the event the Leased Premises
or any portion thereof are not relet.
(c) LESSOR, without being under any obligation to do so and without
thereby waiving any Event of Default, may, however, remedy same for the
account
and at the expense of LESSEE, If LESSOR pays or incurs any obligations for the
payment of money in connection therewith, including but not limited to
reasonable attorney's fees in instituting, prosecuting or defending any action
or proceeding, such sums paid or obligations incurred plus interest at the
rate
of eighteen (18) percent per annum and costs, shall be paid to LESSOR by
LESSEE
as additional rent, Any sums received by LESSOR shall be applied first to any
unamortized improvements completed for LESSEE's occupancy, then to offset any
outstanding invoice or other payment due to LESSOR, with the balance applied
to
outstanding rent, Notwithstanding the foregoing, LESSEE agrees to pay
reasonable
attorney's fees incurred by LESSOR in enforcing any and all obligations of
LESSEE under this Lease at any time.
(d) No consent or waiver, express or implied, by LESSOR, to or of any
breach of any covenant, condition or duty of LESSEE shall be construed as a
consent or waiver to or of any other breach of the same or any other covenant,
condition or duty,
18. SURRENDER. LESSEE shall at the expiration or other termination of
this Lease remove all of LESSEE's goods and effects from the Leased Premises.
LESSEE shall deliver to LESSOR the Leased Premises and all keys and locks
thereto, and other fixtures and equipment connected therewith, and all
alterations, additions and improvements made to or upon the Leased Premises
(except for Lessee's Alterations, as defined in Section 11(a) hereof),
including
but not limited to any permanent partitions, floor coverages (including
computer
floors), plumbing and plumbing fixtures, air conditioning equipment and duct
work of any type, exhaust fans or heaters, burglar alarms, telephone wiring,
wooden or metal shelving which has been bolted, welded or otherwise attached
to
the Building, air or gas distribution piping, counters attached to walls or
floors, electrical fixtures, and electrical switchboards, power panels or
similar electrical equipment. LESSEE shall deliver the Leased Premises broom
clean and in the same condition as they were at the commencement of the term,
or
as they were put in during the term hereof, reasonable wear and tear and
damage
by fire or other casualty only excepted, In the event of LESSEE's failure to
remove any of LESSEE's property from the Leased Premises within one (1) day
after the expiration or other termination of this Lease, LESSOR is hereby
authorized, without liability to LESSEE for loss or damage
thereto, and at the sole risk of LESSEE, to remove and store any such
property at LESSEE's expense, or to retain same under LESSOR's control, or to
sell at public or private sale (without notice), any or all of the property
not
so removed and to apply the net proceeds of such sale to the payment of any
sum
due hereunder, or to destroy such property, all of which shall be conclusively
deemed to have been abandoned. In no case shall the Leased Premises be deemed
surrendered to LESSOR until the expiration date provided herein or such other
date as may be specified in a written agreement between the parties.
19. NOTICES; OTHER COMMUNICATION. Any notice or other communication
given or made pursuant to this Lease (a "Communication") shall be in writing
and
shall be hand delivered or sent either (i) through the United States Postal
Service, or any official successor thereto, designated as registered or
certified mail, return receipt requested, bearing adequate postage, (ii) by
means of an express delivery service if it obtains a written receipt to
confirm
delivery, or (iii) by means of a facsimile transmission if a written
acknowledgment of receipt is confirmed by facsimile transmission or otherwise,
Each Communication shall be effective upon the receipt thereof by the
addressee
or its agent. Rejection or refusal to accept or inability to deliver because
of
change of address of which no notice was given as provided herein shall be
deemed to be receipt of the Communication sent. By giving to the other party
hereto at least twenty (20) days notice thereof, any party hereto shall have
the
right from time to time to change its address for purposes of this Lease to
any
other address within the continental United States of America. Until notice
of
change of address as aforesaid, each such Communication shall be addressed, if
to LESSOR, at Eight Faneuil Hall Marketplace, Boston, Massachusetts 02109
(Attention: Richard Sandberg), and if to LESSEE, (i) prior to the Term
Commencement Date, at 420 Washington Street, Dedham, Massachusetts 02026
(Attention: Helen Cochran) and (ii) after the Term Commencement Date, at the
Leased Premises (Attention: Helen Cochran).
20. BROKERAGE. LESSEE represents and warrants that it has dealt with no
broker in connection with this transaction other than Coldwell Banker. LESSEE
agrees to defend, indemnify and save LESSOR harmless from and against any and
all claims for a commission arising out of this Lease, other than from such
broker, and LESSOR agrees to pay the commission of such broker arising out of
this Lease.
21. GENERAL PROVISIONS.
(a) The invalidity or unenforceability of provision of this Lease shall
not affect or render invalid or unenforceable any other provision hereof.
(b) The obligations of this Lease shall run with the land, and this
Lease shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
(c) No action or proceeding, regardless of form, arising out of the
subject matter of this Lease shall be brought by LESSOR or LESSEE more than
one
year after the cause of action has occurred, of if later, one year after the
claiming party knew or should have known of the events giving rise to such
cause
of action.
(d) If LESSOR or LESSEE is acting under any partnership or corporation,
the obligations of LESSOR or LESSEE, as the case may be, shall be binding upon
the partnership or corporation but not individually upon any partner, officer,
corporate officer or shareholder of the partnership or corporation.
(e) This Lease is made and delivered in the Commonwealth of
Massachusetts, and shall be interpreted, construed, and enforced in accordance
with the laws thereof.
(f) This Lease, when executed by both parties shall constitute the
entire agreement between said parties, No other verbal or written
representation
shall have any effect hereon, and this Lease may not be altered, extended or
amended except by written agreement attached hereto or as otherwise provided
herein.
(g) Notwithstanding any other statements herein, LESSOR makes no
warranty, express or implied, concerning the suitability of the Leased
Premises
for LESSEE's intended use.
(h) LESSEE hereby grants to LESSOR a continuing security interest for
all sums of money becoming due hereunder upon all existing or hereafter
acquired property of LESSEE in the Leased Premises. Upon default under this
Lease, LESSOR, in addition to all other remedies provided herein or by law,
will
have all rights and remedies under the Uniform Commercial Code, including
without limitation the right to sell the property herein described. LESSEE
also
agrees to execute a UCC-1 Financing Statement, or other financing agreement as
may in LESSOR's opinion be necessary to perfect or continue the security
interest herein created.
(i) LESSOR and LESSEE will execute and deliver a recordable notice of
lease with respect to this Lease, and all recording charges shall be paid by
LESSEE.
(j) Within ten (10) days after written request by LESSOR, LESSEE shall
deliver to LESSOR an estoppel certificate, in such form as may be required by
any mortgagee or prospective mortgagee of the Property, setting forth factual
information concerning this Lease and LESSEE's tenancy hereunder.
22. RIGHT OF FIRST REFUSAL. During the Base Term or the First Extension
Term, provided that LESSEE is not then in default under this Lease, LESSOR
shall
not lease any space abutting or contiguous to the Leased Premises and
containing
five thousand (5,000) square feet or less (the "Additional Space") at any time
except in compliance with the following provisions of this Section 22, LESSOR
shall give notice to LESSEE that such Additional Space has or will become
available (the "Availability Notice"), and the Availability Notice shall
include
LESSOR's determination of the fair market rental value for the Additional
Space,
calculated as set forth in paragraph (a) of Exhibit F hereto, Within two (2)
weeks after receipt of the Availability Notice, LESSEE shall give notice to
LESSOR (the "First Refusal Notice") whether LESSEE is interested in leasing
the
Additional Space. If LESSEE declines interest in leasing the Additional
Space,
or if LESSEE expresses such interest but LESSOR and LESSEE shall not have
executed an appropriate amendment to this Lease for the Additional Space
within
three (3) weeks after the giving of the First Refusal Notice, LESSOR shall be
entitled to lease the Additional Space to any other party on terms acceptable
to
LESSOR and such other party, However, if a lease or lease amendment for the
Additional Space with such other party is not executed within six (6) months
after the First Refusal Notice was given, the provisions of this Section 22
shall once again apply to any leasing of the Additional Space.
IN WITNESS WHEREOF, LESSOR AND LESSEE, intending to be legally bound
hereby, have caused this Lease to be executed by their respective duly
authorized officers or partners, as the case may be, as of the day and year
first above written,
LESSOR:
580 WINTER STREET LIMITED PARTNERSHIP
By its General Partner,
Kullenberg Development Inc.
By: /s/
Its President
LESSEE:
HARTE-HANKS COMMUNICATIONS, INC.
(d/b/a HARTE-HANKS COMMUNITY
NEWSPAPERS, MASSACHUSETTS)
By: /s/
Its Publisher
and
By: /s/
Its Senior Vice President; Secretary
<PAGE>
FIRST AMENDMENT OF LEASE
TIES AGREEMENT, made this / day of September, 1992, by and between 580
Winter Street Limited Partnership, a Massachusetts limited partnership having
a
usual place of business at 30 Federal St., Boston, Massachusetts ("Landlord"),
and Harte Hanks Communications, Inc., a Delaware Corporation d/b/a Harte-Hanks
Community Newspapers, Massachusetts ("Tenant") having a usual place of
business
at 580 Winter Street, Waltham, Massachusetts.
WITNESSETH THAT:
WHEREAS, Landlord has leased to Tenant and Tenant has hired from Landlord
a portion of the first floor of the building located at 580 Winter Street,
Waltham, Massachusetts, all as more particularly described and set forth in a
certain Lease Agreement dated March 20, 1990 (the "Lease").'
WHEREAS, the parties wish to add additional rental area to the Premises,
subject to the terms and conditions hereof;
NOW, THEREFORE, for the good and valuable consideration by each party paid
to the other, and in further consideration of the foregoing premises and the
mutual obligations set forth herein, the parties hereby agrees as follows:
1. All capitalized words or terms used in this Agreement shall have the
same meaning as in the Lease unless otherwise specifically provided herein.
2. The area of approximately 1,259 usable square feet on the first
floor of the Building shown on the plan attached hereto as Exhibit A and made
a
part hereof (hereinafter referred to as the "Expansion Area") shall be added
to
and included in the Leased Premises and shall become subject to all terms and
conditions of the Lease as fully as if it had originally been part of the
Leased
Premises, except as otherwise herein provided. As a result of the addition of
the Expansion Area, the Leased Premises leased by Tenant shall consist of
approximately 25,734 square feet of Rentable Floor Area on the first floor.
3. The Base Rent is hereby amended to include also the additional
rentable square footage of the Expansion Area with an increase of the Base
Rent
for the Base Term of Eight Thousand Eight Hundred and Thirteen Dollars
($8,813.00) per year payable in advance in equal monthly installments of Seven
Hundred and Thirty Four Dollars ($734.42) The Rent Commencement Date for the
Expansion Area shall be September 1, 1992.
4. Tenant accepts the Expansion Area in present conditions as is,
without any Improvement required by Landlord.
Except as modified by this Agreement, the Lease is hereby ratified and
confirmed. Unless the context requires otherwise, all terms used herein shall
be construed in conformity with the applicable provisions of the Lease.
In witness whereof, Landlord and Tenant have executed this instrument
under seal as of the day and year first above written.
WITNESS: LANDLORD: 580 Winter Street
Limited Partnership
TENANT: By: Kullenberg Development Inc.
Harte Hanks Communications, Inc. general partner
(d/b/a Harte Hanks Community
Newspapers, Massachusetts)
By: /s/ By: /s/
Lars Borgwing
President
<PAGE>
SECOND AMENDMENT OF LEASE
THIS AGREEMENT, made this 3rd day of October, 1994, by and between 580
Winter Street Corp., a Massachusetts Corporation having a usual place of
business at 30 Federal St., Boston, Massachusetts (successor-in-interest to
580
Winter Street Limited Partnership) (the "Landlord"), and Harte Hanks
Communications, Inc., a Delaware Corporation d/b/a Harte-Hanks Community
Newspapers, Massachusetts (the "Tenant") having a usual place of business at
580
Winter Street, Waltham, Massachusetts.
WITNESSETH THAT:
WHEREAS, Landlord has leased to Tenant and Tenant has hired from Landlord
a portion of the first floor of the building located at 580 Winter Street,
Waltham, Massachusetts, consisting of approximately 25,734 square feet of
rentable floor area, all as more particularly described and set forth in a
certain Lease Agreement dated March 20, 1990, as amended by First Amendment of
Lease dated September 1, 1992. (the "Lease"); and
WHEREAS, the Tenant wishes to extend the term of the Lease for the First
Extension Term subject to the terms and conditions hereof,
NOW, THEREFORE, for the good and valuable consideration by each party paid
to the other, and in further consideration of the foregoing premises and the
mutual obligations set forth herein, the parties hereby agrees as follows:
1. All capitalized words or terms used in this Agreement shall have the
same meaning as in the Lease unless otherwise specifically provided herein.
2. Landlord hereby acknowledges that Tenant has exercised its right to
extend the term of the Lease with respect to Tenant's existing space and the
First Extension Term. The Lease shall be automatically so extended at the
expiration of the Base Term unless the Lease shall have been sooner terminated
pursuant to its terms. The first Extention Term should commence on July 11,
1995 and end on July 10, 1998.
3. The annual Base Rent for the Leased Premises for the First Extension
Term shall be at the annual rate of $13.00 per rentable square foot.
($334,542.00 per annum or $27,878.50 per month.)
4. Tenant shall also pay during the First Extention Term additional
rent as set forth in Section 6 of the Lease; provided however, the charge for
management service in Section 6 (c) (4) shall be at an annual rate of $0.45
per
rentable square foot ($11,580.30).
Except as modified by this Agreement, the Lease is hereby ratified and
confirmed. Unless the context requires otherwise, all terms used herein shall
be construed in confirmity with the applicable provisions of the Lease.
In witness whereof, Landlord and Tenant have executed this instrument
under seal as of the day and year first above written.
TENANT LANDLORD: 580 Winter Street Corp.
Harte Hanks Communications, Inc. (d/b/a Harte Hanks Community Newspapers,
Massachusetts
By: /s/
By: /s/
LEASE AGREEMENT
By and Between
580 Winter Street Corp.,
LANDLORD
and
MFS Intelenet of Massachusetts, Inc.,
TENANT
October 20th, 1994
LEASE AGREEMENT
This LEASE made and entered into this 20th day of October, 1994, by and
between 580 Winter Street Corp., a Massachusetts corporation having a usual
place of business c/o WASA Management, 30 Federal Street, Boston, MA 02110
(hereinafter the "Landlord"), and MFS Intelenet of Massachusetts, Inc., a
Delaware corporation having a usual place of business at One Tower Lane, Suite
1600, Oakbrook Terrace, IL 60181 (hereinafter the "Tenant").
1. Premises and Exclusions: In consideration of the rents and covenants
herein stipulated to be paid and performed by Tenant and upon the terms and
conditions herein specified, Landlord hereby leases to Tenant, and Tenant
hereby
leases from Landlord, the following-described premises:
A portion of the first floor of the building located at 580 Winter Street
in Waltham, Massachusetts (hereinafter the "Building") consisting of
approximately 15,252 square feet of rentable area and a portion of the roof
consisting of approximately 2,500 usable square feet (hereinafter the
"Premises") as shown on Exhibit "A" attached hereto, subject to and with the
benefit of all easements, agreements, restrictions and encumbrances now of
record, to the extent in force and applicable. The Building, together with
the
parcel of land on which the Building is located, may be referred to
hereinafter
as the "Property".
The Premises exclude exterior faces of exterior walls, the common
stairways and stairwells, fan rooms, electric and telephone closets, janitor
closets, freight elevator vestibules, and pipes, ducts, conduits, wires and
appurtenant fixtures serving other parts of the Building (exclusively or in
common).
Tenant shall have, as appurtenant to the Premises, rights to use in common
with others entitled thereto (subject to reasonable rules of general
applicability to tenants of the Building from time to time made by Landlord of
which Tenant is given notice): (a) the common lobbies and corridors of the
Building, and the pipes, ducts, conduits, wires and appurtenant meters and
equipment serving the Premises in common with others; (b) common walkways
necessary to access the Building; (c) if the Premises include less than the
entire rentable floor area of any floor, the common toilets and corridors on
such floor and serving the Premises; and (d) eight (8) undesignated parking
spaces in the rear parking lot (with the right to add up to seven additional
undesignated. parking spaces upon written notice to Landlord) and one (1)
loading dock, such parking spaces and loading dock to be in the location shown
on Exhibit A, subject to rights of others, if any, to exclusive use of parking
and loading areas, but which exclusive use of others will not interfere with
the rights and use of such parking spaces and loading dock herein granted to
Tenant.
Landlord reserves for the benefit of Landlord and other occupants of the
Building, the right, from time to time, without unreasonable interference with
Tenant's office use: (a) to install, use, maintain, repair, replace and
relocate for service to the Premises and other parts of the Building, or
either, pipes, ducts, conduits, wires and appurtenant fixtures, wherever
located in the Premises or Building provided the same are not located above,
below or through
Tenant's switch facility; and (b) to alter or relocate any other common
facility
provided same does not materially and adversely affect the operation of
Tenant's
switch facility. Installations, replacements and relocations referred to in
clause (a) above shall be located to the extent practicable in the central
core area of the Building, above ceiling surfaces, below floor surfaces or
within perimeter walls of the Premises.
2. Use: Throughout the Term (hereinafter defined) of this Lease, Tenant
shall continuously use and occupy the Premises for general and executive
offices, warehousing and the installation, operation and maintenance of
telecommunications equipment and transmission facilities, including but not
limited to, a switch facility and customer collocation provising equipment,
and
other uses normally related thereto (the "Permitted Use") and for no other
purpose.
Tenant at its sole expense shall comply with all laws, rules, orders and
regulations of federal, state, county and municipal authorities and with any
direction of any public officer or officers, pursuant to law, which will
impose
any duty upon Landlord or Tenant with respect to or arising out of Tenant's
use
or occupancy of the Premises. If Tenant receives notice of any violation of
law, ordiance, order or regulation applicable to the Premises, it shall give
prompt notice thereof to the Landlord.
Tenant shall not injure, overload, deface or commit waste in the Premises,
or any part of the Building, nor permit the occurrence of any nuisance therein
or, unless otherwise permitted herein, the emission therefrom of any
objectionable noise or odor, nor use or permit any use of the Premises which
is
improper, offensive, contrary to law or ordinance or which is liable to render
necessary any alterations or additions in the Building, nor obstruct in any
manner any portion of the Building or appurtenant land. Tenant may not,
without
Landlord's prior written consent, install in the Premises any water fountains,
refrigerators, sinks or cooking equipment, provided that Landlord's consent
will
not be unreasonably withheld with respect to items designed for the
convenience
of Tenant's employees and further provided that special venting or other
matters
are not required in connection therewith.
3. Term. Subject to the terms, covenants, agreements and conditions
contained herein, Tenant shall have and hold the Premises for an initial term
(the "Term") of fifteen (15) years and six (6) months, commencing upon the
date
of delivery of the Premises to Tenant after completion of Landlord's Pre-
Commencement Work pursuant to Section 7 hereof (the "Commencement Date").
Tenant shall be responsible for the payment of additional rent and all
other charges hereunder beginning on the Commencement Date. Tenant shall be
responsible for the payment of Basic Annual Rent (hereinafter defined) on the
Rent Commencement Date (hereinafter defined). As used herein, the term
"lease year" shall mean each twelve (12) month period during the
Term,
commencing on the Commencement Date.
3.1 Extension: So long as Tenant is not in default hereunder, and no
event has occurred which, with the passage of time, could ripen into
default, Tenant shall have the option to extend the Term for two (2) extended
terms of five (5) years each (the "Extended Terms"). The Extended Term(s)
shall
commence immediately following the end of any then existing Term. Tenant may
exercise its option to extend for any Extended Term by giving written notice
to
Landlord at any time during the then existing Term of the Lease, but no later
than twelve (12) months prior to the end of the then existing Term. All terms
and conditions applicable during the Term shall apply during any Extended
Term(s), except for Basic Annual Rent which shall be as provided below. If
Tenant fails to give such notice exercising its option for the Extended
Term(s)
within the time provided above, time being of the essence, this Lease shall
automatically expire at the end of the then existing Term (unless sooner
terminated as provided herein).
4. Basic Annual Rent: Security Deposit:
(a) Tenant shall not be obliged to pay Basic Annual Rent for the first
six (6) months of the first lease year of the Term, (ii) the first one (1)
month
of the eleventh (11th) lease year of the Term, and (iii) the final two (2)
months of the final year of the Term, as extended if applicable (collectively,
the "Free Rent Period"). The day on which Basic Annual Rent shall be due
shall
be known as the "Rent Commencement Date".
(b) Tenant covenants to pay to Landlord, Basic Annual Rent as
follows:
Lease Years 1-10 - ($7.50 per square feet of rentable area)
- - $114,390.00 per annum, or $9,532.50 monthly; and
Lease Years 11-15.5 - ($9.50 per square feet of rentable
area) - $144,894.00 per annum, or $12,074.50 monthly.
Basic Annual Rent for the seventh month of the First Lease Year shall be
payable on the execution of this Lease.
In the event of the commencement or termination of this Lease, other than
on the first or last day of a calendar month, Basic Annual Rent, additional
rent
and other charges shall be appropriately prorated for the portion of the month
elapsed to the Commencement Date, or to and including the date of termination,
as the case may be.
(c) Tenant will pay the Basic Annual Rent, additional rent and all other
charges due hereunder on the first day of each month in advance, without set-
off, counterclaim, deduction or demand, to Landlord at the address set forth
below, or at such other place as is designated in writing from time to time by
Landlord.
(d) All payments of Basic Annual Rent, additional rent and all other
charges due hereunder shall be made to the Landlord at c/o WASA Management, 30
Federal Street, Boston, MA 02110, or such other address as Landlord may from
time to time designate by notice to Tenant.
Landlord, may at the completion of Tenant's Work (as such term is defined
in Section 7 hereof), measure the Premises. Tenant's rentable area shall then
be finally computed and notice thereof shall be provided to Tenant. For the
purpose of this Lease, Tenant's rentable area shall be the product of (i) the
total usable area of the Premises excluding the portion of the Premises
located
on the roof and (ii) 1.039.
4.1 Free Rent Restriction: This Lease provides for a Free Rent Period
during which Tenant's liability for the payment of Basic Annual Rent at the
then
normal monthly rate shall be suspended. Tenant shall be credited with having
paid all sums which would otherwise be due only if, at the end of the Term of
the Lease, as it may have been extended hereunder, Tenant has fully,
faithfully,
and punctually performed all of Tenant's obligations hereunder, including the
payment of all additional rent and other charges (other than Basic Annual Rent
during the Free Rent Period) and all other monetary obligations and Tenant
shall
have, at the appointed time, surrendered the Premises in the physical
condition
required by this Lease. Tenant acknowledges that its right to receive credit
for payment which would have otherwise been due for the Free Rent Period is
absolutely conditioned upon Tenant's full, faithful and punctual performance
of
its obligations under this Lease. If Tenant defaults and does not cure within
the applicable grace period, payments of Basic Annual Rent which would
otherwise
have been due during the Free Rent Period shall immediately become due and
payable in full and this Lease shall be enforced as if there were not such
Free
Rent Period or other rent concessions. In such case, Basic Annual Rent due
for
the Free Rent Period shall be calculated based upon the full Basic Annual Rent
payable under this Lease for such lease year.
4.2 Extended Term: If Tenant exercises its option to extend the Term of
this Lease for any Extended Term, Tenant covenants to pay to Landlord, during
such Extended Term of this Lease, Basic Annual Rent equal to fair market rent
(for a five (5) year term determined as of the date which is twelve (12)
months
prior to the end of the previously existing Term) for comparable space in
buildings similar to the Building in the area of the City of Waltham in the
vicinity of the Building, but in no event shall Basic Annual Rent for such
Extended Term be less than the Basic Annual Rent for the immediately preceding
lease year of the term (the "Basic Annual Rent Floor"). It is understood and
agreed that fair market Basic Annual Rent for any Extended
Term, as determined in the manner hereinafter provided, need not be a
single rate for the entire Extended Term, but rather may be stepped over the
course of the Extended Term.
Landlord shall notify Tenant as to the proposed Basic Annual Rent for the
Extended Term of this Lease at least ten (10) months prior to the end of the
Term. Landlord shall notify Tenant of Landlord's chosen appraiser together
with
Landlord's notice as to Basic Annual Rent for the Extended Term proposed by
Landlord. If Tenant disputes the amount of Basic Annual Rent so established
by
Landlord, Tenant shall either rescind its option to extend the Term or notify
Landlord of Tenant's objection to said amount within thirty (30) days after
the
receipt of Landlord's notice to Tenant, which notice shall be accompanied by
the
name of one (1) appraiser if Tenant does not rescind its option. Tenant's
failure to notify Landlord of Tenant's rescission or objection shall
constitute
Tenant's agreement to the Basic Annual Rent specified by Landlord. If Tenant
so
notifies Landlord of Tenant's objection, then the amount of Basic Annual Rent
for each year of the Extended Term shall be decided by three (3) appraisers,
one
(1) selected by Landlord, one (1) selected by Tenant, and one (1) selected by
the first two (2) appraisers selected. Each party shall pay for the appraiser
selected by it and the cost of the third appraiser shall be divided equally
between the parties. In no event may any appraiser determine fair market rent
to be less than the Basic Annual Rent Floor.
Each appraiser shall have at least ten (10) years experience in the
management, ownership and/or appraisal of property similar to the Building in
the City of Waltham. If two (2) appraisers are able to agree upon the Basic
Annual Rent for each year of the Extended Term, then the Basic Annual Rent
shall
be as determined by said two (2) appraisers, but only if the determination of
said two (2) appraisers is within ten percent (10%) of the determination of
the
third appraiser for each year of the Extended Term. If the foregoing
condition
is not satisfied, or if no two (2) appraisers are able to agree upon Basic
Annual Rent for each year of the Extended Term, the Basic Annual Rent for each
year of the Extended Term shall be the average of the determination of all
three
(3) appraisers, but only if the lowest determination is at least ninety
percent
(90%) of the highest determination. If this procedure cannot be followed
because the lowest determination is not ninety percent (90%) of the highest
determination, then the appraisers shall send a notice to Landlord and Tenant,
setting forth their individual determinations, and the highest such
determination for each year and the lowest such determination for each year
shall be disregarded and the remaining determination for each year shall be
deemed the Basic Annual Rent for each year of the Extended Term.
If any appraiser is not appointed as provided herein, either party may
request that such appraiser be appointed by the President of the Boston Bar
Association and the costs of any appraiser so appointed shall be equally
divided
by Landlord and Tenant.
Basic Annual Rent for each Extended Term(s) -payable in equal monthly
installments, in advance, on the first day of every month during each Extended
Term(s).
5. Operating Costs:
(a) As used in this Section, these words and terms shall have the
following meanings:
(i) "Operating Costs" shall mean all costs incurred and expenditures
paid by the Landlord in the operation and management, maintenance and repair
of
the Property, including, without limitation, the Building, common areas, and
the
land on which the Building is situated, exclusive of financing expenses, as
determined by Landlord's accountant in accordance with generally accepted
accounting principles consistently applied. Subject to subsection (ii) below,
Operating Costs include, without limitation, costs of security and janitorial
service (including costs of materials and equipment); maintenance and repairs
to
the Premises and the Property (including, without limitation, snow removal and
landscaping); payments under all service contracts relating to the operation
and
maintenance of the Property; management fees; wages, salaries, benefits,
payroll
taxes and unemployment compensation insurance for employees of Landlord below
the level of Building Supervisor or any contractor of Landlord engaged in the
cleaning, operation, maintenance or security of the Property; insurance
relating
to the Property; any capital expenditure (amortized, with interest, on such
reasonable basis as Landlord shall determine) made by Landlord for the purpose
of reducing other operating expenses or complying with any governmental
requirement arising after the date hereof (collectively the "Permitted Capital
Expenditures'); legal fees related to the management and operation of the
Property; auditing expenses, payments other than Real Estate Taxes (as
hereinafter defined) to the City of Waltham (including, but not limited to,
water and sewer use charges, fire service fees and other user fees), supplies
and all other expenses customarily incurred in connection with the operation
of
first class retail/office buildings.
(ii) "Operating Costs" shall not include the following:
1. costs incurred in connection with the original construction of the
Building or in connection with any major change in the Building, such as
adding
or deleting floors;
2. interest, principal, late charges, default fees, prepayment
penalties or premiums on any debt owed by Landlord, including any mortgage
debt,
and depreciation;
3. costs of correcting defects in or inadequacy of the initial design
or construction of the Building;
4. expenses directly resulting from the negligence of the Landlord, its
agents, servants or employees;
5. legal fees, space planners fees, real estate brokers' leasing
commissions and advertising expenses incurred in connection with the original
development or original leasing of the Building or future leasing of the
Building;
6. costs for which Landlord is reimbursed by insurance by its carrier
or Tenant's carrier or by anyone else;
7. any bad debt loss, rent loss, or reserves for bad debts or rent
loss;
8. costs associated with the operation of the business of the
partnership or corporation which constitutes Landlord, as the same are
distinguished from the costs of operation of the Building, including
partnership
or corporation accounting and legal matters, costs of defending any lawsuits
with any mortgagee (except as the actions of Tenant may be the issue), costs
of
selling, syndicating, financing, mortgaging or hypothecating any of Landlord's
interest in the Building, costs (including attorney fees and costs of
settlement
judgments and payments in lieu thereof) arising from claims, disputes or
potential disputes in connection with potential or actual claims, litigation
or
arbitrations respecting Landlord and/or the Building;
9. the wages and benefits of any employee who does not devote
substantially all of his or her time to the Building unless such wages and
benefits are prorated to reflect time spent on operating and managing the
Building vis-a-vis time spent on matters unrelated to operating and managing
the
Building;
10. fines, penalties and interest;
11. amounts paid as ground rental by Landlord;
12. costs of compliance with any handicap or other subsequent
governmental code regulations, including ADA that are attributable to a
particular tenant in the building other than Tenant;
13. costs of compliance with applicable laws arising from the presence
of hazardous materials or substances in or about the Building, or the site
upon
which the Building is situated, including without limitation, hazardous
substances in the ground water or soil and the removal of asbestos-containing
materials; provided, however, that Tenant shall be liable and responsible for
such costs if attributable to Tenant pursuant to Section 35 of the Lease;
14. costs paid to Landlord or to affiliates of Landlord for services in
the Building including management fees to the extent the same exceed or would
exceed the costs for such services if rendered by unaffiliated third parties
on
a competitive basis;
15. any compensation paid to clerks, attendants or other persons in
commercial concessions operated by Landlord or in any parking areas;
16. rentals and other related expenses incurred in leasing air
conditioning systems, elevators or other equipment ordinarily considered to be
of a capital nature if purchased, except equipment not affixed to the Building
which is used in providing janitorial or similar services;
17. all items and services for which Tenant or anyone else reimburses
Landlord;
18. costs arising from Landlord's political or charitable contributions;
19. costs arising from latent defects in the Building or improvements
installed by Landlord;
20. costs for which Landlord has been compensated by a management fee;
21. Landlord's general corporate overhead and general and administrative
expenses; and
22. costs incurred by Landlord due to the violation by Landlord of the
terms and conditions of any lease of space in the Building.
23. capital expenditures, except the Permitted Capital Expenditures.
(iii) "Operating Cost Statement" shall mean a statement in writing signed
by Landlord, setting forth the actual Operating Costs incurred by Landlord for
a
specified computation year pursuant to this Section. Landlord shall use
reasonable efforts to deliver the Operating Cost Statement to Tenant within
ninety (90) days after the end of the computation year.
(b) Tenant shall pay to Landlord, as additional rent for each calendar
year, Tenant's proportionate share of Operating Costs. Tenant's proportionate
share of Operating Costs shall be 19.4%, determined by dividing 15,252, being
the number of rentable square feet leased by Tenant, by 78,680, being the
number
of rentable square feet in the Building. Tenant's proportionate share of
Operating Costs shall be subject to adjustment in the event the rentable
square
footage leased by Tenant or the rentable square footage in the Building either
increases or decreases. Such amount shall be due and payable within thirty
(30)
days following receipt by Tenant of the Operating Cost Statement for such
year.
Commencing on the first day of the first calendar month of the first lease
year of the Term, and on the first day of each calendar month thereafter
during
the Term of this Lease, Tenant shall pay to Landlord, as estimated payments of
Tenant's proportionate share of Operating Costs for such calendar year, one-
twelfth (1/12) of the amount reasonably estimated in good faith by Landlord to
be Tenant's proportionate share of Operating Costs for such year. Tenant
shall
have the right to review Landlord's estimate of Operating Costs. Such
payments
shall be credited to the sum finally determined to be payable for the calendar
year pursuant to the Operating Cost Statement, with the excess estimated
payments, if any, paid to Tenant within thirty (30) days after delivery of the
Operating Cost Statement.
If this Lease shall commence or terminate other than on the first or last
day of a calendar year, Tenant shall be liable for only that portion of its
proportionate share of Operating Costs for such calendar year represented by a
fraction, the numerator of which is the number of days of the Term, as it may
be
extended hereunder, which falls within the calendar year and the denominator
of
which is three hundred sixty-five (365).
Any obligations under this Section of Tenant which shall not have been
paid at the termination or earlier expiration of the Term of this Lease shall
survive such termination or earlier expiration and shall be paid when and as
the
amount of the same shall be determined together with interest thereon at the
rate set forth in Section 20(d).
Tenant shall have the right, at Tenant's expense, exercisable by written
notice to Landlord within nine (9) months following receipt of the Operating
Cost Statement for a specified computation year, to review Landlord's books
and
records with respect to such Operating Cost Statement.
6. Real Estate Taxes:
(a) As used in this Section, these words and terms shall have the
following meanings:
(i) "Real Estate Taxes" shall mean all payments for all taxes,
assessments and betterments levied, assessed or imposed by any
governmental authority upon or against the Property or Building or payments in
lieu thereof, including reasonable expenses, which shall include without
limitation, fees of attorneys, appraisers and other consultants incurred in
connection with any efforts to obtain abatements or reductions or to assure
maintenance of Landlord's taxes for any tax fiscal year wholly or partially
included in the Term. If, at any time during the Term of this Lease, any tax
or
excise on rents or other taxes, however described, are levied or assessed
against Landlord with respect to the rent reserved hereunder, either wholly or
partially in substitution for, or in addition to, real estate taxes assessed
or
levied on the Property or Building, or payments in lieu thereof, such tax or
excise on rents shall be included in Real Estate Taxes; however, Real Estate
Taxes shall not include franchise, estate, inheritance, succession, capital
levy, transfer, income or excess profits taxes assessed to Landlord. Real
Estate Taxes shall further not include interest, penalties, or late charges
associated with any late payment of Real Estate Taxes by Landlord, unless
caused by Tenant.
(ii) "Real Estate Tax Statement" shall mean a statement in writing signed
by Landlord, setting forth the Real Estate Taxes paid by or to be paid for a
specified computation period pursuant to this Section accompanied by a copy of
the applicable tax bill.
(iii) "Tax Year" shall mean the fiscal tax year of the City of Waltham,
Massachusetts.
(b) For each Tax Year during the Term of this Lease, Tenant shall
pay to Landlord, as additional rent, Tenant's proportionate share of Real
Estate Taxes. Tenant's proportionate share shall be 19.4%, determined by
dividing 15,252, being the number of rentable square feet leased by Tenant, by
78,680, being the number of rentable square feet in the Building. Tenant's
proportionate share of Real Estate Taxes shall be subject to adjustment in the
event the rentable square footage leased by Tenant or the rentable square
footage in the Building either increases or decreases. Such amount shall be
due
and payable fifteen (15) days following receipt by the Tenant of the Real
Estate
Tax Statement for a tax period.
If this Lease shall commence or terminate other than on the first or last
day of a Tax Year, Tenant shall be liable for only that portion of Real Estate
Taxes in respect of such year represented by a fraction the numerator of which
is the number of days of the Term which fall within the Tax Year and the
denominator of which is three hundred sixty-five (365).
Any obligation under this Section of Tenant which shall not have been paid
at the expiration of the Term of this Lease, as it may have been extended,
shall
survive such expiration and shall be paid when and as the amount of the same
shall be determined together with interest thereon at the rate set forth in
Section 20(d) from the date the payment was first due to Landlord.
Tenant's proportionate share of Operating Costs and Real Estate Taxes
shall be determined on the first day of the applicable calendar year for
Operating Costs and the first day of the Tax Year for applicable Real Estate
Taxes based on an application of the above-referenced fractions on such dates.
7. Preparation for Occupancy:
(a) Landlord's Work. Prior to the Commencement Date, Landlord shall
deliver the Premises in a "as is', "where is" condition except for Landlord's
Pre-Commencement Work as described in Exhibit B attached hereto ("Landlord's
Pre-Commencement Work"). Subject to delays due to governmental regulation,
unusual scarcity of or inability to obtain labor or materials, labor
difficulties, casualty, weather, or other causes reasonably beyond Landlord's
control or attributable to Tenant's action or inaction, Landlord shall use
reasonable speed and diligence in the construction of the work to be
undertaken
by Landlord in the Premises, and shall use diligent efforts to deliver the
Premises to Tenant within four (4) weeks after Landlord has obtained approval
from the City of Waltham to undertake Landlord's Pre-Commencement Work.
Subject
to the delays specified in the preceding sentence, Landlord shall, at its own
cost and expense, use reasonable speed and diligence to complete the work
described in Exhibit B within six (6) months following the Commencement Date.
("Landlord's Post Commencement Date Work"). Landlord's failure to complete
Landlord's Pre-Commencement Work and/or Landlord's Post Commencement Date Work
within the time periods specified herein, for any reason, shall not give rise
to
any liability of Landlord hereunder, except for gross negligence or
wilful misconduct, shall not constitute a Landlord's default, shall not
affect the validity of this Lease, and shall have no effect on the beginning
or
end of the Term as otherwise determined hereunder or on Tenant's obligations
associated therewith. (Landlord's Pre-Commencement Work and Landlord's Post
Commencement Date Work shall hereinafter sometimes collectively be referred to
as "Landlord's Work.")
Landlord's Post Commencement Date Work shall be treated as having been
substantially completed on the date on which the work described in Exhibit "B"
has been substantially completed except for minor items of construction work
and
minor mechanical adjustments of equipment and fixtures which can be completed
after occupancy has been taken without causing material interference with
Tenant's use and occupancy of the Premises ("Punch List Items").
Landlord shall complete as soon as conditions practically permit all Punch
List Items, and Tenant shall cooperate with Landlord in providing access as
may
be required to complete such work in a normal manner. Landlord shall permit
Tenant access for installing Tenant's fixtures, communications systems,
computer
equipment and appurtenances, and other equipment in portions of the Premises
prior to substantial completion when it can be done without material
interference with remaining work and with the maintenance of harmonious labor
relations.
(b) Tenant's Work. Tenant will engage, at its expense (except as
provided below), its own architect or engineer to produce plans and
specifications ("Plans and Specifications") for the "build-out" of the
Premises
required to prepare the Premises for the conduct of Tenant's business therein
("Tenant's Work"). Without limiting the generality of the foregoing, Tenant's
Work shall also include the construction of all (i) demising walls within or
around the Premises; (ii) common bathrooms and the corridors leading thereto
and
(iii) accessways leading to the Premises, excluding demising walls leading to
the loading dock referred to in Section 1 above. The Plans and Specifications
shall set forth, among other things, (i) specifications for the use, operation
and testing of Tenant's emergency generator and associated fuel tank and (ii)
the items of Tenant's Work which Tenant shall be required to remove from the
Premises at the expiration or earlier termination of this Lease ("Tenant's
Removal Items"). Landlord shall provide, at Tenant's expense, temporary power
to the Premises from existing sources during construction of Tenant's Work.
Prior to the commencement of Tenant's Work, Tenant shall deliver the Plans
and Specifications to Landlord for its written approval, which approval shall
not be unreasonably withheld or delayed. Landlord shall respond to Tenant's
request for approval of its Plans and Specifications within ten (10) business
days after receipt thereof; the failure of Landlord to respond within said
period shall constitute approval of the Plans and Specifications. In the
event
that Landlord shall not approve the Plans and Specifications, Landlord shall
notify Tenant of its objections thereto. Landlord and Tenant shall thereafter
work cooperatively and in good faith to reach agreement upon mutually
acceptable
Plans and Specifications. Landlord shall not be deemed to be unreasonably
withholding its consent to the Plans and Specifications if, among other
things:
(I) the Plans and Specifications do not contain sufficient detail to
enable Landlord to evaluate the effect including, without limitation, noise,
vibration, odor and emissions, on the Building and Landlord's other tenants of
Tenant's installation and testing of Tenant's emergency generator and
associated
fuel tank (the "Generator Effect");
(ii) the Generator Effect will, in Landlord's reasonable judgment, place
the safety of the Building or Landlord's other tenants at risk; or
(iii) Tenant's Work will, in Landlord's reasonable judgment, negatively
effect the exterior appearance of the Building.
If, despite diligent and good faith efforts, Landlord and Tenant are
unable to agree upon the Plans and Specifications within thirty (30) days
after
Tenant has first submitted the Plans and Specifications to Landlord, then
either
party shall have the right to terminate this Lease upon written notice to the
other within five (5) days after the end of such thirty (30) day period,
without
further recourse to either party. If Tenant shall so exercise its right to
terminate this Lease, then Tenant shall immediately reimburse Landlord for (i)
the cost of Landlord's Work through the date of termination and (ii) all
compensation paid to The Niles Company and CB Commercial Real Estate Group in
connection with this Lease.
Submission of the Plans and Specifications to Landlord for approval shall
be deemed a warranty by Tenant and Tenant's architect, jointly and severally,
that all work described in the Plans and Specifications (i) complies with all
applicable laws, regulations, building codes, and reasonable and prudent
design
standards for a first-class building, (ii) does not in any manner affect the
structural or exterior elements of the Building except as specifically
provided
therein, and (iii) is in all respects compatible with the mechanical,
electrical
and structural components and systems of the Building (including applicable
loading limits). Landlord's approval of the Plans and Specifications shall
signify Landlord's consent to the work thereon only and shall not result in
any
responsibility of Landlord concerning such work.
Tenant shall engage its own contractor, subject to Landlord's approval which
approval shall not be unreasonably withheld or delayed, to perform Tenant's
Work, at Tenant's sole cost and expense, and Tenant agrees to complete
Tenant's
Work using reasonable speed and diligence. Tenant shall not be responsible
for
Landlord's own costs related to review, construction management or supervision
fees, costs or expenses related to Tenant's Work.
All of Tenant's Work to the Premises shall conform to the approved Plans and
Specifications and any changes thereto must be approved in writing by Landlord
which approval shall not be unreasonably withheld or delayed. Tenant's Work,
together with all repairs required to be made by Tenant Pursuant to this
Lease,
shall be made in a good and workmanlike manner Using first class materials and
shall
comply with all applicable federal, state and local codes and ordinances.
Tenant shall obtain all necessary permits from the appropriate governmental
authorities, including, without limitation, any required Certificate of
Occupancy. The contractor, subcontractors and materialmen utilized by the
Tenant to perform Tenant's Work shall be subject to Landlord's prior written
approval which approval shall not be unreasonably withheld or delayed. Tenant
agrees not to create, incur or permit any lien or other obligation to exist
against the Property or Landlord by reason of Tenant's Work and Tenant agrees
to
hold Landlord harmless from and against any and all claims and demands by
contractors or other third parties against the Property or Landlord relating
to
or arising out of Tenant's Work. Tenant will maintain insurance reasonably
acceptable to Landlord during the performance of Tenant's Work, and copies of
any such insurance policies will be provided to Landlord and any mortgagee of
Landlord, naming Landlord and any such mortgagee of Landlord as additional
insureds under such coverage.
Tenant's Work (except for Tenant's generator and associated fuel tank) shall
at
once become part of the Property and belong to Landlord and Tenant shall have
no
right or duty to remove same unless designated as Tenant's Removal Items. Any
damages so caused by the removal of any improvements made by Tenant, shall be
immediately repaired by Tenant at its sole cost and expense.
(c) Landlord makes no representation, express or implied, with respect to
this
Lease (including, without limiting the generality of the foregoing, the
suitability of the Premises for the Permitted Use or zoning thereof), except
as
expressly contained herein. Tenant has made its own investigation as to the
use
of the Premises and will obtain any and all licenses or permits which would be
required for the operation of Tenant's business.
(d) All construction work required or permitted by this Lease, including
Landlord's Work and Tenant's Work under this Section 7, shall be done in a
good
and workmanlike manner and in compliance with all applicable laws, ordinances,
regulations and orders and requirements of all public authorities and insurers
of the Building. Landlord, at its sole expense, shall procure all permits and
licenses required by any governing authority having jurisdiction over the
Building and the Premises to undertake and complete Landlord's Work under this
Section 7, including building permits and any Certificate of Occupancy. All
of
Tenant's work shall be coordinated with any of Landlord's Work being performed
by or for Landlord and in such manner as to maintain harmonious labor
relations.
Each party may inspect the work of the other at reasonable times and shall
promptly give notice of observed defects. Each party authorizes the other to
rely in connection with design and construction upon approval and other
actions
on the party's behalf by any construction representative of the applicable
party.
(e) Except to the extent to which Tenant shall have given Landlord notice
of
any matter in which Landlord has not performed Landlord's Work obligations
under
this Section 7 not later than the end of the ninth full calendar month after
the
Commencement Date (except for latent defects as to which the cut-off date
shall
be the end of the twelfth full calendar month after the Commencement Date),
Tenant shall be deemed conclusively to have approved Landlord's Work and shall
have no
claim that Landlord has failed to per-form any of Landlord's obligations under
this Section 7. Landlord agrees to correct or repair, at its expense. items
which are then incomplete or do not conform to Landlord's Work contemplated in
Exhibit B and as to which. in either case, Tenant shall have given notice to
Landlord, as aforesaid.
8. Improvements and Alterations:
(a) During the Term of this Lease and following completion of Tenant's
Work,
Tenant, at its own expense, may make non-structural alterations, additions and
improvements (including, without limitation, interior painting and decorating)
to the interior of the Premises which are necessary or appropriate for the
conduct of Tenant's business with Landlord's prior written consent and in
accordance with detailed working drawings and specifications describing such
work which have been submitted in advance to, and approved in writing by,
Landlord and with a contractor approved by Landlord. Landlord's consent to
such
alterations and approval of Tenant's contractor shall not be unreasonably
withheld or delayed. During the Term of this Lease, Tenant, at Tenant's own
expense, may alter the existing curtain wall on any of the facades of the
Premises to install louvers for additional outside air and/or exhaust air, at
Tenant's option, but subject to Landlord's prior written consent (such consent
not to be unreasonably withheld) and in accordance with detailed working
drawings and specifications which have been submitted in advance to and
approved
in writing by Landlord. Tenant shall pay all costs of preparing plans,
drawings
and specifications. Such alterations, additions and improvements
(specifically
excluding movable personal property installed by Tenant) are hereinafter
collectively called the "Improvements". All the Improvements, whether placed
in
or attached to or made part of the Premises prior to or during the Term of
this
Lease, shall become and be Landlord's property and, unless Landlord otherwise
elects, shall be and remain part of the Premises as of the expiration or
earlier
termination of the Lease. Landlord shall notify Tenant in writing at the time
Landlord approves Tenant's plans for Improvements of its election to require
Tenant to remove any or all of its Improvements upon the expiration or earlier
termination of this Lease. Construction of the Improvements shall be
performed
diligently and in a good and workmanlike manner and shall be expeditiously
completed in compliance with all laws, ordinances, orders, rules, regulations
and requirements. All work done in connection with the Improvements shall
comply with all requirements of insurance policies maintained by Landlord and
Tenant. Tenant, at its expense, shall procure all permits and licenses
required
by any governing authority having jurisdiction over the Premises and the
business to be conducted in the Premises. Tenant shall promptly pay all costs
and expenses of the Improvements and shall furnish indemnification bonds
against
performance, liens, costs, damages and expenses in forms and amounts
reasonably
satisfactory to Landlord, in connection with all alterations and Improvements.
At the expiration or earlier termination of this Lease, Tenant shall remove
all
of this personal property other than the Improvements, and, at the option of
Landlord, Tenant shall remove any or all of the Improvements. If Landlord
elects to have Tenant remove the Improvements, Landlord shall not require
removal of pipes, wires and the like from walls, ceilings or floors provided
that Tenant properly cuts, caps and disconnects such pipes and wires and seals
them off in a safe and lawful manner flush with the applicable wall, floor or
ceiling and redecorates the area consistent with the remainder of the
Premises.
Tenant shall maintain the
Improvements in a first class manner during the Term -of the Lease, as
extended,
and shall be responsible for any and all damages to the Premises, the
fixtures,
appurtenances and equipment of Landlord or the Building caused by the
installation, malfunction or removal of the Improvements or Tenant's Property
as
defined in Section 9 below.
(b) In order to protect the historical and architectural integrity and
appearance of the Building, Tenant shall not install any signs on the exterior
of the Building or Premises or in the interior of the Premises if visible from
the exterior of the Premises except as permitted by this paragraph or as
approved in the Plans and Specifications. All signs or lettering, if any,
visible from the exterior of the Building or from the lobby, public corridors
or
in any other common area or public place must be submitted by Tenant to
Landlord
for prior written approval of the size, color, design, and location of such
signs or lettering before installation. Tenant may hang its own window blinds
or curtains in the Premises subject to Landlord's prior written approval.
9. Property of Tenant: Subject to the provisions of this Section 9,
Tenant
may place fixtures, equipment, supplies and the like ("Tenant's Property") in
the Premises. Upon the expiration or sooner termination of this Lease, Tenant
shall remove Tenant's Property and restore the Premises to its condition prior
to installation of Tenant's Property ordinary wear and tear and loss by
insured
casualty or condemnation excepted. Tenant shall not place a load upon any
floor
of the Premises exceeding the floor load per square foot area which such floor
was designed to carry and which is allowed by law. Machines and mechanical
equipment and Tenant's other personal property shall be placed and maintained
by
Tenant, at its expense, in settings sufficient to absorb and prevent
vibration,
noise and annoyance and without overloading the electrical service available
to
the Premises or to the Building. Tenant covenants and agrees that all
Tenant's
Property of every kind, nature and description which may be in or upon the
Premises or Building, in the public corridors, or on the sidewalks, area ways
and approaches adjacent thereto, during the Term and any movement of Tenant's
Property, shall be at the sole risk and hazard of Tenant, and Tenant hereby
indemnifies and agrees to save Landlord harmless from and against any
liability,
loss, injury, claim or suit resulting directly or indirectly therefrom.
10. Maintenance and Repair:
(a) Tenant shall, at its sole cost and expense, maintain (i) the Premises,
(ii) the common bathrooms and the corridors leading thereto, and (iii) the
accessways leading to the Premises, (items (ii) and (iii) are referred to
herein
as "Maintenance Areas'), in good order, condition and repair and shall make
all
foreseen and unforeseen and ordinary and extraordinary changes and repairs
required to keep the Premises and the Maintenance Areas in good repair and
condition including, without limitation, repairs to vents, ducts, wires, fans,
outlets, doors, locks, hardware, utility lines and facilities exclusively
servicing the Premises and the Maintenance Areas, installations and equipment
on
the roof installed by Tenant, electrical, plumbing and HVAC equipment
exclusively serving the Premises and the Maintenance Areas, flooring, carpets,
walls, ceilings, fixtures and exterior and interior
glass in the Premises and the Maintenance Areas and structural portions of the
Building (including the roof) constructed or modified by or at the request of
Tenant. Tenant shall wash any dishes and perform any cleaning necessary to
maintain the Premises and the Maintenance Areas in a clean and sanitary
condition, free of all vermin, waste and fire hazards. Tenant, at its own
expense, shall supply and maintain all light bulbs, tubes, light fixtures,
globes and switches or similar devices for lighting the Premises and the
Maintenance Areas.
(b) Except as provided in (a) above, Landlord shall (D keep the roof,
exterior
walls and all structural portions of the Building so long as the same are not
affected by Tenant's Work, and the plumbing lines and sewers, electrical
systems
and utility service lines furnished by Landlord in good and serviceable
condition and repair (except for any repair or replacement occasioned by any
willful or negligent act or omission of Tenant, its servants, agents,
customers,
contractors, employees or licensees) and provided further that Landlord shall
not be obliged to repair any equipment or facilities serving the Premises
only;
(ii) keep sidewalks, parking and landscape areas, common corridors, stairways,
mechanical and electrical systems serving occupants of the Building other than
Tenant (it being understood that Landlord shall not be obliged to repair any
equipment or facilities exposed in the Premises or the Maintenance Areas or
serving the Premises and the Maintenance Areas only), and all other public
portions of the Building in serviceable repair and in a reasonably clean and
safe condition and make repairs to all pipes, ducts, conduits, wires and
appurtenant fixtures which run through Tenant's Premises but service other
tenants, but not Tenant; and (iii) comply with applicable governmental rules,
regulations, laws and ordinances affecting the Building, unless the violation
is
caused by Tenant or Tenant's use of the Premises or Tenant's willful or
negligent act or omission, in which case, compliance shall be at the expense
of
the Tenant. Landlord reserves the right to interrupt, curtail, stop and
suspend
the furnishing of any services and the operation of the plumbing, electrical,
heating, ventilating and air-conditioning system when necessary by reason of
accident or emergency or for repairs, alterations, replacements or
improvements
which may become necessary or when it cannot secure supplies or labor, or by
reason of any other cause beyond its control, without liability or any
abatement
of Basic Annual Rent, additional rent or other charges being due thereby. If,
due to causes within Landlord's reasonable control, services to the Premises
are
interrupted or the operation of the plumbing, electrical or HVAC system is
suspended for a period exceeding five (5) consecutive business days and such
interruption or suspension renders all or a portion of the Premises unusable
for
the Permitted Use, Tenant shall receive an equitable abatement of Rent for the
period commencing on the sixth (6th) consecutive business ,day and ending on
the
date such service is restored.
(c) In the event Landlord fails to commence to repair a roof or ceiling
leak
or other similar problem within twenty-four (24) hours following receipt of
written notice from Tenant (which notice may be delivered by hand and then
given
as set forth in Section 24), and diligently prosecute such repair to
completion,
Tenant may, subject to the following conditions, cause the necessary repairs
to
be performed at Landlord's expense. With respect to Tenant's exercise of self
help, the following shall apply: (i) Tenant may exercise such self help rights
only in the event of an emergency wherein there exists an imminent-threat of
damage or harm to persons or
property or cessation of operation of Tenant's switch facility; (ii) if Tenant
elects to exercise its self help rights as set forth above, Tenant shall cure
such defects as may be necessary to abate the emergency, even if such cure is
temporary in nature, such that Landlord shall thereafter have the opportunity
to
exercise a permanent cure; and (iii) Tenant agrees that the performance of any
self help rights shall be limited to reasonable and competitive amounts.
11. Services:
(a) The Landlord shall provide:
(i) Access to the Premises twenty-four (24) hours per day, 365 days per
year;
provided, however, that outside normal business hours access shall be under
conditions which will insure the security of the Building.
(ii) Removal of snow and ice from the entry to and sidewalks of the
Building.
(b) Landlord shall provide and maintain adequate connections with the
local
water supply and sewerage systems. Tenant shall install separate meters for
Tenant's electrical and gas service and shall pay the cost of such meters and
connections and shall pay the utility company directly for all fuel,
electrical,
gas and other utilities (other than water) used by Tenant on the Premises and
the Maintenance Areas. With respect to water charges, Tenant shall pay
Landlord
directly for Tenant's Share of the total amounts for the same within 30 days
after billing by Landlord. Upon request by Tenant, Landlord shall provide
reasonable evidence indicating that all such charges for water are based upon
compatible uses for all tenants in the Building. Landlord agrees that, if any
tenant of the Building (including Tenant) uses a disproportionate amount of
water because of the specific nature of such tenant's business, Tenant's Share
shall be equitably adjusted accordingly.
12. Inspection: Landlord and its authorized representatives shall have the
right, at all reasonable times and upon reasonable advance notice, to enter
the
Premises to inspect the same (and at all times during an emergency), to make
repairs or replacements therein as required by this Lease, to exhibit the
Premises to prospective tenants, lenders or others; provided, however, that
Landlord shall use all reasonable effort not to unduly disturb the Tenant's
use
and occupancy. Landlord shall not be liable to Tenant in any manner for any
expense, loss or damage occurring by reason of the aforesaid entries, nor
shall
the exercise of any such right be deemed an eviction or disturbance of
Tenant's
use or possession.
13. Casualty:
(a) If the Premises, or any part thereof, shall be damaged by fire or
other
casualty, Tenant shall give prompt notice to Landlord. Upon receipt of such
notice, Landlord (except as provided in subparagraph (b), (b)(i), (b)(ii), and
(b)(iii)
below), shall proceed with reasonable diligence, and at its expense (but only
to
the extent of insurance proceeds recovered or recoverable and made available
to
Landlord by any mortgagee of the Building), to cause such damage to be
repaired
and restored as nearly as possible to the condition in which they were
immediately prior to the casualty. All repairs to and replacements of
Tenant's
Work, Tenant's Property and Improvements as defined in Section 8 shall be made
by and at the expense of Tenant.
(b) If the Premises, or any part thereof, shall have been rendered unfit
for
use and occupation hereunder by reason of such damage, the Basic Annual Rent,
or
a just and proportionate part thereof, according to the nature and extent to
which the Premises shall have been so rendered untenantable, shall be
suspended
or abated until the Premises (except Tenant's Work, the Improvements and
Tenant's Property which are to be repaired by or at the expense of Tenant),
shall have been restored as nearly as practicable to the condition in which
they
were immediately prior to such fire or other casualty, provided that
restoration
can be completed in accordance with applicable laws and regulations; provided,
however that notwithstanding the foregoing, Tenant shall not be entitled to an
abatement if the damage is by Tenant's Property and Improvements including,
without limitation, any fuel tank or generator. Landlord shall not be liable
for delays in the making of any such repairs which are due to governmental
regulations, casualties and strikes, unavailability of labor and materials,
and
other causes beyond the control of Landlord, nor shall Landlord be liable for
any inconvenience or annoyance to Tenant or injury to the business of Tenant
resulting from reasonable delays in repairing such damage. If the Premises
are
damaged by fire or other casualty and said Premises shall not have been
restored
to substantially the same condition which they were in prior to such fire or
other casualty within one hundred eighty (180) days after such fire or other
casualty or are not capable of being so restored, as reasonably determined- by
an independent engineer selected by Landlord, then Tenant may terminate this
Lease by notice to Landlord within fifteen (15) days after the end of said one
hundred eighty (180) day period, without further recourse to either party.
(b)(i) If more than twenty-five percent (25%) of the Building is damaged by
such
fire or other casualty, whether or not the Premises shall have been damaged by
such fire or other casualty, or (ii) if more than fifty percent (50%) of the
Premises is damaged by fire or other casualty, or (iii) if restoration cannot
be
achieved on account of inadequate insurance proceeds, governmental
restrictions
or otherwise, then this Lease and the Term hereof may be terminated at the
election of Landlord by giving written notice of termination to the Tenant
within sixty (60) days following such fire or other casualty, the termination
date being specified in such notice as a date not less than thirty (30) days
after the day on which such termination notice is given. In the event of any
such termination, this Lease and the Term hereof shall expire as of such
effective termination date and the Basic Annual Rent shall be apportioned as
of
such date.
14. Condemnation - Eminent Domain:
(a) If the Property, or any material part thereof, shall be taken or
appropriated by eminent domain or shall be condemned for any public or quasi-
public use, or by reason of any transfer of all or any material part of the
Building, or any
interest therein made in avoidance of such a taking or 'appropriation, or (by
virtue of any taking, appropriation or condemnation) shall suffer any damage
(direct, indirect or consequential) for which Landlord or Tenant shall be
entitled to compensation, then (and in any such event) this Lease and the Term
hereof may be terminated at the election of Landlord by giving a written
notice
of termination to the Tenant within sixty (60) days following the date on
which
Landlord shall have received notice of a taking, appropriation or
condemnation,
or shall have effected such transfer.
If the entire Premises, or a portion thereof shall be so taken, appropriated,
condemned or transferred, such that Tenant shall be precluded from effectively
utilizing the Premises for its intended purpose, then (and in such event) this
Lease and the Term hereof may be terminated at the election of Tenant by
giving
a written notice of termination to Landlord within sixty (60) days following
the
date on which Tenant shall have received notice of a taking, appropriation,
condemnation, or on which Landlord shall have transferred such property.
Upon the giving of any such notice of termination by either Landlord or
Tenant,
this Lease and the Term hereof shall terminate as of the date on which
Landlord
or Tenant, as the case may be, shall be required to vacate any portion of the
area so taken, appropriated or condemned or shall be deprived of the means of
access thereto, provided, however, that Landlord in its notice of termination
may elect to terminate this Lease and the Term hereof retroactively as of the
date on which such taking, appropriation or condemnation became legally
effective. In the event of such termination, this Lease and the Term hereof
shall expire as of such effective termination date and the Basic Annual Rent
shall be apportioned as of such date.
(b) If neither party elects to terminate this Lease and the Term hereof,
Landlord shall, with reasonable diligence and at its expense (but only to the
extent of the taking award recovered or recoverable and made available to
Landlord by any mortgagees of the Building), restore the remainder of the
Premises (but not the Improvements or any of Tenant's Property), as nearly as
practicable to the condition thereof prior to such taking, appropriation or
condemnation, in which event the Basic Annual Rent shall be adjusted in a
manner
such that (i) a just proportion of the Basic Annual Rent, according to the
nature and extent of the taking, appropriation or condemnation and the
resulting
permanent injury to the Premises shall be permanently abated, and (ii) a just
proportion of the remainder of the Basic Annual Rent, according to the nature
and extent of the taking, appropriation or condemnation and the resultant
injury
sustained by the Premises, shall be abated until what remains of the Premises
(other than Tenant's Work, Improvements or any of Tenant's Property) shall
have
been restored as fully as practicable for permanent use and occupation by
Tenant
hereunder. Landlord shall not be liable for any delays in such restoration
which are due to governmental regulations, casualties, strikes, unavailability
of labor or materials, or other causes beyond Landlord's control nor shall
Landlord be liable for any inconvenience or annoyance to Tenant or injury to
the
business of Tenant resulting from reasonable delays in such restoration.
Landlord expressly reserves to Landlord and Tenant hereby assigns to Landlord
all rights to compensation and damages created, accrued or accruing by reason
of
any taking, appropriation or condemnation, except for compensation
relating to Tenant's Property and for moving expenses, provided the same are
separately awarded to Tenant without reduction of Landlord's award.
15. Injury and Damage: Landlord shall not be liable for any injury or
damages
to persons or property resulting from fire, explosion, falling plaster, steam,
gas, electricity, electrical disturbance, water, rain or snow or leaks from
any
part of the Building or from the pipes, appliances or plumbing works or from
the
roof, street or subsurface or from any other place or by dampness or by any
other cause of whatever nature, unless caused by or due to the act, omission,
fault, negligence or misconduct of Landlord, or its agents, servants or
employees; nor shall Landlord, its agents, servants or employees be liable for
any such damage caused by other tenants or persons on the Property or caused
by
construction operations of any private, public or quasi-public person; nor
shall
Landlord be liable for any latent defect in the Premises or in the Building.
16. Indemnification: Tenant hereby indemnifies and covenants to save
Landlord
harmless from and against any and all claims, liabilities or penalties
asserted
by or on behalf of any person, firm, corporation or public authority:
(i) on account of or based upon any injury to person, or loss of or damage
to
property, sustained or occurring on the Premises on account of or based upon
the
act, omission, fault, negligence or misconduct of any person other than
Landlord
or its servants, agents or employees;
(ii) on account of or based upon any injury to persons, or loss of or
damage to
property, sustained or occurring in or about the Property and other than on
the
Premises (and, in particular, without limiting the generality of the
foregoing,
on or about the elevators, stairways, public corridors, sidewalks, parking
areas, concourses, arcades, approaches, area ways, roof or other
appurtenances and facilities used in connection with the Building or the
Premises) arising out of the use and occupancy of the Building or the Premises
by the Tenant or by any other person claiming by, through or under Tenant, and
caused by the act, omission, fault, negligence or misconduct of Tenant or its
servants, agents or employees, and in addition to and not in limitation of the
foregoing subdivision (i); and
(iii) on account of or based upon (including monies due on account of) any
work
or thing whatsoever done (other than by Landlord or its contractors, or agents
or employees of either) on the Premises during the Term and during the period
of
time, if
any, prior to the Commencement Date when Tenant may have been given access to
the Premises;
and, in respect of any of the foregoing, from and against all costs, expenses
(including, without limitation, reasonable attorney's fees) and liabilities
incurred in or in connection with any such claim, or any action or proceeding
brought thereon. If any action or proceeding be brought against Landlord by
reason of any such claim, Tenant upon notice from Landlord shall at Tenant's
expense resist and defend -such action or proceeding and employ counsel
therefore reasonably satisfactory to Landlord, it being agreed that such
counsel
as may act for insurance underwriters of Tenant engaged in such defense shall
be
deemed satisfactory.
17. Insurance:
(a) Tenant covenants and agrees that from and after the date of delivery
of
the Premises from Landlord to Tenant, and during the Term of this Lease,
Tenant
will carry and maintain, at its sole cost and expense, the form of insurance
hereinafter provided for:
(i) Tenant shall keep in full force and effect Comprehensive General
Liability
Insurance including Blanket Contractual, Personal Injury, Broad Form Property
Damage, Products Liability, Completed Operations, Fire Legal Liability and
Owned, Non-owned and Hired automobile coverages, naming Landlord and Tenant
and
any designee of Landlord, as insured, with minimum limits of $1,000,000 for
property damage, $1,000,000 for injury or death of one person and $3,000,000
for
injury or death of more than one person in a single accident and from time to
time thereafter shall not be less than such higher amounts as may reasonably
be
required by Landlord for any and all claims for injury or damage to persons or
property or for the loss of life or of property occurring upon, in or about
the
Premises and the public portions of the Building used by Tenant, its
employees,
agents, contractors, customers and invitees. Tenant shall deposit a policy or
policies of such insurance, or an approved certificate thereof issued by duly
authorized agents or the carriers in question, with Landlord, at least ten
(10)
days before the
Commencement Date and renewals of same and at least thirty (30) days prior to
the expiration of any existing policies. All such policies must provide that
Landlord and any additional insured be provided with thirty (30) days prior
written notice of cancellation, reduction, or material change by the insurer.
(ii) Tenant shall keep in full force and effect All Risk insurance
including
sprinkler leakage and floor and earthquake (if floor and earthquake exposure
exists) and vandalism and malicious
mischief on a 100% replacement cost basis covering all contents, pictures and
improvements. Tenant shall deposit a policy or policies of such insurance, or
an approved certificate thereof with Landlord, providing Landlord within
thirty
(30) days notice of cancellation, reduction, or material change by the
insurer.
(iii) Tenant shall keep in full force and effect Workers' Compensation
insurance
as required by law and Employers' Liability coverage for a minimum of $100,000
per occurrence.
(iv) Tenant covenants to comply with any and all rules and regulations
applicable to the Premises issued by the Board of Fire Underwriters or by any
other body hereinafter constituted exercising similar functions and insurance
companies writing policies covering the Premises. Tenant shall pay all costs,
expenses, claims, fines, penalties and damages imposed because of failure of
Tenant to comply with this subsection (iv) and agrees to indemnify Landlord
from
all liability with reference thereto. Tenant shall, at its own cost and
expense, procure and maintain each and every permit, license, certificate or
other authorization and any renewals, extension or continuances of the same
required in connection with lawful and proper use of the Premises for Tenant's
business.
(b) Tenant will not do, or omit to do, or keep anything in, upon or about
the
Premises, the Building or any adjacent areas which may prevent the obtaining
of
any fire, liability or other insurance upon or Written in connection with the
Premises, the Building or such adjacent areas or which may make any such
insurance void or voidable or otherwise invalidate the obligations of the
insurer contained therein, or which may create any extra premiums or increase
the rate of any such insurance over that normally applicable to office
buildings
in the City of Waltham. Tenant agrees to pay to Landlord, upon demand, the
amount of any extra premiums or any increase in the rate of such insurance
which
results from Tenant's use of the Premises, whether or not Landlord has
consented
to such use. In the event that the installation of Tenant's emergency
generator
and associated fuel tank shall result in an increase in the rate of Landlord's
insurance, than Tenant shall pay the amount of any such increase in insurance
premium and such installation shall not give rise to an event of default
hereunder. If Tenant installs any electrical equipment in the Premises,
Tenant
shall, at its expense, make whatever changes are necessary to comply with the
requirements of the insurance underwriter or governmental authorities having
jurisdiction, but such changes shall only be made in accordance with the
provisions of this Lease.
(c) Landlord agrees to maintain in force during the Term an all risk
property
policy with 100% full replacement cost coverage.
18. Waiver of Subrogation:
(a) Tenant and Landlord covenant that with respect to all fire or extended
coverage insurance carried by Tenant and Landlord in connection with the
Premises or the Building, whether or not such insurance is required by the
terms
of this Lease, such insurance shall provide for the waiver by the insurance
carrier of any subrogation rights against the other party, its agents,
servants
and employees under such party's insurance policies.
(b) Notwithstanding any other provision of this Lease, (i) Landlord shall
not
be liable to Tenant for any loss or damage, whether or not such loss or damage
is caused by the negligence of Landlord, its agents, servants or employees, to
the extent that such loss or damage is covered by valid and enforceable
insurance carried by Tenant and containing subrogation waiver provisions
pursuant to paragraph (a); and (ii) Tenant shall not be liable to Landlord for
any loss or damage, whether or not such loss or damage is caused by the
negligence of Tenant or its agents, servants or employees, to the extent that
such loss or damage is covered by valid and enforceable insurance carried by
Landlord and containing subrogation waiver provisions pursuant to paragraph
(a).
19. Assignment, Mortgaging, Subletting:
(a) Tenant covenants and agrees that neither this Lease, nor the Term, nor
the
estate hereby granted, nor any interest herein or therein, will be assigned,
mortgaged, pledged, encumbered or otherwise transferred, and that neither the
Premises, nor any part thereof, will be encumbered in any manner by reason of
any act or omission of Tenant, or used or occupied, or permitted to be used or
occupied, by anyone other than Tenant and its employees, or for any use or
purpose other than as above stated, or be sublet, or offered or advertised for
subletting, without in each case, Landlord's prior written consent.
Assignment
shall include, without limitation, any transfer of the Tenant's interest in
the
Lease by operation of law, merger or consolidation of the Tenant into any
other
firm or corporation, and the transfer or sale of a controlling interest in
Tenant, whether by sale of its capital stock or otherwise. It is expressly
understood and agreed that such consent may be withheld in Landlord's sole and
absolute discretion; provided, however, Landlord's consent to a proposed
assignment or subleasing shall not be unreasonably withheld or delayed.
Landlord shall not be deemed to be unreasonably withholding its consent to
such
a proposed assignment or subleasing if:
(a) the proposed assignee or subtenant is not of a character consistent
with
Tenant's use or the operation of a first-class office/retail building; or
(b) the proposed assignee or subtenant is not of good character and
reputation; or
(c) the proposed assignee or subtenant does not possess adequate financial
capability to perform the Tenant obligations as and when due or required; or
(d) the proposed assignee or subtenant proposes to use the Premises (or
any
part thereof) for a purpose other than the purpose for which the Premises may
be
used as set forth in Section 2 hereof-, or
(e) the character of the business to be conducted or the proposed use of
the
Premises by the proposed assignee or subtenant shall (i) be likely to increase
operating expenses for the Property beyond that which Landlord now incurs for
use by Tenant, or (ii) violate or be likely to violate any provisions or
restrictions contained herein relating to the use or occupancy of the
Premises;
or
(f) there shall be existing a default under this Lease as set forth in
Section
20.
Tenant's request for consent shall include a copy of the proposed instrument
of
assignment or sublease, if available, or else a statement of the proposed
assignment or sublease in detail satisfactory to Landlord. Landlord shall
have
the option (but not the obligation), in lieu of granting its consent to a
proposed assignment or sublease, to terminate the Lease, or that portion
proposed to be assigned or subleased, effective upon the date of the proposed
assignment or sublease by giving Tenant written notice of such termination.
Notwithstanding Landlord's consent to any assignment or sublease, the
liability
of Tenant and of any guarantor of Tenant's obligations under this Lease shall
remain primary and Landlord's acceptance of Basic Annual Rent, additional rent
and other charges from persons other than Tenant shall not operate to
discharge
or in any way diminish such liability.
In the event of any such assignment or subletting, Tenant shall deliver to the
Landlord at the time of such assignment or subletting a written agreement from
the assignee, or subtenant agreeing with Landlord to perform Tenant's
obligations under the Lease.
If the Basic Annual Rent, additional rent and other charges payable to Tenant
under such assignment or sublease exceed the Basic Annual Rent, the additional
rent and other charges payable under this Lease, Tenant shall pay to Landlord,
as additional rent, one half of the amount of the excess. Landlord's
acceptance
of a check in payment of any obligations of Tenant under this Lease from a
person other than Tenant shall not be construed as an implied consent by
Landlord to an assignment of this Lease or subletting under it.
Any assignment of this Lease made hereunder shall be upon the express
condition
that the assignee and Tenant shall promptly execute, acknowledge and deliver
to
Landlord an agreement in form and substance satisfactory to Landlord whereby
the
assignee shall agree to be personally bound by the terms, covenants,
and conditions of this Lease on Tenant's part to be performed and whereby the
assignee shall expressly agree that the provisions of this Section shall,
notwithstanding such assignment or transfer, continue to be binding upon it
with
respect to all future assignments and transfers.
Any sublease of the Premises, or any part thereof, shall be expressly subject
to
the terms of this Lease and shall contain the agreement of the subtenant
thereunder that, upon Landlord's written request, it will pay all rents under
the sublease directly to Landlord.
The provisions of this Section shall also be applicable to any sublease or
assignment by any sublessee or assignee or other person(s) or entity deriving
its interest through Tenant.
(b) If this Lease shall be assigned, or if the Premises or any part
thereof be sublet or occupied by anybody other than Tenant and its employees,
Landlord, after default by Tenant hereunder, may collect the rents from such
assignee, subtenant or occupant, as the case may be, and apply the net amount
collected to the Basic Annual Rent herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of the
requirements
set forth in subparagraph (a) of this Section, the acceptance by Landlord of
such assignee, subtenant or occupant, as the case may be, as a tenant, or a
release of Tenant from the future performance by Tenant of its covenants,
agreements and obligations contained in this Lease. The consent by Landlord
to
an assignment or subletting shall not in any way be construed to relieve
Tenant
from obtaining the express consent in writing of Landlord to any further
assignment or subletting. No assignment, subletting or use of the Premises
shall affect the purpose for which the Premises may be used as stated in
Section
2.
(c) The listing of any name other than that of Tenant, whether on the
doors of
the Premises or on the Building directory, or otherwise, shall not operate to
vest any right or interest in this Lease or in the Premises or be deemed to be
the written consent of Landlord mentioned in this Section, it being expressly
understood that any such listing is a privilege extended by Landlord revocable
at will by written notice to Tenant.
(d) Tenant further covenants and agrees that it will not sublease space
from
or take an assignment of a lease covering space in the Building from any other
Building tenant or sublease to or assign this Lease to any other Building
tenant.
(e) Any reasonable legal expenses incurred by Landlord by reason of any
proposed assignment or subletting shall be paid by Tenant whether or not the
transaction shall be consummated.
Notwithstanding anything contained herein to the contrary, so long as MFS
Intelenet of Massachusetts, Inc. or any Related Entity (as hereafter defined)
is
the Tenant in possession of the Premises, Tenant shall have right, without the
consent or approval of Landlord, and without any recapture rights or right to
excess rents of, or payments of any fees to, Landlord:
(i) assign its interest in this Lease (a) to any corporation which is a
successor to Tenant either by merger or consolidation, or (b) to a purchaser
of
all or substantially all of Tenant's stock or assets, or (c) to a corporation
or
other entity which shall directly or indirectly control, be under the control
of, or be under common control with, MFS Intelenet of
Massachusetts, Inc. or MFS Communications Company, Inc. (any such entity being
a
"Related Entity"), provided that any such assignee has a net worth greater
than
the higher of the net worth of Tenant on (1) the date hereof or (2) the date
of
such assignment, or
(ii) sublease all or any portion of Premises to a Related Entity.
For purposes hereof, "control" shall be deemed to mean the direct or indirect
ownership of more than fifty percent of the outstanding voting stock of a
corporation or other majority equity and control interest if not a
corporation.
Without limiting the foregoing, the collocation of telecommunications
equipment
in the Premises not owned by Tenant shall not constitute a prohibited
assignment
of sublease or require the consent of Landlord.
20. Default:
(a) If Tenant shall default in the payment of the Basic Annual Rent,
additional rent, or any other charges or sums due hereunder and such default
shall continue for ten (10) days (after notice from Landlord to Tenant;
provided, however, that Landlord shall not be required to give such notice
more
than one time in any Lease Year), or if Tenant shall default in the
performance
of any other of its obligations and such default shall continue for thirty
(30)
days after written notice thereof by Landlord to Tenant (except that if Tenant
cannot reasonably cure any such default within said thirty (30) day period,
this
period may be extended for a reasonable period of time not exceeding thirty
(30)
additional days, provided that Tenant commences to cure such default within
the
thirty (30) day period and proceeds diligently thereafter to effect such
cure),
or if Tenant or the Guarantor (as such term is defined in Section 36 hereof)
shall file a petition under any bankruptcy, insolvency law or code, or if such
a
petition filed against Tenant or Guarantor is not dismissed within sixty (60)
days, or if Tenant or Guarantor shall be adjudicated bankrupt or insolvent
according to law, or if Tenant or Guarantor shall make any assignment for the
benefit of creditors, or if Tenant or Guarantor shall file any petition
seeking
a reorganization, arrangement or similar relief, or if a receiver, custodian,
trustee or similar agent is appointed for all or a substantial portion of
Tenant's or Guarantor's assets, or if Tenant's interest in this Lease is taken
upon execution or other process of law in any action against Tenant or if the
Guarantor shall attempt to rescind or terminate the Guaranty (as such term
is defined in Section 36 hereof), then Landlord may lawfully enter the
Premises
and repossess the same as the former estate of Landlord, or terminate this
Lease
by written notice to Tenant and. in either event, expel Tenant and those
claiming through or under Tenant, and remove their effects, without being
deemed
guilty of any manner of trespass and without prejudice to any other remedy
which
Landlord may have for arrears of Basic Annual Rent and additional rent and
other
charges and sums due hereunder or proceeding on account of breach of covenant,
and upon entry or notice as aforesaid, this Lease shall terminate.
In addition, Tenant covenants, in case of any default by Tenant hereunder, to
pay Landlord all costs of enforcing Landlord's rights under this Lease
(including, without limitation, reasonable attorneys' fees and actual out-of-
pocket expenses), reletting expenses (including without limitation, the costs
to
prepare the Premises for a new tenant) and brokerage fees, and in addition,
liquidated damages of any one of the following elected by Landlord: (i) the
amount by which, at the termination of the Lease, the then present value
(using
as a discount factor the current interest rate on U.S. Treasury bills having a
maturity equivalent to the unexpired Term of the Lease) of the aggregate of
the
Basic Annual Rent (including, without limitation, the Real Estate Tax and
Operating Cost payments -projected on the basis of experience under this
Lease)
and other sums payable hereunder projected over a period from such termination
until the normal expiration date of the Term, exceeds the then present value
(using as a discount factor the current interest rate on U.S. Treasury bills
having a maturity equivalent to the unexpired Term of the Lease) of the
aggregate projected fair market rental value of the Premises for such period,
or
(ii) an amount equal to the Basic Annual Rent, plus Operating Costs and Real
Estate Tax payments projected on the basis of experience under this Lease not
so
terminated (subject to off-set for net rents actually received from reletting
after subtraction of the expenses of reletting), payable upon the due dates as
specified herein.
(b) Landlord may bring legal proceedings for the recovery of such damages,
or
any installments thereof, from time to time at its election, and nothing
contained herein shall be deemed to require Landlord to postpone suit until
the
date when the Term of this Lease would have expired if it had not been
terminated hereunder.
(c) Nothing herein contained shall be construed as limiting or precluding
the
recovery by Landlord from Tenant of any sums or damages (including, without
limitation, reasonable attorney's fees and expenses) to which, in addition to
the damages particularly provided above, Landlord may lawfully be entitled by
reason of any default hereunder on the part of Tenant. Landlord and Tenant
agree that, for the purpose of computing liquidated damages, the Real Estate
Tax
and Operating Cost payments for the period between the termination of this
Lease
pursuant to this Section and the normal expiration date shall be computed by
multiplying the Real Estate Tax and Operating Cost payment for the year
immediately preceding the year in which termination occurs times the number of
years and any fraction thereof
remaining of the full Term (as it may have been extended hereunder) hereby
granted on the assumption that the amount of such Real Estate Tax and
Operating
Cost payments for the immediately preceding year would have remained constant
for each subsequent year during the entire Term of this Lease (as it may have
been extended hereunder). This same principle shall apply to the twelve (12)
month period following termination if Landlord shall elect to recover under
(iii) above. If this Lease and the Term shall terminate pursuant to this
Section prior to the determination of the initial Real Estate Tax and
Operating
Cost payments, such payments shall be reasonably estimated by Landlord, at its
sole discretion. Landlord shall not be obligated to mitigate its damages, but
shall market the Premises for lease with the broker then marketing space in
the
Building.
(d) Payments of Basic Annual Rent, additional rent, Real Estate Taxes,
Operating Cost payments and any other obligations of Tenant which are not paid
on the date due shall, at the option of Landlord, bear interest at the rate
equal to the "Base Rate" from time to time established by The First National
Bank of Boston, plus two (2) percent per annum from the due date.
21. Landlord's Right to Cure: If Tenant shall default in the observance or
performance of any term, covenant or condition on its part to be observed or
performed under this Lease, Landlord, without being under any obligation to do
so and without thereby waiving such default, may remedy such default for the
account and at the expense of Tenant, immediately and without notice in case
of
emergency, or in any other case, if Tenant shall fail to remedy such default
with all reasonable diligence within the time set forth under Section 20 and
after Landlord shall have notified Tenant of such default. If Landlord makes
any expenditures or incurs any obligations for the payment of money in
connection therewith, including, but not limited to, reasonable attorney's
fees,
such sums paid or obligations incurred, with interest at the rate of interest
set forth in Section 20(d), shall be paid to Landlord by Tenant as additional
rent hereunder.
22. Subordination: This Lease is subject and subordinate in all respects
to
all existing mortgages and ground leases and other matters of record and,
provided Tenant is provided with a so-called non-disturbance agreement to all
mortgages and ground leases which may hereafter be placed on or affect this
Lease, the Property, or Landlord's interest or estate therein, and to each
advance made or hereafter to be made under any such mortgages, and to all
renewals, modifications, consolidations, replacements and extensions thereof
and
all substitutions therefor. This Section shall be self-operative and no
further
instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall execute and deliver promptly any certificate
acknowledging or confirming such subordination that Landlord or any mortgagees
or their respective successors in interest may request. Notwithstanding the
foregoing, any mortgagee may elect at any time to subordinate its mortgage to
this Lease in whole or in part. In the event of an assignment to any
mortgagee
of this Lease or any payments due hereunder, such mortgagee shall have no
liability for Landlord's obligations unless the
same shall have been expressly assumed in writing by such mortgagee or unless
such mortgagee shall have obtained indefeasible title to the Property. No act
or failure to act on the part of Landlord which would entitle Tenant under the
terms of this Lease, or by law, to be relieved of Tenant's obligations
hereunder
or to terminate this Lease shall result in such release or termination unless
Tenant shall have given written notice thereof to any mortgagee whose address
has been furnished to Tenant, and such mortgagee, after receipt of such
notice,
has failed to correct the condition complained of within a reasonable time
thereafter, including such time as may be necessary in order to obtain
possession of the Property.
Simultaneously with the execution of this Lease, Landlord shall provide Tenant
with a so-called Non-Disturbance Agreement from the current holders of all
existing mortgages or ground leases on or respecting the Property, which Non-
Disturbance Agreement shall be in the form currently used by the holders of
the
first mortgage.
23. Surrender of Possession: Holdover:
(a) At the expiration or earlier termination of the Term of this Lease, as
it
may have been extended hereunder, Tenant will remove Tenant's property,
equipment and trade fixtures and shall peaceably yield up to Landlord the
Premises in the same condition as they were on the Commencement Date, together
with the Improvements made pursuant to Section 7 hereof (unless otherwise
requested by Landlord pursuant to the provisions of this Lease), except for
reasonable wear and tear and damage by fire or other casualty covered by
Landlord's insurance or condemnation.
(b) If Tenant remains in the Premises beyond the expiration or
earlier termination of the Term of this Lease, as it may have been validly
extended hereunder, such holding over shall not be deemed to create any
tenancy, but the Tenant shall be a Tenant-at-Sufferance only and shall pay
rent
to Landlord at the times and manner determined by Landlord at a daily rate in
an
amount equal to one and one half (1-1/2) times the daily rate of the Basic
Annual Rent, additional rent and other sums payable under this Lease as of the
last day of the Term of this Lease, as it may have been validly extended
hereunder.
24. Notices: All notices or other communications which are required or
permitted herein shall be in writing and be given by sending by overnight
prepaid air courier utilizing receipt or by registered or certified mail,
postage prepaid, return receipt requested, addressed to the parties as
follows:
IF TO LANDLORD: c/o WASA Management
30 Federal Street
Boston, Massachusetts 02110
with a copy to: Andrew M., Pearlstein, Esq.
Goldstein & Manello, P.C.
265 Franklin Street
Boston, Massachusetts 02110
IF TO TENANT: MFS Intelenet of Massachusetts, Inc. 580 Winter Street
Waltham, Massachusetts
with a copy to: c/o MFS Telecom, Inc.
One Tower Lane, Suite 1600
Oakbrook Terrace, Illinois 60181 Attn: Real Estate & General Counsel
or at such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. Any such
communication shall be deemed to have been given on the business day after
dispatch if sent by overnight air courier (unless the receipt shows otherwise)
or on the fifth business day after posting if sent by mail.
25. Rules and Regulations: Tenant will faithfully observe and comply with
such
rules and regulations as Landlord may now have or hereafter at any time or
from
time to time may make and may communicate in writing to Tenant, which in the
judgment of Landlord shall be necessary for the reputation, safety, care or
appearance of the Building, or the preservation of good order therein, or the
operation or maintenance of the Building, or any equipment relating thereto,
or
the comfort of tenants or others in the Building (the "Rules and
Regulations").
Set forth on Exhibit C attached hereto are the Rules and Regulations in effect
as of the date of execution of this Lease. If this Lease shall conflict with
any such Rules and Regulations, the provisions of this Lease shall control.
Landlord shall not have any duty or obligation to enforce the Rules and
Regulations or the terms, covenants or conditions in any other lease as
against
any other tenant (but Landlord shall not enforce the Rules and Regulations in
a
discriminatory manner) and Landlord shall not be liable to Tenant for
violation
of the same by other tenants, their servants, employees, agents, visitors,
invitees or licensees.
26. Quiet Enjoyment: The Tenant, on paying Basic Annual Rent, additional
rent
and other sums payable hereunder and performing the covenants of this Lease on
its part to be performed, shall and may peaceably and quietly have, hold and
enjoy the Premises for the Term of this Lease (as it may have been extended
hereunder) free from hindrance or molestation by any person claiming by,
through
or under Landlord.
27. Limitation of Landlord's Liability: The term "Landlord", as used in
this
Lease, so far as covenants or obligations to be performed by Landlord are
concerned, shall be limited to mean and include only the owner or owners at
the
time in question of the Property, and in the event of any transfer or
transfers
of title to said Property, the Landlord herein named (and in case of any
subsequent transfers or conveyances, the then grantor) shall be automatically
relieved from and after the date of such transfer or conveyance of all
liability
as respects the performance of any covenants or obligations on the part of the
Landlord contained in this Lease thereafter to be performed, it being intended
hereby that the covenants and obligations contained in this Lease on the part
of
Landlord shall, subject as aforesaid, be binding on the Landlord, its
successors
and- assigns, only during and in respect of their respective successive
periods
of ownership of the Property. Tenant, its successors and assigns, agrees it
shall not assert nor seek to enforce any claim for breach of this Lease
against
any of Landlord's assets other than Landlord's interest in the Property and in
the rents, issues and profits thereof, and Tenant agrees to look solely to
such
interest for the satisfaction of any liability of or claim against Landlord
under this Lease, it being specifically agreed that in no event whatsoever
shall
Landlord (which term shall include, without limitation, any beneficiary of any
trust of which Landlord is a trustee or any general or limited partners of
Landlord if Landlord is a general or limited partnership), ever be personally
liable for any such liability. In no event shall Landlord be liable for any
indirect or consequential damages, including without limitation, loss of
profits, loss of business, damage to reputation or loss of rental under any
sublease or assignment arrangement. Nothing contained herein shall prohibit
any
action by Tenant against Landlord for, specific performance.
28. Binding Agreement: This Lease shall bind and inure to the benefit of
the
parties hereto and such respective heirs, representatives, successors or
assigns
as are permitted by this Lease. This Lease contains the entire agreement of
the
parties and may not be modified except by an instrument in writing.
29. Notice of Lease: Tenant agrees that it will not record this Lease.
Landlord and Tenant shall, upon request of either, execute and deliver a
notice
of this
Lease in such recordable form as may be permitted by applicable statute.
30. Brokerage: Landlord and Tenant each represents and warrants to the
other
that it has dealt with no broker except The Niles Company and CB Commercial
Real
Estate Group, Inc. in connection with this transaction. Landlord hereby
agrees
to pay all compensation which may be due by it to The Niles Company and CB
Commercial Real Estate Group, Inc. as set forth in a separate agreement.
Tenant
agrees to hold harmless and indemnify Landlord from and against any and all
costs, (including without limitation reasonable attorneys' fees), expenses, or
liability for any compensation, commissions and/or charges claimed by any
other
broker or agent claiming to have dealt with Tenant in connection with this
Lease
or the negotiation thereof.
31. Claims in Bankruptcy: Nothing herein shall limit or prejudice the
right of
Landlord to prove and obtain in a proceeding for bankruptcy, insolvency,
arrangement or reorganization, by reason of the termination, an amount equal
to
the maximum allowed by a statute of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or
not
the amount is greater to, equal to, or less than the amount of the loss or
damage which Landlord has suffered.
32. Estoppel Certificates: At Landlord's request, from time to time,
Tenant
agrees to execute and deliver to Landlord within ten (10) days after requested
to do so by Landlord, a certificate which acknowledges tenancy and possession
of
the Premises and recites such other facts concerning any provision of the
Lease
or payments made under the Lease including, without limitation, the date to
which rents have been paid, the amount of any security deposit, and whether
Landlord is then in default in the performance of any obligation of Landlord
under the Lease which a mortgagee or lender or a purchaser or prospective
purchaser of the Building or any interest therein or any other party may
reasonably request.
33. General Provisions:
(a) The various rights and remedies contained in this Lease and reserved
to
each of the parties shall not be exclusive of any other right or remedy of
such
party, but shall be construed as cumulative and shall be in addition to every
other remedy now or hereafter existing at law, in equity, or by statute. No
delay or omission of the right to exercise any power by either party shall
impair any such right or power, or shall be construed as a waiver of any
default
or as acquiescence in any default. No covenant, term or condition shall be
deemed waived by Landlord except by a writing. One or more waivers of any
covenant, term or condition of this Lease by either party shall not be
construed
by the other party as a waiver of a subsequent breach of the same covenants,
terms or conditions or any other covenant, term or condition. The consent or
approval of either party to or any act by the other party of a nature
requiring
consent or approval shall not be deemed to waive or render unnecessary consent
to or approval of any subsequent similar act.
No payment by Tenant, or acceptance by Landlord, of a lesser amount than shall
be due from Tenant to Landlord shall be treated otherwise than as a payment on
account. The acceptance by Landlord of a check for a lesser amount with an
endorsement or statement thereon, or upon any letter accompanying such check,
that such lesser amount is payment in full, shall be given no effect, and
Landlord may accept such check without prejudice to any other rights or
remedies
which Landlord may have against Tenant.
(b) Payments to Landlord under this Lease are rental for the use of the
Premises, and nothing herein contained shall be deemed or construed to make
Landlord a partner or associate of Tenant in the conduct of any business, nor
as
rendering Landlord liable for any debts, liabilities or obligations incurred
by
Tenant in the conduct of any business, it being expressly agreed that the
relationship between the parties is, and shall at all times remain, that of
landlord and tenant.
(c) All amounts payable by Tenant to Landlord under any provision of this
Lease other than Basic Annual Rent shall be deemed to be additional rental for
the use of the Premises, and Landlord shall have the same remedies for the
nonpayment of such amounts as for the nonpayment of Basic Annual Rent.
(d) Where the words "Landlord" and "Tenant" are used in this Lease, they
shall
include Landlord and Tenant and shall apply to persons, both men and women,
associations. partnerships and corporations, and in reading this Lease, the
necessary grammatical changes required to make the provisions hereof mean and
apply to them shall be made in the same manner as if written into the Lease.
(e) Tenant hereby declares that in entering into this Lease, Tenant relied
solely upon the statements contained in this Lease and fully understanding
that
no agents or representatives of Landlord have authority to in any manner
change,
add to or detract from the terms of this Lease. Landlord shall not be deemed
to
have made any other representations or agreements, express or implied.
(f) The invalidity of one or more of the provisions of this Lease shall
not
affect the remaining portions of this Lease; and, if any one or more of the
provisions of this Lease should be declared invalid by final order, decree or
judgment of a court of competent jurisdiction, this Lease shall be construed
as
if such invalid provisions had not bee included in this Lease.
(g) If Tenant shall be two or more persons or entities, each such person
shall
be jointly and severally liable for the payment of all sums due to Landlord
from
Tenant under this Lease and the performance of all of Tenant's covenants,
agreements, or obligations under this Lease.
(h) If either Landlord or Tenant shall be delayed or prevented from the
performance of any act required hereunder by reason of acts of God, strikes,
lockouts, labor troubles, inability to procure materials, restrictive
governmental laws or regulations or other cause without fault beyond their
control (financial inability and Tenant's obligation to pay Rent excepted),
performance of such acts shall be excused for the period of such delay and the
period for the performance of any act shall be extended for a period
equivalent
to the period of such delay.
(i) Where the word "Term" is used in this Lease, it shall also include the
word "Extended Term" as the context shall so require.
(j) Whenever the approval or consent of Landlord is required hereunder,
such
approval or consent may be withheld or conditioned in Landlord's sole
discretion
unless expressly otherwise set forth.
34. Landlord's Reservation of Rights to Change the Property: Landlord
hereby
expressly reserves the right, at any time and from time to time, but not any
obligation, to alter, or otherwise modify (or eliminate) the locations,
features, configuration and/or dimensions of all buildings, improvements,
parking areas, approaches, roadways, service drives, entries, exits, curb
cuts,
fire lanes, sidewalks, alleys, isles, islands, planted and landscaped areas,
public restrooms, if any, and other facilities, areas or improvements
contained
from time to time as a part of the Property, to raise buildings, or construct
additional buildings and improvements on the Property, including, without
limitation, one or more additional floors on the Building, to change the size,
location or arrangement of the common areas, to place and remove in the
corridors and other common areas, landscaping, decorative items
and structures for retail sales, promotional activities, or for any other
reasonable purpose; provided that the exercise of Landlord's rights hereunder
shall not materially and adversely affect the Premises or Tenant's use thereof
for the Permitted Use.
35. Environmental Matters: Tenant shall, at all times, comply with all
applicable federal, state, and local environmental and other laws, ordinances,
orders or regulations now or hereafter affecting or applicable to the Premises
or the operation of Tenant's business at the Premises or the Property
including,
without limitation, with respect to the operation and testing of Tenant's
emergency generator and associated fuel tank (the foregoing laws, ordinances,
orders, and regulations are hereinafter collectively referred to as
"Environmental Laws"). Notwithstanding anything in this Lease to the
contrary,
and without limiting the generality of the foregoing, Tenant shall not,
without
Landlord's prior written consent, and subject to such conditions as may be
imposed by Landlord and in strict compliance with all Environmental Laws, use,
store, manufacture or otherwise generate, process, dispose of, or deposit in,
on
or under the Property or into any septic, sewer, drainage or other system
servicing the Property or suffer or permit the use, storage, manufacture or
other generating, processing, disposal of or depositing in, on or under the
Property or any septic, sewer, drainage or other system servicing the Property
(collectively, "Dealing With or Dealt With"), any oil, grease, chemical,
hazardous or dangerous substance regulated by any public authority
(hereinafter
referred to as "Hazardous Substances") at, in, upon or under the interior or
exterior of the Premises, or the Property, whether or not above or below
ground,
or in any pipes, mains, conduits or ducts thereof or thereat. In connection
with any Tenant request for Landlord consent hereunder, Tenant shall provide
Landlord with such data, specifications and professional opinions as Landlord
may reasonably request.
Tenant does hereby agree to indemnify, defend, and save and hold harmless
Landlord from all claims, actions, hens, demands, costs, expenses, fines and
judgments resulting from or arising by reason of the following: (i) any spills
or contamination of air, soil or water or otherwise by Hazardous Substances at
or around the Premises or the Property or upon removal therefrom caused by
Tenant, its agents, servants, employees, contractors or invitees; (ii) the
violation of any Environmental Laws by Tenant or its agents, servants,
employees, contractors or invitees; and (iii) the violation of any of the
provisions of this Section of this Lease by Tenant or its agents, servants,
employees, contractors or invitees, in any case, including, without implied
limitation, reasonable engineering, attorney's and other professional fees and
expenses for evaluating, and/or curing the same and for consulting,
engineering,
defending against any such claims or removing such .Hazardous Substances, and
for enforcing this indemnification.
Upon ten (10) days prior written request from Landlord, Tenant shall execute,
acknowledge and deliver to Landlord or to landlord's mortgagee(s), or to such
other persons or parties as Landlord shall from time to time designate, a
written statement in form and specifics satisfactory to Landlord certifying
that
Tenant has not been (or to what extent Tenant has been) Dealing With or Dealt
With any Hazardous Substances on or about the Premises or the Property and
that
any Hazardous Substances used, processed or generated at the Premises or by it
at the Property
have been used or removed and disposed of properly, and of Tenant's strict
compliance with this Section.
36. Guaranty: all be guaranteed The obligations of the Tenant hereunder
shall
be guaranteed by MFS Communications Company, Inc. (the "Guarantor") pursuant
to
a Guaranty to be executed by Guarantor simultaneously with the execution of
this
Lease substantially in the form of Exhibit "D" attached hereto (the
"Guaranty").
37. Right of First Offer: So long as this Lease is in full force and
effect
and Tenant is not in default under Article 20 beyond the applicable grace
periods set forth in Section 20(a), Tenant shall have a right of first offer,
pursuant and subject to the following terms and conditions, to lease any
rentable area contiguous to the Premises on the first floor of the Building
except for the space shown on Exhibit A and marked "Exempt Space". In the
event
that, at any time during the Term, any such area becomes or is to become
vacant,
and Landlord desires to lease said area other than to its then current
occupant
(if any), Landlord shall first made a written offer to lease said area to
Tenant, stating the rent that Landlord will accept and all other material
terms
and conditions of the proposed lease (which rent and other terms and
conditions
shall be consistent with other offerings then being made by Landlord for
comparable space in the Building), and Tenant shall have a right of first
offer
(subject to any similar right or option which may heretofore have been given
to
another tenant) to lease said area by giving notice to Landlord to such effect
within ten (10) days after notice of such offer from Landlord. If such notice
is not so given by Tenant, then Landlord shall be free to lease said area to
anyone and Tenant shall have no further recourse with respect thereto except
in
the event that, subsequent to the leasing of said area to a third party, said
area again becomes available for rental as hereinabove set forth. In any case
in which Tenant shall have waived said right of first offer or said right
shall
have expired, Tenant shall, upon request of Landlord, execute and deliver in
recordable form an instrument indicating such waiver or expiration, which
instrument shall be conclusive in favor of all persons relying thereon in good
faith.
IN WITNESS WHEREOF, the parties hereto have executed this Lease in multiple
counterparts, the original as a sealed instrument on the day and year first
above written.
LANDLORD:
580 Winter Street Corp.
By: /s/
TENANT:
MFS Intelenet of
Massachusetts, Inc.
BY: /s/
its hereunto
duly authorized
EXHIBIT "C"
Rules and Regulations
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls of the Building shall not be obstructed or
encumbered or used for any purpose other than ingress and egress to and from
the
premises demised to any tenant or occupant.
2. No awnings or other projections shall be attached to the outside walls
or
windows of the Building without the prior consent of Landlord. No curtains,
blinds, shades, or screens shall be attached or hung in, or used in connection
with, any window or door of the premises demised to any tenant or occupant,
projections, curtains, blinds, shades, screens, or other fixtures permitted by
Landlord must be of a quality type, design and color, and attached in a
manner,
approved by Landlord.
3. No sign, advertisement, object notice or other lettering shall be
exhibited, inscribed, painted or affixed on any part of the outside or inside
of
the premises demised to any tenant or occupant of the Building without the
prior
consent of Landlord. Interior signs on doors and directory tables, if any,
shall be of a size, color and style approved by Landlord.
4. The sashes, sash doors, skylights, windows and doors that reflect or
admit
light and air into the halls, passageways or other public places in the
Building
shall not be covered or obstructed, nor shall any bottles, parcels, or other
articles be placed on any window sills.
5. No show cases or other articles shall be put in front of or affixed to
any
part of the exterior of the Building, nor placed in the halls, corridors,
vestibules or other parts of the Building without Landlord's prior consent.
6. The water and wash closets and other plumbing fixtures shall not be
used
for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein.
7. No tenant or occupant shall mark, paint, drill into, or in any way
deface
any part of the Building or the premises demised to such tenant or occupant.
No
boring, cutting or stringing of wires shall be permitted, except with the
prior
consent of the Landlord, and as Landlord may direct. No tenant or occupant
shall install any
resilient tile or similar floor covering in the premises demised to such
tenant or
occupant except in a manner approved by Landlord.
8. No bicycles, vehicles or animals of any kind shall be brought into or
kept
in or about the premises demised to any tenant. No cooking shall be done or
permitted in the Building by any tenant without the approval of Landlord. No
tenant shall cause or permit any unusual or objectionable odors to emanate
from
the premises demised to such tenant.
9. No tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with other tenants or occupants of the Building
whether by the use of any musical instrument, radio, television set or other
audio device, unmusical noise, whistling, singing, or in any other way.
Nothing
shall be thrown out of any doors or windows.
10. Each tenant must, upon the termination of its tenancy, restore to
Landlord
all keys of stores, offices and toilet rooms, either furnished to, or
otherwise
procured by, such tenant. Locks to premises shall not be changed or added
without permission of the Landlord.
11. Each tenant shall, at its expense, provide artificial light in the
premises demised to such tenant for Landlord's agents, contractors, and
employees while making repairs or alterations in said premises.
12. No premises shall be used, or permitted to be used, for lodging or
sleeping, or for any immoral or illegal purpose.
13. There shall not be used in the Building, either by any tenant or
occupant
or by their agents or contractors, in the delivery or receipt of merchandise,
freight or other matter, any hand trucks or other means of conveyance except
those equipped with rubber tires rubber side guards and such other safeguards
as
Landlord may require.
14. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant and occupant shall cooperate in seeking their prevention.
15. If the premises demised to any tenant becomes infested with vermin,
rodents, insects, or pests, such tenant, at its sole cost and expense, shall
cause its premises to be exterminated from time to time, to the satisfaction
of
Landlord, and shall employ such exterminators therefore as shall be approved
by
Landlord.
16. All damages done to the Building by the installation or removal of any
property of a tenant, or done by a tenant's property while in the Building,
shall be repaired at the expense of such tenant.
17. Each tenant shall keep its premises neat and clean. Landlord shall be
in
no way responsible to the tenants, their agents, employees or invitees for any
loss of property from their premises or public areas or for any damages to any
property thereon from any cause whatsoever unless caused by Landlord's gross
negligence or willful act or omission.
18. Nothing shall be swept or thrown into the corridors, halls, elevator
shafts or stairways. No birds or animals shall be brought into or kept in, on
or about the Building.
19. No machinery of any kind other than standard office equipment shall be
operated by a tenant on its leased premises without the prior written consent
of
Landlord which consent shall not be unreasonably withheld or delayed.
20. Tenants shall not do anything, or permit anything to be done, in or on
about the Building, or bring or keep anything therein, including without
limitation any inflammable or explosive fluid or substance, that will in any
way
increase the possibility of fire or other casualty, or do anything in conflict
with valid laws, rules or regulations of any governmental authority unless
permitted by Landlord.
21. Landlord reserves the right to rescind any of these rules and
regulations
and to make such other and further rules and regulations as in its judgment
shall from time to time be needful for the safety, protection, care and
cleanliness of the Building, the operation thereof, the preservation of good
order therein and the protection and comfort of the tenants and their agents,
employees and invitees, which rules and regulations, when made and written
notice thereof is given to a tenant, shall be binding upon it in like manner
as
if originally herein prescribed so long as the same are reasonable and
uniformly
enforced.
<PAGE>
Exhibit "D"
GUARANTY
For valuable consideration, the undersigned, MFS Communications Company, Inc.,
a
Delaware corporation, of 200 Kiewit Place, 3555 Farnam Street, Omaha, Nebraska
68131, (hereinafter referred to as the "Guarantor"), for its legal
representatives, successors and assigns, in order to induce 580 Winter Street
Corp., with offices at c/o WASA Management, 30 Federal Street, Boston,
Massachusetts ("Landlord") to enter into a lease of even date (the "Lease")
between Landlord and MFS Intelenet of Massachusetts, Inc. (the "Tenant"), for
certain premises at 580 Winter Street, Waltham, Massachusetts described in
said
Lease (the "Premises"), hereby unconditionally guarantees to the Landlord and
its successors or assigns, the full and prompt payment and performance of all
liabilities and obligations of the Tenant to the Landlord under the Lease of
every kind, nature and description including, without limitation, the payment
of
rent and other charges due under the Lease, whether recovery upon such
obligations may be or hereafter become barred by any statute of limitations,
or
whether such lease obligations may be or hereafter become otherwise
unenforceable (the "Lease Obligations"). This Guaranty will apply to the
Lease,
any extension or renewal of the Lease, and any holdover period following the
term of the Lease, or any such extension or renewal.
Any act of Landlord, or the successors or assigns of Landlord, consisting of a
waiver of any of the terms or conditions of the Lease, or the giving of any
consent to any matter related to or thing relating to the Lease, or the
granting
of any indulgences or extensions of time to Tenant, may be done without notice
to Guarantor and without affecting the obligations of Guarantor under this
Guaranty.
The obligations of Guarantor under this Guaranty will not be affected by
Landlord's receipt, application, or release of security given for the
performance of Tenant's obligations under the Lease, nor by any modification
of
the Lease, including, without limitation, the alteration, enlargement, or
change
of the Premises, except that in case of any such modification, the liability
of
the Guarantor will be deemed modified in accordance with the terms of any such
modification.
The obligation of the Guarantor is primary and not secondary. The Guarantor
hereby waives any right to require the Landlord to (a) proceed against or
exhaust any security held from the Tenant or remedy against Tenant prior to
proceeding under this Guaranty; (b) proceed against any other guarantor of the
Lease Obligations guaranteed hereby or (c) pursue any other remedy in
Landlord's
power whatsoever.
The liability of Guarantor under this Guaranty will not be affected by (a) the
release or discharge of Tenant from its obligations under the Lease in any
creditors', receivership, bankruptcy, or other proceedings, or the
commencement
or pendency of any such proceedings; (b) the impairment, limitation, or
modification of the liability of Tenant or the estate of Tenant in
bankruptcy-,
or of any remedy for the enforcement of Tenant's liability under the Lease,
resulting from the operation of any present or
future bankruptcy code or other statute, or from the decision in any court;
(c)
the rejection or disaffirmation of the Lease in any such proceedings; (d) the
assignment or transfer of the Lease or sublease of all or part of the Premises
by Tenant; (e) any disability or other defense of Tenant under the Lease.
Guarantor: (a) waives any right of subrogation against Tenant by reason
of any
payments or acts of performance by Guarantor in compliance with the
obligations
of Guarantor under this Guaranty; (b) waives any other right that Guarantor
may
have against Tenant by reason of any one or more payments or acts in
compliance
with the obligations of Guarantor under this Guaranty; (c) subordinates any
liability or indebtedness of Tenant held by Guarantor to the obligations of
Tenant to Landlord under the Lease; and (d) waives all suretyship defenses and
defenses of like nature.
The Guarantor hereby waives all presentments, demands for performance notices
of
non-performance, protests, notices of dishonor, and notices of acceptances of
this Guaranty. The Guarantor hereby waives any right or claim of right to
cause
a marshaling of the Tenant's assets. No delay on the pat of the Landlord in
the
exercise of any right, power or privilege under the Lease with the Tenant or
under this Guaranty shall operate as a waiver of any such privilege, power or
right.
The Guarantor agrees to pay on demand reasonable attorneys, fees and expenses
incurred by the Landlord in the enforcement of this Guaranty, whether or not
suit is commenced.
This Guaranty shall continue in full force and effect until the complete
payment
and performance of the Lease Obligations; provided, however, that
notwithstanding the forgoing, this Guaranty shall be released on the date
which
is the fifth (5th) anniversary of the Rent Commencement Date provided that (i)
Tenant has not previously defaulted beyond the applicable grace period during
the Term of the Lease; (ii) there is no default existing under Section 20 of
the
Lease as of such date and no event has occurred which, with the passage of
time,
could ripen into default; and (iii) Tenant has a net worth as of such date of
not less than One Million ($1,000,000) Dollars determined in accordance with
generally accepted accounting principles. This Guaranty may not be changed,
modified, discharged, or terminated orally or in any manner other than
agreement
in writing signed by Guarantor and Landlord.
The Guarantor acknowledges that the Landlord has been induced by this Guaranty
(among other things) to enter into the Lease with the Tenant heretofore
described, and this Guaranty shall, without further reference of assignment,
pass to, and may be relied upon and enforced by, any successor or assignee of
the Landlord.
The Guarantor hereby consents to the jurisdiction of the courts of the
Commonwealth of Massachusetts and the United States District Court for the
District of Massachusetts, as well as to the jurisdiction of all courts to
which
an appeal may be taken from such courts, for the purpose of any suit, action
or
other proceeding arising out of or in connection with this Guaranty. The
Guarantor hereby
expressly waives any and all objections it may have as to the venue in any
such
courts.
This Guaranty shall, for all purposes, be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts to the maximum
extent that the parties hereto may so lawfully agree, irrespective of the
place
of execution.
EXECUTED as a sealed instrument this day of October, 1994.
Witness
This is the third and final page of a Guaranty, dated October, 1994, from MFS
Communications Company, Inc. to 580 Winter Street Corp.
EXHIBIT 10.4
NOTICE OF NONCOMPLIANCE
NOTICE OF AUDIT FINDINGS
Dear Mr. Borgwing:
During May, 1995, the Massachusetts Department of Environmental Protection
(the Department) conducted an audit of certain activities related to the above
referenced disposal site pursuant to the Massachusetts Contingency Plan (MCP),
310 CMR 40.1100. That audit is now complete.
The purpose of this Notice is to inform you that, as a result of the
audit, Department personnel have determined that you are in noncompliance with
one or more laws, regulations, orders, licenses, permits, or approvals
enforced
by the Department, The specific aspects of the noncompliance and the measures
the Department wants you to take to come into compliance are described in this
Notice of Noncompliance.
The audit included a windshield survey conducted on May 8, 1995, a review
of the documents listed below, and a review of other information in the
Department's files:
1) LSP Evaluation opinion report, prepared for WASA Management by
Environmental Science Services (ESS), and dated June 17, 1994; and
2) "Phase I - Limited Subsurface Investigation of 580 Winter Street,
Waltham, Massachusetts", prepared for Prudential Realty Group by Certified
Engineering & Testing Company and dated May 9, 1989.
SITE SUMMARY
On August 14, 1987, a 10,000 gallon petroleum underground storage tank
(UST) was removed from the subsurface at 580 Winter Street, Waltham,
Massachusetts. Soil contaminated with number 4 fuel oil was discovered in
this
tank excavation. The Department was notified of this release on August l7,
1987.
An Environmental Site Investigation for the property was completed by
Goldberg-Zoino & Associates, Inc. (GZA), in January 1989. Six soil borings
were
drilled and four groundwater monitoring wells were installed. Fuel oil and
chlorinated volatile organic chemicals (VOCs) were detected in soil and
groundwater samples from the site. VOCs were not detected in soil at the site
at levels exceeding the MCP RCS-l Reportable Concentrations. Trichloroethene
was measured in a groundwater sample from well GZA-2 at a concentration of 21
ug/l, which exceeds the RCGW-1 concentration of 5 ug/l.
A Phase I-Limited Site Investigation was conducted by Certified
Engineering & Testing Company during the spring of 1989, On March 16 and 20,
1989, borings were drilled at the property, Split spoon screening was
conducted
at five foot intervals in these borings, Two groundwater monitoring wells were
installed. Three shallow soil samples were also
collected at this tine. These shallow soil samples were collected with a
shovel from a depth of two feet. fuel oil and chlorinated VOCs were again
detected in soil and groundwater samples from the site. VOCs were not
detected
in soil at levels exceeding the MCP RCS-l Reportable Concentrations,
Trichloroethene was measured in a groundwater sample from well GZA-2 at a
concentration of 9.6 ug/l, which exceeds the RCGW-1 concentration of 5 ug/l.
Total Petroleum Hydrocarbon (TPH) was measured in a groundwater sample from
well
MW-103 at a concentration of 6 MG/1, which exceeds the RCGW-1 concentration of
l
mg/l.
A Preliminary Environmental Assessment was conducted by Environmental
science services (ESS). ESS collected groundwater samples from existing
monitoring wells in November 1992 and December 1993. Trichloroethene wag
measured in a groundwater sample from well GZA-3A at a concentration of 7 ug/1
in November 1992 (RCGW-1 = 5 ug/1). Trichloroethene was not detected in a
water
sample collected from this well in December 1993 (detection limit 5 ug/1).
LSP EVALUATION OPINION
The LSP Evaluation Opinion states that, "the subject site presents no
significant risk to its occupants, the surrounding properties, or the City of
Cambridge water supply. Since no contaminants listed in the MCP were
currently detected, and previously collected groundwater samples were below the
applicable RCGW-2 standards, it is the opinion of the undersigned that the
location is not a disposal site where a release of oil and/or hazardous
materials has occurred which is subject to the notification requirements of
310 CMR 40.0300, and that no further response actions are required."
SITE VISIT
On May 8, 1995, a representative of the Department completed a windshield
survey of the subject site. The location of the property with respect to the
Cambridge Reservoir was noted. Winter Street, and a narrow wooded area
bordering the street, lie between the site and the Reservoir. The site is
located on a hill overlooking Winter Street. Surface topography slopes
strongly
toward winter Street in this area, Surface water runoff is collected by storm
drains which empty into a retention pond in the Winter Street median strip. A
small stream, which flows in a southerly direction, away from the Cambridge
Reservoir, is located east of the site, opposite a Guest Quarters suite Hotel.
No sheens were observed on either the retention pond or the stream.
NOTICE OF NONCOMPLIANCE
The following is a description of (1) each activity identified during the
audit which is in noncompliance, (2) the requirements violated, (3) the action
the Department now wants you to take, and (4) the deadline for taking such
action, An administrative penalty may be assessed for every day from now on
that
you are in noncompliance.
Notwithstanding this Notice of Noncompliance, the Department reserves the
right to exercise the full extent of its legal authority in order to obtain
full
compliance with all applicable requirements, including, but not limited to,
criminal prosecution, civil action including court-imposed civil penalties, or
administrative penalties assessed by the Department.
ENTITY IN NONCOMPLIANCE
WASA Management
30 Federal Street
Boston, MA 02110
DEP RTN #3-2117
LOCATION WHERE NONCOMPLIANCE OCCURRED OR WAS OBSERVED
Waltham, 580 Winter Street
DATE(S) WHEN NONCOMPLIANCE OCCURRED OR WAS OBSERVED
June 22, 1994, the date the Department received a Licensed Site
Professional Evaluation Opinion/Report dated June 17, 1994 .
DESCRIPTION OF ACTIVITY OF NONCOMPLIANCE
The LSP Evaluation opinion did not identify the applicable groundwater
category for the site,
DESCRIPTION OF REQUIREMENT(S) NOT COMPLIED WITH
The LSP Evaluation Opinion compared contaminant concentrations in
groundwater at the site to the MCP RCGW-2 Reportable Concentrations. However,
based on a measurement made from the Maynard, Massachusetts, USGS Quadrangle
(scale = 1:25,000), the site is located approximately 325 feet from the shore
of the Cambridge Reservoir, a Class A surface water body used as a public
drinking water supply. Pursuant to section 40.0362(l)(a)(4) of the MCP, the
reporting category for groundwater at the site is RCGW-1 because the site is
located within the Zone A of the Cambridge Reservoir,
Groundwater monitoring well MW-103 contained TPH at a concentration of 6
mg/l when last sampled in March 1989. This level exceeds the MCP RCGW-1 TPH
Reportable Concentration of 1.0 mg/l. Groundwater monitoring well MW-101
contained trichloroethene at a concentration of 55 ug/1 when last sampled in
March 1989. This level exceeds the MCP RCGW-1 trichloroethene Reportable
Concentration of 5.0 ug/l.
Based on the RCGW-1 groundwater category and levels of trichloroethene and
fuel oil in groundwater, the site is subject to the notification requirements
pursuant to 310 CMR 40.0300.
DESCRIPTION OF DEADLINE(S) OF ACTION TO BE TAKEN
Submit to the Department, within 60 days of the date of this Notice, in
accordance with 310 CMR 40.0610(5), a revised LSP Evaluation opinion which
indicates in Section B. that a release subject to the notification
requirements of 310 CMR 40,0300 occurred or may have occurred at the subject
site and that further response actions are necessary. This LSP Evaluation
Opinion must be accompanied by either a Tier Classification Submittal
Transmittal Form (BWSC-107) completed in accordance with 310 CMR 40,0500 with a
Tier I Permit Application if necessary, or a Response Action Outcome
Statement (BWSC-104) completed in accordance with 310 CMR 40,1000.
The revised LSP Evaluation opinion must also be accompanied by a letter
requesting that the Department rescind the original LSP Evaluation Opinion
dated June 17, 1994 (received by the Department on June 22, 1994) and replace it
it with the revised LSP Evaluation opinion.
If the requested documents are not received by the Department within 60
days of the date of this Notice, pursuant to 310 CMR 40.0610(6), the site will
default to a Tier 1B Classification and Tier 1B Annual Compliance Fees will be
assessed.
A copy of this Notice has been sent to your LSP. You may consult with
your LSP when preparing a response to this Notice, Note, however, that you,
not your LSP, are obligated to respond to this Notice and remedy the
violation.
Note that any submittal to the Department made in response to this Notice must
include the certification statement specified in 310 CMR 40,0009, signed by an
authorized individual.
CONCLUSION
You are advised to respond to the Notice of Noncompliance within the
timeframes outlined above to avoid additional enforcement action by the
Department.
This audit focused primarily on compliance 'with certain requirements of
M.G.L. c. 21E and the MCP and, to a limited extent, other applicable
requirements.
This audit does not preclude future audits of past, current, or future
response actions or activities at the site or inspections to confirm
compliance
with applicable requirements of other laws or regulations enforced by the
Department.
If you have any questions regarding this notice or any of the requirements
contained in it, please contact Jack Miano at the letterhead address or
telephone (617) 932-7600,
Very truly yours,
/s/
Jack Miano
Environmental Engineer
/s/
Richard J. Chalpin
Regional Engineer
Bureau of Waste Site Cleanup
cc: DEP/Woburn, Data Entry/Files
DEP/Woburn/BWSC, John Fitzgerald DEP/Woburn/BWSC, Patricia Donahue
DEP/BWSC/Boston/5th fl, c/o Steve Winslow City of Waltham, 610 Main
Street, Waltham, MA 02154,
Attn: Health Agent
City of Waltham, 610 Main Street, Waltham, MA 02154,
Attn: Board of Selectmen
Environmental Science Services, 450 Lexington Street,
Newton, MA 02166, Attn: Duncan Wood
EXHIBIT 10.5
Massachusetts Department of Environmental Protection BWSC-104
Bureau of Waste Site Cleanup
RESPONSE ACTION OUTCOME (RAO) STATEMENT &
DOWNGRADIENT PROPERTY STATUS TRANSMITTAL FORM
Release Tracking Number 3-2117
Pursuant to 310 CMR 40.0180 (Subpart B), 40.0580 (Subpart E) &
40.1056 (Subpart J)
A. SITE OR DOWNGRADIENT PROPERTY LOCATION:
Site Name: (optional) 580 Winter Street
Street: 580 Winter Street
City/Town: Waltham Zip Code: 02154
/ / Check here if this Site location is Tier Classified. if
a Tier 1 Permit has been issued, state the Permit Number:
Related Release Tracking Numbers that this Form Addresses:
If submitting an RAO Statement, you must document the location of
the Site or the location and boundaries of the Disposal Site
subject to this Statement. If submitting an RAO Statement for a
PORTION of a Disposal Site, you must document the location and
boundaries for both the portion subject to this submittal and, to
the extent defined, the entire Disposal Site. If submitting a
Downgradient Property Status Submittal, you must provide a site
plan of the property subject to the submittal and, to the extent
defined, the Disposal Site.
B. THIS FORM IS BEING USED TO: (check all that apply)
/ X / Submit a Response Action Outcome (RAO) Statement
(complete Sections A,B,C,D,E,F,H,I,J, and L).
/ / Check here if this is a revised RAO Statement.
Date of Prior Submittal:
/ / Check here if any Response Actions remain to be taken
to address conditions associates with any of the Releases whose
Release Tracking Numbers are listed above. This RAO Statement
will record only an RAO-Partial Statement for those Release
Tracking Numbers.
Specify Affected Release Tracking Numbers:
/ / Submit an optional Phase I Completion Statement supporting
an RAO Statement or Downgradient Property Status Submittal
(complete Sections A,B,H,I,J, and L).
/ / Submit a Downgradient Property Status Submittal (complete
Sections A,B,G,H,I,J and K).
/ / Check here if this is a revised Downgradient Property
Status Submittal. Date of prior Submittal:
/ / Submit a Termination of a Downgradient Property Status
Submittal (complete Sections A,B,I, J and L).
/ / Submit a Periodic Review Opinion evaluating the status of a
Temporary Solution (complete Sections A, B, H, I, J and L).
Specify one: / / For a Class C RAO / / For a Waive
Completion Statement indicating a Temporary Solution
Provide Submittal Date of RAO Statement or Waiver Completion
Statement:
You must attach all supporting documentation required for each
use of form indicated, including copies of any legal Notices and
Notices to Public Officials required by 310 CMR 40.1400.
C. DESCRIPTION OF RESPONSE ACTIONS: (check all that apply)
/ / Assessment and/or Monitoring Only
/ / Removal of Contaminated Soils
/ / Re-use, Recycling or Treatment
/ / On site / / Off Site Est. Vol.:
cubic yards
/ / Landfill / / Cover / / Disposal Est.
Vol: cubic yards
/ / Removal of Drums, Tanks or Containers
Describe:
/ / Removal of Other Contaminated Media
Specify Type and Volume:
/ / Other Response Actions
Describe:
/ / Deployment of Absorbant or Contaminant Materials
/ / Temporary Covers or Caps
/ / Bioremediation
/ / Soil Vapor Extraction
/ / Structure Venting System
/ / Product or NAPL Recovery
/ / Groundwater Treatment Systems
/ / Air Sparging
/ / Temporary Water Supplies
/ / Temporary Evacuation or Relocation of Residents
/ / Fencing and Sign Posting
/ / Check here if any Response Action(s) that serve as the
basis for this RAO Statement involve the use of Innovative
Technologies (DEP is interested in using this information to
create an Innovative Technologies Clearinghouse).
Describe Technologies:
D. TRANSPORT OF REMEDIATION WASTE: (if remediation waste was
sent to an off-site facility, answer the following questions)
Name of Facility: NOT APPLICABLE
Town and State:
Quantity of Remediation Waste Transported to Date:
E. RESPONSE ACTION OUTCOME CLASS:
Specify the Class of Response Action Outcome that applies to the
Site or Disposal Site. Select ONLY one Class:
/ / Class A-1 RAO: Specify one of the following
/ / Contamination has been reduced to background levels
/ / A Threat of Release has been eliminated
/ / Class A-2 RAO: You MUST provide justification that
reducing contamination to background levels is infeasible.
/ / Class A-3 RAO: You MUST provide both an implemented
Activity and Use Limitation (AUL) and justification that reducing
contamination to background levels is infeasible. If applicable,
provide the earlier of the AUL expiration date or date the design
life of the remedy will end:
/ X / Class B-1 RAO: Specify one of the following:
/ / Contamination is consistent with background levels
/ X/ Contamination is NOT consistent with background levels
/ / Class B-2 RAO: You MUST provide an implemented AUL.
If applicable, provide the AUL expiration date:
/ / Class C RAO / / Check here if you will conduct
post-RAO Operation, Maintenance and Monitoring at the Site.
Specify One: / / Passive Operation and Maintenance /
/ Monitoring Only
/ / Action Operation and Maintenance (defined
at 310 CMR 40.0006)
F. RESPONSE ACTION OUTCOME INFORMATION:
/ X / If an RAO Compliance Fee is required, check here to
certify that the fee has been submitted. You MUST attach a
photocopy of the payment.
/ / Check here if submitting one or more AULs. You must
attach an AUL Transmittal Form (BWSC-113) and a copy of each
implemented AUL related to this RAO Statement. Specify the type
of AUL(s) below: (required for all Class A-3 RAOs and Class B-2
RAOs)
/ / Notice of Activity and Use Limitation
/ / Grant of Environmental Restriction
Number of AULs attached:
Specify the Risk Characterization Method(s) used to achieve the
RAO described above and all Soil and Groundwater Categories
applicable to the Site.
More than one Soil Category and more than one Groundwater
Category may apply at a Site. Be sure to check off all
APPLICABLE categories, even if more stringent soil and
groundwater standards were met.
Risk Characterization Method(s) Used: / X / Method 1
/ / Method 2 / / Method 3
Soil Category(ies) Applicable: / / S-1 / / S-2
/ / S-3
Groundwater Category(ies) Applicable: / / GW-1 / X / GW-2 / X / GW-3
> When submitting any Class A-1 RAO or Class B-1 RAO where
contamination is consistent with background levels, do NOT
specify a Risk Characterization Method.
> When submitting any Class A-2 RAO or a Class B-1 RAO where
contamination is NOT consistent with background levels, you
cannot use an AUL to maintain a level of no significant risk.
Therefore, you must meet S-1 Soil Standards, if using Risk
Characterization Method 1.
G. DOWNGRADIENT PROPERTY STATUS SUBMITTAL:
/ / If a Downgradient Property Status Submittal Compliance
Fee is required, check here to certify that the fee has been
submitted. You MUST attach a photocopy of the payment.
/ / Check here if a Release(s) of Oil or Hazardous
Material(s), other than that which is the subject of this
submittal, has occurred at this property. Release Tracking
Number(s) :
/ / Check here if the Releases identified above require
further Response Actions pursuant to 310 CMR.40.0000.
Required documentation for a Downgradient Property Status
Submittal included, but is not limited to, copies of notices
provided to owners and operators of both upgradient and
downgradient abutting properties and of any known or suspected
source properties.
H. LSP OPINION:
I attest under the pains and penalties of perjury that I have
personally examined and am familiar with this transmittal form,
including any and all documents accompanying this submittal. In
my professional opinion and judgment based upon application of
(i) the standard of care in 309 CMR 4.02(1), (ii) the applicable
provision of 309 CMR 4.02(2) and (3), and (iii) the provision of
309 CMR 4.03(5), to the best of my knowledge, information and
belief.
> If Section B indicates that a Downgradient Property Status
Submittal is being provided, the response action(s) that is (are)
the subject of this submittal (i) has (have) been developed and
implemented in accordance with the applicable provisions of
M.G.L. c. 21E and 310 CMR 40.0000, (ii) is (are) appropriate and
reasonable to accomplish the purposes of such response action9s)
as set forth in 310 CMR (40.0183(2)(b), and (iii) complies(y)
with the identified provisions of all orders, permits, and
approvals identified in this submittal;
> If Section B indicates that either an RAO Statement, Phase I
Completion Statement and/or Periodic Review Opinion is being
provided, the response action9s) that is (are) the subject of
this transmittal (i) has (have) been developed and implemented in
accordance with the applicable provisions of M.G. L. c. 21E and
310 CMR 40.0000, (ii) is (are) appropriate and reasonable to
accomplish the purposes of such response action(s) as set forth
in the applicable provisions of M.G.L. c. 21E and 310 CMR
40.0000, and (iii) complies(y) completely with the identified
provisions of all orders, permits, and approvals identified in
this submittal.
I am aware that significant penalties may result, including, but
not limited to, possible fines and imprisonment, if I submit
information which I know to be false, inaccurate or materially
incomplete.
/ / Check here if the Response Action(s) on which this
opinion is based, if any, are (were) subject to any order(s),
permit(s) and/or approval(s) issued by DEP or EPA. If the box is
checked, you MUST attach a statement identifying the applicable
provisions thereof.
LSP Name: DUNCAN W. WOOD LSP# 8765 Stamp:
Telephone: 617-431-0500 Ext.:
FAX (optional): 617-431-7434
Signature: /S/ DUCAN W. WOOD
Date: October 2, 1995
I. PERSON MAKING SUBMITTAL:
Name of Organiation: WASA MANAGEMENT as agent for 580 Winter
Street Corp.
Name of Contact: LARS BORGWING Title: President
Street: 30 Federal Street, 6th floor
City/Town: Boston State: MA Zip Code: 02109
Telephone: 617-423-0054 Ext.: FAX: (optional)
617-423-0940
J. RELATIONSHIP TO SITE OF PERSON MAKING SUBMITTAL: (check
one)
/ X / RP or PRP Specify: / X / Owner / / Operation
/ / Generator
/ / Transporter Other RP or PRP:
/ / Fiduciary, Secured Lender or Municipality with Exempt
Status (as defined by M.G.L. c. 21E, s.2
/ / Agency or Public Utility on a right of Way (as defined
by M.G.L. c. 21E, s, 5(j))
/ / Any Other Person Submitting This Form Specify
Relationship:
K. CERTIFICATION OF PERSON SUBMITTING DOWNGRADIENT PROPERTY
STATUS SUBMITTAL:
NOT APPLICABLE.
L. CERTIFICATION OF PERSON MAKING SUBMITTAL:
If you are completing only a Downgradient Property Status
Submittal, you do not need to complete this section of the form.
I, Lars Borgwing, attest under the pains and penalties of perjury
(i) that I have personally examined am familiar with the
information contained in this submittal, including any and all
documents accompanying this transmittal form, (ii) that, based on
my inquiry of those individuals immediately responsible for
obtaining the information, the material information contained in
this submittal is, to the best of my knowledge and belief, true,
accurate and complete, and (iii) that I am fully authorized to
make this attestation on behalf of the entity legally responsible
for this submittal. I/the person or entity on whose behalf this
submittal is made am/is aware that there are significant
penalties, including, but not limited to, possible fines and
imprisonment, for willfully submitting false, inaccurate or
incomplete information.
By: / S / LARS BORGWING Title: President
For: WASA MANAGEMENT as agent for 580 Winter Street Corp.
(print name of person or entity recorded in Section I)
Enter address of the person providing certification, if different
from address recorded in Section I:
YOU MUST COMPLETE ALL RELEVANT SECTIONS OF THIS FORM OR DEP MAY
RETURN THE DOCUMENT AS INCOMPLETE. IF YOU SUBMIT AN INCOMPLETE
FORM, YOU MAY BE PENALIZED FOR MISSING A REQUIRED DEADLINE, AND
YOU MAY INCUR ADDITIONAL COMPLIANCE FEES.
EXHIBIT 10.6
DOCUMENTATION SUPPORTING
RESPONSE ACTION OUTCOME
Fuel Oil and Trichloroethene in Groundwater
580 Winter Street, Waltham, Massachusetts
DEP Site No. 3-2117
Prepared For:
WASA Management
30 Federal Street, 6th Floor
Boston, Massachusetts
Submitted To:
Massachusetts Department of Environmental Protection
Northeast Region
10 Commerce Way
Woburn, Massachusetts
Prepared By:
Environmental Science Services
49 Walnut Park, Building 3
Wellesley Hills, Massachusetts
ESS Project No. W028
October 2, 1995
Environmental Science Services An Equal Opportunity Employer 49 Walnut
Park, Building No. 3, Wellesley Hills, Massachusetts 02181 (617) 43 1-0500 Fax
(617) 431-7434
DOCUMENTATION SUPPORTING
RESPONSE ACTION OUTCOME
Fuel Oil and Trichloroethene in Groundwater
580 Winter Street, Waltham, Massachusetts
DEP Site No. 3-2117
1.0 INTRODUCTION
This document presents information, an evaluation, and conclusions in
support of a Response Action Outcome (RAO) Statement for the property located
at
580 Winter Street, Waltham, Massachusetts (the Site). This document and the
included RAO forms address the presence of fuel oil and trichloroethene
detected
in groundwater on a portion of the Site.
A LSP Evaluation Opinion by Environmental Science Services (ESS) dated
June 17, 1994 concluded that the site presents no significant risk to its
occupants, the surrounding properties, or the City of Cambridge water supply
based on the existing levels of groundwater contamination at the Site and a
reporting category for groundwater at the site of RCGW-2. Subsequent review
of
this document by DEP in a memorandum dated May 16, 1995 stated that the
reporting category for groundwater at the Site should be RCGW-1 based on its
proximity to the Cambridge Reservoir. This review noted that the residual
concentrations of fuel oil and trichloroethene exceed the RCGW-1 Standards.
Therefore, the LSP Evaluation Opinion was not an appropriate end point for the
evaluation of this Site, and a risk characterization is required.
This document presents an opinion that, despite the RCGW-1 designation
affirmed in DEP's communication, the groundwater should not be classified as
GW-1 for the purposes of risk characterization. This opinion is supported by
our interpretation of the particular hydrogeologic conditions at the Site.
This document describes:
- - the location and nature of the releases;
- - the assessment of residual-conditions; and
- - a risk characterization based upon the results of the assessment work.
A Class B-2 RAO has been designated for the Site based on the following
conclusions:
1) A level of "no significant risk" exists.
2) No remediation was undertaken at the Site.
3) Residual concentrations of fuel oil and several solvents exceed
background levels.
Also included with this documentation is a completed copy of the Response
Action Outcome Statement and Downgradient Property Status Transmittal Form
(BWSC-104).
2.0 DESCRIPTION OF THE SITE
The Site is located in the industrial park near the 'intersection of
Winter Street and Route 128 in Waltham, Massachusetts. The building is on the
southwest comer of the intersection of Winter Street and First Avenue. The
larger parking lot abuts West Street and is southwest of the building lot.
The
building is surrounded on the east, west, and south by other commercial and
industrial proper-ties. Across Winter Street to the north is the Cambridge
Reservoir, a primary storage reservoir serving the public water supply of the
City of Cambridge. A locus map and site plan map are attached as Figures I
and 2, respectively.
3.0 HISTORY OF RELEASE
The initial site investigation was conducted by Goldberg-Zoino &
Associates, Inc. (GZA) with their report dated January 1989. A follow up
effort
was conducted by Certified Engineering and Testing (CET) with their report
dated
May 1989. The sampling by these firms in December 1988 and March 1989
detected
low levels of chlorinated solvents, such as trichloroethene, as well as total
petroleum hydrocarbons (TPH). The Site was subsequently reported to the
Massachusetts Department of Environmental Protection (DEP). No specific
source
was identified for the solvents, whereas the TPH contamination was attributed
to
small overfills of a former underground fuel oil tank, found to be intact on
removal.
A Preliminary Environmental Assessment and Limited Subsurface
Investigation was completed by ESS in April 1993. This included analysis of
groundwater samples collected in December 1992 from the four existing
accessible
monitoring wells on the property. ESS concluded that there was no visual
evidence of a release or a significant threat of a release of oil or hazardous
material to the property. However, analysis of the groundwater samples
detected
low levels of volatile organic compounds (VOCs). A summary of all available
analytical results for groundwater is attached as Table 1.
4.0 GROUNDWATER CLASSIFICATION
The subject Site was located on the 7.5- by 7.5-minute Concord quadrangle
of the Massachusetts Geographical Information System (MASSGIS) maps at the DEP
Northeast Region office in Woburn, Massachusetts. According to that map,
there
are no wells or pumping stations for public water supply within a radius of at
least 1 mile from the subject Site. The building on the property is
approximately 325 feet from the southern edge of the Cambridge Reservoir, and
1,500 feet from the ghettoize which regulates the reservoir's outlet into Hobs
Brook, but there is no protected zone designation associated with the
Cambridge
Reservoir noted on the
MASSGIS maps in this area. According to the maps entitled "Hydrology and
Water Resources of the Charles River Basin, Massachusetts," published by the
USGS, the subject property is not underlain by any aquifer that is favorable
for
development of water supply wells.
In accordance with 3 1 0 CMR 40.0932, and based on the proximity of the
Site to the Cambridge Reservoir, the Site is in the Zone A of a Class A
Surface
Water Body. As stated in DEP's memorandum of May 16, 1995, this condition
requires classification of Site groundwater as RCGW-1 for reporting purposes.
However, for the purposes of Risk Characterization, ESS believes that the
appropriate classification of the groundwater at the Site is GW-2 and GW-3,
based on its particular hydrogeologic setting. The following discussion on
this
topic is based on three sources of information: the USGS Topographic Map for
the
Maynard Quadrangle, the GZA environmental site assessment of the Site dated
January 5, 1989, and the CET environmental site assessment for the Site dated
May 9, 1989.
Although this Site is within 400 feet of a Class A Surface Water Body, the
water body in question is a dammed reservoir, and, based on the topography as
depicted in the USGS Maynard Quadrangle, the Site is located on the regionally
downgradient side of the dam. Surface water bodies typically gain part of
their
recharge from inflowing groundwater. However, along a certain portion (along
the regionally downgradient side) of the perimeter of water bodies,
groundwater
is often recharged from surface water, flowing away from the water body. This
is more consistently and predictably the case for dammed water bodies, where
surface water is artificially maintained above its natural elevation.
In this case, two observations support the conclusion that the Site is
located in such a zone, and that groundwater beneath the Site flows to the
more
distant Hobbs Brook 'rather than the Cambridge Reservoir. The first
observation
is that relative groundwater elevations at the Site, as measured on two
occasions (December 1989 and May 1989), show groundwater flow in a southerly
direction, away from the reservoir. The second observation is that estimated
absolute groundwater elevations at the Site are below the elevation of the
water
surface of the reservoir, as depicted on the USGS Topographic map. ESS
estimated the absolute groundwater elevations (above MSL) at the Site based on
the topographic contours provided on the USGS Quadrangle map. The average
elevation of the four monitoring wells GZA-1, GZA-2, GZA-3 and MW-103 was
assumed to be 177.1 feet. The elevation of each individual well was then
estimated based on the difference from average as determined from the relative
elevation survey provided by CET. Groundwater elevations were then computed
for
the four wells based on measured depth to water on two separate occasions.
These elevations can be directly compared with the elevation of the water
surface of the reservoir. These data are summarized in Table 2.
Whereas the elevation of the reservoir surface is 172.2 feet above MSL,
the groundwater elevations at the Site are between 161.78 and 163.51 ft, with
the exception of one measurement in well MW-103 of 169.6. Groundwater
elevations
at the Site are therefore generally about 10
feet below the elevation of the reservoir surface as reported on the USGS
Quadrangle map. In the case of MW-103, in which groundwater is 2.6 feet below
the elevation of the reservoir, two points need to be considered. First, this
well is the closest to the reservoir of all the wells at the Site, and second,
this well is installed directly above the shallow refusal depth of 10 feet.
It
is possible that the groundwater elevation in this well reflects a local
condition. In any case, the data indicates a hydraulic gradient away from the
reservoir.
For groundwater elevations across the Site to rise above the level of the
reservoir, the reservoir level would have to drop as much as 10 feet. The
drought conditions that would cause this condition would of course also cause
groundwater levels at the Site to drop as well, making it unlikely that the
flow
in this region would reverse for any significant length of time. Even so,
based
on reasonable and conservative estimates of hydraulic conductivity and
porosity,
the hypothetical travel times for transport of pollutants from the Site to the
reservoir can be computed. Assuming a hydraulic conductivity of 100 feet per
day and a porosity of 0.3, the reservoir would have to drop 15 feet without
the
groundwater dropping at all and stay this way for 60 days for groundwater at
the
Site to reach the reservoir. This scenario is not within the realm of
possibility. It is more likely that groundwater levels at the Site would drop
along with the reservoir level, increasing the travel time to the reservoir to
the order of years, long enough that seasonal increases in reservoir level
would
return the gradient to its average direction long before any contaminant
migrating in groundwater could reach the reservoir.
<TABLE>
Table 2. Estimated Groundwater Elevations
<CAPTION>
<S> <C> <C> <C> <C> <C>
Well Estimated GZA (12/88) Groundwater CET (5/89) Groundwater
Elevation depth-to-water elevation depth-to-water elevation
GZA-1 177.11 14.02 163.09 13.208 163.9
GZA-2 176.64 14.2 162.44 13.125 163.51
GZA-3 178.68 16.9 161.78 15.438 163.24
MW-103 175.52 well not installed 5.917 169.6
</TABLE>
These observations indicate that either: 1) a groundwater divide exists
between the reservoir and the Site, or 2) that the southern shore of the
reservoir is located in the zone where surface water recharges groundwater,
and
groundwater flow between the reservoir and the Site is generally towards the
Site. In either case, groundwater quality at the Site should have no
significant impact on water quality in the reservoir, and therefore should not
be classified as GW-1. This opinion is based on logic parallel to that
appearing in 310 CMR 40.0932(5), which allows for exceptions to the GW-1
classification to be made based on local hydrogeologic conditions in the case
of groundwater resources. Specifically, the exceptions are made relative to
groundwater resources when a lack of hydrogeologic connection between the site
and the resource area is shown or the regulated boundaries of a resource area
are shown to be inaccurate based on site-specific data. Although these
provisions are not explicitly granted in the case of surface water resources,
ESS believes that both of these conditions apply to this Site, and concludes
that the applicable groundwater standard for this Site should be GW-2 and GW-3.
5.0 RISK CHARACTERIZATION
A Method 1 risk characterization has been performed in accordance with 310
CMR 40.0970 and 40.0980 of the Massachusetts Contingency Plan (MCP). This
characterization is made based on the residual concentration of several
solvents and TPH existing in areas classified as GW-2 and GW-3, as described
above.
5.1 Exposure Point Concentrations
Exposure point concentrations (EPCs) have been calculated for the
various solvents detected at the Site as the maximum concentration detected in
any well over the period of investigation. These concentrations, along with
the relevant GW-2 and GW-3 standards, are provided in Table 3.
<TABLE>
Table 3.
Maximum Concentrations of TPH and Solvents Detected in Groundwater at the Site
and Relevant GW-2/GW-3 Standards
<CAPTION>
<S> <C> <C> <C> <C> <C>
Compound Maximum Consultant Well Method 1, Method 1,
Concentration Date GW-2 Limit GW-3 Limit
(ppb)
Total Petroleum 6000 Certified 3/89 MW-103 NA 50,000
Hydrocarbons (TPH)
Chlorobenzene 48 ESS 11/92 GZA-1 1,000 500
1,1,1-Trichloroethane14 ESS 11192 GZA-3A 4,000 50,000
Trichlorethene 55 Certified 3/89 MW-101 300 20,000
Ethyl Benzene 16 Certified 3/89 GZA-1 30,000 4,000
Total Xylenes 6.9 Certified 3/89 GZA-1 6,000 50,000
1,3-Dichlorobenzene 9.9 Certified 3/89 GZA-1 10,000 8,000
Trichlorofluoro 58 Certified 3/89 GZA-3A NSA NSA
Methane
1,1-Dichloroethane Trace (5) Certified3/89 GZA-2,3 9,000 50,000
cis- 1,2- Trace (5) Certified 3/89 GZA-3A NA 50,000
Dichloroethylene
Tetrachloroethylene Trace (5) Certified 3/89 MW-101 3,000 5,000
Total 1,2- 8.9 GZA 12/88 GZA-2 NA 50,000
Dichloroethenes
</TABLE>
Notes:
> GZA's screening analysis was not per-formed by an EPA test method.
> NT = Not tested for or well not sampleable (e.g., well not yet
installed [MW-103] or covered over with budding [MW-1011).
> NSA No standard available
> Trace probable presence below detection limit (detection limit)
Potential Receptors and Migratory Pathways
As part of this risk characterization, ESS has considered what potential
receptors and migratory pathways exist at the Site. The dissolved solvent and
TPH concentrations are not large enough to pose a threat to air quality. The
Site is not functionally located in a GW-l area, and the nearest known water
supply wells are located over I mile from the Site. The Cambridge Reservoir,
located 325 feet north of the Site, is upgradient. A wetland south of the
Site,
the likely discharge point for groundwater flowing under the Site, is located
approximately 2,000 feet downgradient. Hobbs Brook, which probably receives
recharge from water flowing through the wetland, is the eventual receptor of
groundwater flowing through the Site. However, during the considerable travel
time between the site and the brook, the low levels of organic compounds
present
will be most likely be greatly diminished due to sorption, biodegradation, and
volatilization.
5.3 Risk Characterization
Based on a comparison of the maximum concentrations of all compounds
detected at the Site to below the applicable Method 1 GW-2/3 standards, ESS
concludes that no significant risk is posed by the presence of residual
contamination at this Site.
6.0 RAO OPINION
After reviewing laboratory data from assessments conducted at the Site,
ESS has reached the following conclusions:
dissolved concentrations of various solvents and TPH are below GW-
2/3 standards;
the contaminants detected in groundwater at the Site will not pose a
significant risk of harm to health, public welfare or the environment;
and the Site meets the requirements for a Class B-1 RAO.
MAP SHOWING LOCATION OF PREMISES IN CLOSE PROXIMITY TO RESERVOIR.
SITE SKETCH OF PREMISES DEPICTING THE LOCATION OF THE VARIOUS MONITORING WELL
SITES.
TABLE 1 RESULTS OF GROUNDWATER ANALYSIS
Table of results of Groundwater Analysis Samples of Various Well Test Sites
taken by various enviornmental engineers from 1988 through 1993. Tests were
done in 1988, 1989, 1992 and 1993. Not all wells were tested each year. The
test well showing the level of total petroleum hydrocarbon level and the test
well showing the trichloroethene level which levels the Massachusetts
Department of Environmental Protection indicated exceeded the public drinking
water standard (GW-1) have not been tested since 1989. The summary of all of
these test results at their highest levels of detection appears in Section 5.1
(of this Exhibit 10.6) as "Table 3 Maximum Concentrations of TPH and Solvents
Detected in Groundwater at the Site and Relevant GW-2/GW-3 Standards."
