Exhibit B-2(i)
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As Executed
SUPPLEMENTED LEASE dated October 14, 1966 between XXXX
XXXXXXX MUTUAL LIFE INSURANCE COMPANY ("Lessor"), a Massachusetts
corporation having its principal office and place of business at
000 Xxxxxxxx Xxxxxx, xx xxx Xxxx xx Xxxxxx, Xxxxxx of Suffolk,
The Commonwealth of Massachusetts, and NEW ENGLAND POWER SERVICE
COMPANY ("Lessee"), a Massachusetts corporation having its
principal office and place of business at 000 Xxxxxx Xxxxxx, xx
xxx Xxxx xx Xxxxxx, Xxxxxx of Suffolk, The Commonwealth of
Massachusetts:
The Lease, dated June 28, 1963, between Lessor and Lessee,
as modified by two Lease Modification Agreements, dated September
1, 1964 and April 30, 1965, respectively, (hereinafter sometimes
referred to as the "Original Lease"), is hereby supplemented and
amended to read as follows:
1. Leased Property -- Term of Lease. Upon the conditions,
limitations, covenants and agreements set forth below, Lessor
hereby leases to Lessee and Lessee hereby leases from Lessor the
following property (hereinafter sometimes collectively referred
to as the "Leased Property"):
All the land (hereinafter sometimes referred to as the
"Phase I Land") described in Part I of Schedule A hereto,
TOGETHER WITH the buildings, structures, facilities,
equipment, paving, surfacing and other improvements, other than
Lessee's Equipment, now or hereafter located thereon, except such
as constitute any New Buildings as defined in the Agreement
referred to in section 5 (all of the foregoing improvements being
hereinafter sometimes referred to as the "Phase I Leased
Buildings"), and the appurtenances thereof (said land,
improvements and appurtenances being hereinafter sometimes
referred to as the "Phase I Property"); and
ALL the land (hereinafter sometimes called the "Phase II
Land") described in Part II of Schedule A, hereto,
TOGETHER WITH the buildings, structures, facilities,
equipment, paving, surfacing and other improvements, other than
Lessee's Equipment, now or hereafter located thereon and such of
the same located on the Phase I Land as constitute all or any
part of the New Buildings as defined in the Agreement referred to
in section 5 (all of the foregoing being hereinafter sometimes
referred to as the "Phase II Leased Buildings"), and the
appurtenances thereof (said land, improvements and appurtenances
being hereinafter sometimes referred to as the "Phase II
Property" and the Phase I Leased Buildings and the Phase II
Leased Buildings being hereinafter sometimes collectively
referred to as the "Leased Buildings".)
SUBJECT, HOWEVER, to (a) the rights, reservations, and
restrictions of record, if any, set forth or referred to in
Schedule A hereto; (b) zoning and building restrictions and
governmental regulations now or hereafter affecting the Leased
Property; (c) such state of facts as an accurate survey would
show; and (d) rights, If any, of parties in possession other than
Lessor;
For an initial term commencing on the date hereof and
expiring at midnight on August 31, 1999, unless this Lease shall
sooner terminate as hereinafter provided; and
For a renewal term or terms as provided in section 34.
2. Basic Rent. Lessee will pay to Lessor, in such coin or
currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and
private debts, at the City Mortgage Department of Lessor at 000
Xxxxxxxx Xxxxxx, Xxxxxx 17, Massachusetts, or at such place or to
such agent as Lessor from time to time may designate, annual
basic rentals (hereinafter sometimes collectively referred to as
"Basic Rent"), over and above the other additional payments to be
made by Lessee as herein provided, of:
A. Phase I Basic Rent. (a) $568,825 during the initial term
of this Lease, payable in installments in advance of (b)
$47,402.09 on the first day of the first full calendar month
included in the initial term of this Lease and on the first day
of each succeeding calendar month. Such basic rental (or, if this
Lease has been renewed as provided in section 34, the Phase I
Basic Rent therein specified) is hereinafter sometimes referred
to as the "Phase I Basic Rent."
B. Phase II Basic Rent. (a) $4,200 during the period from
the date of this Lease to the date of the Lease Modification
Closing provided for in the Agreement referred to in section 5
(which period is herein sometimes referred to as the "preliminary
term" of this Lease), payable in installments in advance as
follows: (b) $210 on the date hereof and (c) $350 on the first
day of each succeeding calendar month; and (x) $ during the
remaining portion of the initial term after the preliminary term
of this Lease, payable in installments in advance of (y) $
on the first day of such remaining portion of such initial term
after the preliminary term of this Lease and on the first day of
each succeeding calendar month [the amounts in (x) and (y) to be
inserted by modification of this Lease pursuant to the Agreement
referred to in section 5]. Such basic rental (or, if this Lease
has been renewed as provided in section 34, the Phase II Basic
Rent therein specified) is hereinafter sometimes referred to as
the "Phase II Basic Rent."
Except as otherwise specifically provided herein, the Phase
I and Phase II Basic Rents shall each be due and payable to
Lessor in each month during the entire respective terms of this
Lease. All rentals, including Phase I Basic Rent and all
additional rentals, required to be paid in respect of this Lease
in connection with the Phase I Property are herein sometimes
referred to as "Phase I Rentals" and all rentals, including Phase
II Basic Rent and all additional rentals, required to be paid in
respect of this Lease in connection with the Phase II Property
are herein sometimes referred to as "Phase II Rentals." During
the preliminary term of this Lease payments of all Phase II
Rentals may be made as provided in the Agreement referred to in
section 5.
3. Additional Rent; Credit Against Rent. A. Lessee will also pay
Lessor as additional yearly rental during the preliminary term of
this Lease the amount, if any, by which (a) the real estate taxes
payable in respect of the Phase I Property for any full calendar
year shall exceed $150,000; (b) such taxes for any portion of a
full calendar year during the term hereof shall exceed a
proportionate amount of $150,000; (c) the cost for any full year
of insurance of the types required by section 20 hereof to be
carried by Lessor in respect of the Phase I Property shall exceed
$12,000; and (d ) the cost for any portion of a full year of such
insurance shall exceed a proportionate amount of $12,000. Such
additional rental shall be paid at least fifteen days before the
respective items of taxes and/or insurance included therein are
due and payable. An amount equal to the amount, if any, by which
(i) such taxes are less than $150,000 and/or (ii) the cost of
such insurance is less than $12,000, for any full year or
proportion for any portion of a full year, shall be credited
against the first rental or rentals payable under this Lease
after receipt by Lessor of the respective bills for such items of
taxes and/or insurance.
B. Lessee will also pay Lessor as additional yearly rentals
during the remainder of the initial term after the preliminary
term of this Lease and during each renewal term of this Lease the
sum of the amounts, if any, by which (a) the real estate taxes
payable in respect of the Leased Property for any full calendar
year shall exceed $275,000; (b) such taxes for any portion of a
full calendar year shall exceed a proportionate amount of
$275,000; (c) the cost for any full calendar year of insurance of
the types required by section 20 hereof to be carried by Lessor
in respect of the Leased Property shall exceed $17,000; and (d)
the cost for any portion of a full calendar year of such
insurance shall exceed a proportionate amount of $17,000. Such
additional rent shall be paid at least fifteen days before the
respective items of taxes and/or insurance included therein are
due and payable. An amount equal to the amount, if any, by which
(i) such taxes are less than $275,000 and/or (ii) the cost of
such insurance is less than $17,000, for any such full calendar
year or proportionately for any such portion of a full calendar
year, shall be credited against the first rental or rentals
payable under this Lease after receipt by Lessor of the
respective bills for such items of taxes and/or insurance.
C. Lessee shall also pay Lessor as additional rent amounts equal
to all betterment assessments imposed on the Phase I Property
during the initial term and each renewal term hereof and on the
Phase II Property during the remainder of the initial term after
the preliminary term hereof and each renewal term hereof; such
payments, if a betterment assessment is payable in installments,
to be paid Lessor as the installments become due or, if a
betterment assessment is payable in a single payment, to be paid
Lessor in equal annual installments, the first installment to be
paid on the due date of the betterment assessment and one
installment on the anniversary date in each of the next nine
succeeding years of the term of this Lease, or each succeeding
year of the remaining term if less than nine years. Lessee will
also, as additional rent, pay all Impositions (such term, and
certain other terms, are defined in section 51), costs, expenses,
liabilities, obligations and other payments which Lessee in any
of the provisions of this Lease assumes or agrees to pay (and
reimburse Lessor for any payments thereof made by Lessor), and,
in the event of any failure by Lessee to pay any of the same,
Lessor shall have all the rights and remedies provided for in
this Lease or by law in the case of nonpayment of the Basic Rent.
Lessee will also pay to Lessor, as additional rent, all amounts
of additional rent and other payments (other than Basic Rent) due
to Lessor from Lessee, and Lessor will also pay to Lessee or give
Lessee credits against rent, as appropriate, all amounts so due
to Lessee from Lessor, under the Original Lease in respect of
items, liability for the payment of which or credit in respect of
which had accrued at the date of this Supplemented Lease and
payment of or credit in respect of which items is not otherwise
required by this Supplemented Lease. Lessee will also pay Lessor,
on demand, as additional rent, interest at the rate of 6 1/2% per
annum on all overdue installments of Basic Rent. The provisions
of this section are subject to section 17 relating to contests.
4. No Abatement, etc. Lessee will pay the Basic Rent to Lessor
and the additional rent to the appropriate payees thereof without
notice or demand by Lessor, except as otherwise specifically
required hereby, and, except as otherwise specifically required
hereby, without abatement, deduction, counterclaim, set-off or
defense, based on any claim against Lessor; Lessee shall not be
entitled to quit, terminate or surrender this Lease, and shall
not be relieved from its obligations to pay the full Basic Rent
and additional rent or from any of its other obligations under
this Lease, by reason of (a) any prevention or curtailment of or
interference with any use of the Leased Property or any part
thereof for any purpose by any Legal Requirement (except as
provided herein in respect of a Taking), or (b) any change of
grade of any abutting street, or (c) any damage to or destruction
of or Taking of the Leased Buildings or successful assertion of
title paramount in the Leased Property or any part thereof
(except as otherwise specifically required hereby).
5. Construction of Leased Buildings. Use of Leased Property.
Lessee will commence and proceed diligently with the construction
and completion of the buildings and improvements on the land
included in the Leased Property as provide in the agreement
between Lessor and Lessee dated September 23, 1966 relating
thereto (herein sometimes called the "Agreement"), a copy of
which is on file at the principal office of Lessor, and will
otherwise duly and punctually perform its obligations thereunder.
Lessee will use or permit the use of the Leased Property in
connection with Lessee's business of supplying of services and
goods generally to New England Electric System, a Massachusetts
voluntary association, its successors and assigns, and its and
their subsidiaries, and, except incidentally and except for use
by Lessee's affiliates and sublessees permitted hereunder in
connection with their respective businesses, will not use or
permit the use of the same for any other purpose without Lessor's
prior written consent. Lessee will not permit any occupancy or
use of any part of the Leased Property contrary to any Legal
Requirement or Insurance Requirement or permit any nuisance in,
at or on the Leased Property or any abandonment or waste of the
Leased Property or any part thereof.
6. Lessee's Equipment. Ail Lessee's Equipment shall be the
property of Lessee, provided that (a) upon the occurrence of any
Event of Default, Lessor shall, to the extent permitted by law,
have (in addition to all other rights) a lien on Lessee's
interest in all Lessee's Equipment (to the extent such a lien may
be created without violation of any other agreement of Lessee
with respect to such Lessee's Equipment) on the Leased Property
as security for all rent, including additional rent, due and
payable under this Lease, and (b) any Lessee's Equipment not
removed by Lessee at its expense within 30 days after any
termination of this Lease shall be considered abandoned by Lessee
and may be appropriated, sold, destroyed or otherwise disposed of
by Lessor without notice to Lessee and without obligation to
account therefor, and Lessee will pay Lessor upon demand all net
costs and expenses incurred by Lessor in removing, storing or
disposing of the same. Lessee will immediately repair at its
expense all damage to the Leased Property caused by any removal
of Lessee's Equipment therefrom, whether effected by Lessee or
Lessor. Lessor shall not be responsible for any loss of or damage
to Lessee's Equipment.
7. Alterations and Additions. Lessee may make, at its expense,
reasonable alterations of and additions to the Leased Buildings
and may construct additional buildings and other improvements on
the Leased Property, provided that in all cases (including
alterations or additions involved in any repair pursuant to
sections 6 or 12) the alteration or addition (a ) does not change
the general character of the Leased Buildings or adversely affect
their fair market value, (b) is effected with due diligence, in a
good and workmanlike manner and in compliance with all Legal
Requirements and Insurance Requirements, (c) is promptly and
fully paid for by Lessee, and (d) is made, in case the estimated
cost exceeds $100,000, either (x) under the supervision of an
architect or engineer satisfactory to Lessor and in substantial
accordance with detailed plans and specifications and cost
estimates approved by Lessor, and after Lessee shall have
furnished to Lessor, if requested, a performance bond, or other
security, satisfactory to Lessor or (y) pursuant to a proposal
satisfactory to Lessor as evidenced by it in writing.
8. Improvements, etc., on Property of Lessor. All buildings,
structures, improvements, fixtures machinery, apparatus,
equipment, changes, alterations, repair, replacements, renewals,
additions. betterments. restoration and rebuilding, erected, made
or installed by Lessee in or upon or used for the operation,
maintenance or protection of the Leased Property, as such, (other
than Lessee's Equipment) shall immediately be and become the
property of Lessor and shall thereafter constitute part of the
leased Property.
9. Impositions. Subject to section 17 relating to contests,
Lessee will pay all Impositions before any interest, penalty,
fine or cost may be added for non-payment, provided that (a) if,
by law, any Imposition may at the option of the payor be paid in
installments, Lessee may exercise such option, and, in such
event. Lessee shall give Lessor prompt written notice of such
exercise and shall pay all such installments (and interest ii
any) becoming due during the term of this Lease as the same
respectively become due and before any further interest or any
penalty, fine or cost may be added thereto; and (b) any
Imposition relating to a period, a part of which is included
within the term of this Lease and a part of which extends beyond
such term, shall, if an Event of Default shall not then exist
under this Lease, be apportioned between Lessor and Lessee as of
the expiration of such term. Lessee will furnish to Lessor and to
each holder of any mortgage on the Leased Property, for
inspection, within 30 days after the date when any Imposition
(unless being contested in conformity with section 17) would
become delinquent, official receipts, or other proof satisfactory
to Lessor or such mortgagee, as the case may be, evidencing the
payment of such Imposition Lessor will pay in full when due and
payable all real estate taxes and betterment assessments in
respect of the Leased Property, except such as are includible in
additional rent and are not paid to Lessor by Lessee when such
additional rent is due, provided, however, that Lessor may
contest, by appropriate legal proceedings the amount or validity
or application, in whole or in part, of any tax or betterment
assessment, provided that (a) such proceedings shall operate to
suspend the collection thereof from the Leased Property, (b)
neither the Leased Property nor any part thereof would be in
substantial danger of being forfeited or lost, and (c) Lessor
shall have furnished such security, if any, as may be required in
the proceedings.
10. Compliance with Legal and Insurance Requirements, etc.
Subject to section 17 relating to contests, Lessee at its expense
will promptly comply with all Legal Requirements, and all
reasonable Insurance Requirements of which Lessee shall have been
given written notice, unless variance therefrom is consented to
in writing by Lessor, whether or not compliance therewith shall
require structural changes in the Leased Buildings, will procure
and maintain all permits, licenses and other authorizations
required for any use of the Leased Property or any part thereof
then being made, and for the lawful and proper installation,
operation and maintenance of all equipment and appliances
necessary or appropriate for the operation and maintenance of the
Leased Property, and will comply with any former instruments of
record affecting the Leased Property or any part thereof at the
time in force.
11. Condition of Leased Property. Lessee is and will be fully
familiar with the physical condition of, the Leased Property from
time to time. Lessor has made and will make no representations as
to the condition of the Leased Property or the fitness or
availability of the Leased Property for any particular use, and
Lessor shall not be liable for any latent or patent defect
therein, as it may exist from time to time.
12. Repairs, etc. Subject to reasonable wear and tear, Lessee
will maintain the Leased Buildings as first class property of the
type of which they consist, will keep the Leased Property and the
sidewalks, curbs, vaults and vault space, if any, adjoining the
Leased Property in good and clean order and condition, and will
make all necessary or appropriate repairs, replacements, renewals
and betterments thereof, structural and non-structural, ordinary
and extraordinary, and foreseen and unforeseen, all at the
expense of the Lessee, except that there shall be credited at
Lessee's option against the rent hereunder in respect of amounts
actually expended by Lessee for exterior repairs of the Leased
Buildings the following amounts: (i) in each year or portion
thereof during the preliminary term of this Lease, an amount in
respect of such actual expenditures for exterior repairs of the
Phase I Leased Buildings not exceeding $10,000 or a part thereof
proportionate to any such portion of a year, and (ii) in each
year or portion thereof during the remaining portion of the
initial term after the preliminary term of this Lease and any
renewal term, an amount in respect of such actual expenditures
for exterior repairs of the Leased Buildings not exceeding
$20,000 or a part thereof proportionate to any such portion of a
year. To the extent any such credit is not so taken in any such
period it may be accumulated and so taken, together with any
credits accumulated under section 12 of the Original Lease, in
any subsequent year or years at any time prior to the termination
or other expiration of this Lease. Upon any such termination or
expiration Lessee shall be compensated by Lessor, by credit
against rent due hereunder or otherwise, for the full aggregate
amount of such accumulated credits (including, without
limitation, credits accumulated under section 12 of the Original
Lease) to the date of such termination or expiration, whether or
not amounts in respect of such credits have actually been
expended by Lessee. Lessee will, at its expense, and will hold
the Lessor harmless from such expense, take all action necessary
to insure that the Leased Property will at all times be provided
with adequate facilities for drainage of surface water and will
promptly comply with all Legal Requirements in such connection.
13. Shoring, etc. Lessee at its expense will do or cause others
to do all shoring of foundations and walls of the Leased
Buildings or of the ground adjacent thereafter, and every other
act, necessary or appropriate for the safety and preservation
thereof by reason of or in connection with any excavation or
other building operation upon the Leased Property or any
adjoining property, whether or not the owner of the Leased
Property shall, by any Legal Requirement, be required to take
such action or be liable for failure to do so.
14. Replacement of Building Equipment. Lessee may, from time to
time, so long as it shall not be in default under this Lease,
remove and dispose of any equipment in the Leased Buildings,
provided that (except as to Lessee's Equipment) Lessee shall
promptly replace such equipment with other equipment at least
equal in value and general utility to that removed.
15. Discharge of Liens, etc. Subject to section 17 relating to
contests, Lessee (unless such be created by Lessor or those
claiming through Lessor and not through Lessee) will not create
or permit to be created or to remain, and will discharge, any
lien, any rights in derogation of Lessor's title to the Leased
Property, any encumbrance or charge on account of any Imposition
or any mechanic's, laborer's, materialman's or vendor's lien
(including any such lien arising out of or due to labor performed
or materials furnished prior to the date of this Lease) or any
mortgage, chattel mortgage, conditional sale or title retention
agreement, or otherwise, upon the Leased Property or any part
thereof, or upon Lessee's leasehold interest therein (other than
general mortgages of Lessee or any of its affiliates securing
publicly held securities of Lessee or its affiliates), provided
that the existence of any mechanic's, laborer's, materialman's or
vendor's lien or right thereto shall not constitute a violation
of this section if payment of the sum involved is not yet due
under the terms of the contract in question. Subject to said
section 17, Lessee will not enter into any contract providing for
the postponement of any such payment for more than 30 days after
completion of the work.
16. No Claims against Lessor. Except as otherwise specifically
contemplated by sections 21 and 25, nothing contained in this
Lease shall constitute the consent or request of Lessor, express
or implied, for the performance of any labor or the furnishing of
any materials or other property in respect of the Leased Property
or any part thereof, nor as giving Lessee any authority to
contract for or permit the rendering of any services or the
furnishing of any materials or other property, so as to permit
the making of any claim against Lessor.
17. Contests. After prior written notice to Lessor and to each
holder known to Lessee, or of record, of any mortgage on the
Leased Property, Lessee may contest, by appropriate legal
proceedings conducted in good faith and with due diligence, the
amount or validity or application, in whole or in part, of any
taxes or assessments includable in additional rent or any
Imposition or other Legal Requirement or any lien, encumbrance or
charge referred to in section 15, provided that (a) in the case
of any such unpaid tax, assessment or Imposition, such
proceedings shall operate to suspend the collection thereof from
Lessor or the Leased Property, (b) in the case of a Legal
Requirement, neither the Lessor nor any mortgagee of the Leased
Property would be in danger of civil or criminal liability for
failure to comply therewith, (c) neither the Leased Property nor
any part thereof would, in the judgment of Lessor or any such
mortgagee, be in substantial danger of being forfeited or lost,
and (d) Lessee shall have furnished such security, if any, as may
be required in the proceedings or reasonably requested by Lessor
or such mortgagee.
18. Utility Services and Parking. Lessee will pay or cause to be
paid all charges for all public or private utility services and
all sprinkler-system and protective services at any time rendered
to or in connection with the Leased Property or any part thereof,
will comply with all contracts relating to any such services, and
will do all other things required for the maintenance and
continuance of all such services. If this Lease shall terminate,
either at the end of any term thereof or otherwise, and Lessee
shall not have purchased the Leased Property as provided in
section 52, Lessee shall proceed diligently to provide Lessor, at
the sole expense of Lessee, with paved parking facilities to the
extent necessary so that Lessor will then have the ownership of
or the perpetual right to use paved parking facilities for at
least 700 automobiles reasonably convenient to the Leased
Buildings; such facilities to be substantially equivalent in
quality with the parking facilities called for by the Plans and
Specifications provided for in the Agreement referred to in
section 5. Such provision may be made either by the construction
of such parking facilities on the Leased Property in a location
selected by Lessor and reasonably adaptable thereto and/or by the
granting to or causing to be granted to the Lessor of perpetual
easements to use and maintain such facilities; provided that if
such termination occurs pursuant to section 23 or 24 and the
entire gross interior floor area of the Leased Buildings (as
computed pursuant to said sections 23 and 24) is not involved in
the damage, destruction or Taking referred to in section 23 or
24, Lessee will so provide such parking facilities for the number
of automobiles which bears the same proportion to 700 as such
gross interior floor area (so computed) not involved in such
damage, destruction or Taking, bears to the total gross interior
floor area of the Leased Buildings (so computed).
19. Lessee's Insurance. Lessee at its expense will maintain or
cause to be maintained with insurers approved by Lessor (a)
public liability insurance and property damage liability
insurance against any accident, injury or damage to any person or
property occurring on or about the Leased Property or any part
thereof in amounts and coverage approved in writing by Lessor,
and (b) appropriate workmen's compensation insurance in respect
of an, work on or about the Leased Property. In each case such
policies of insurance required by this section may be under a
blanket policy approved in writing by Lessor and may have
"deductible" clauses in amounts not exceeding $10,000 in respect
of any one event of casualty or such greater amount as Lessor may
approve in writing.
20. Lessor's Insurance. Lessor, at its expense (except as
otherwise provided herein and in the Agreement), will maintain
throughout the term of this Lease insurance with respect to the
Leased Buildings against loss or damage by fire, lightning,
windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles, smoke, boiler explosion, war risks
(when and to the extent insurance against the same is obtainable
from the United States Government or any agency thereof), and
other risks customarily insured against by persons in businesses
similar to that of Lessee, as determined in good faith by Lessor,
all in amounts not less than the then full insurable value
(actual replacement value less actual physical depreciation,
exclusive of cost of excavations, foundations and footings below
the underside of the lowest basement floor if excluded by the
policy) of the Leased Buildings as determined from time to time
at Lessee's expense when requested by Lessee but not more
frequently than once in any three years. If Xxxx Xxxxxxx Mutual
Life Insurance Company is not the Lessor hereunder, Lessor will
furnish Lessee not more often than annually with reasonable
evidence of such insurance at the written request of Lessee. Xxxx
Xxxxxxx Mutual Life Insurance Company may in any case be a self-
insurer or co-insurer against any risks, and in such event the
cost to Xxxx Xxxxxxx Mutual Life Insurance Company of such self-
insurance shall be deemed to be the lowest cost at which such
insurance could be obtained by Xxxx Xxxxxxx Mutual Life Insurance
Company from a responsible insurer.
21. Restoration if Damage or Destruction. In case there shall
occur any damage to or destruction of any of the Leased Buildings
or any part thereof by hazards to be insured against by Lessor,
Lessee will promptly give written notice thereof to Lessor and,
subject to the provisions of section 23, Lessor at its expense
will promptly commence and complete with due diligence the
restoration, repair, replacement or rebuilding (hereinafter
collectively referred to as "Restoration") of the Leased
Buildings to as nearly as possible their value, condition and
character immediately prior to such damage or destruction, with
such alterations or additions, if any, as may be mutually agreed
upon by Lessor and Lessee.
22. Abatement of Rent. In case there shall occur any damage to or
destruction of any of the Leased Buildings or any part thereof by
hazards to be insured against by Lessor, and such damage or
destruction shall be so extensive as to render the whole or any
part thereof unsuitable for Occupancy by Lessee for the purposes
for which Lessee occupied the same immediately prior to such
occurrence, a just proportion of the Basic Rent, according to the
nature and extent of the injury to the Leased Buildings, shall be
suspended or abated until the Leased Buildings shall have been
repaired or restored by Lessor at its expense to substantially
the same condition they were in immediately prior to such
casualty.
23. Right to Terminate in Case of Certain Damage, etc. In case
there shall occur any damage to or destruction of the Leased
Buildings, (a) if by such damage or destruction 6070 or more of
the gross interior floor area of the building or buildings then
constituting the Leased Buildings has been rendered unsuitable
for occupancy by Lessee for the purposes for which Lessee
occupied the same immediately prior to such occurrence, then
either Lessor or Lessee may terminate this Lease by 30 days'
prior written notice to the other given within 60 days after such
damage or destruction, or (b) if 100% of such floor area has been
so rendered unsuitable, then this Lease shall terminate ipso
facto. Lessor shall not have any claim against Lessee for any
deficiency in the proceeds of insurance recovered on account of
such damage or destruction.
24. Termination as Result of Taking or Title Paramount. In the
event of a Taking of or the successful assertion of title
paramount in the entire Leased Property or the entire Leased
Buildings, this Lease shall terminate ipso facto, and in the
event of a Taking or the successful assertion of title paramount
involving 50% or more of the gross interior floor area of the
building then constituting the Leased Buildings, then either
Lessor or Lessee may terminate this Lease as of the date of such
Taking or successful assertion by 30 days' prior written notice
to the other given within 60 days after such Taking or successful
assertion. Lessor shall not have any claim against Lessee for any
deficiency in the proceeds of awards or insurance recovered on
account of any such Taking or successful assertion, as the case
may be.
25. Taking or Title Paramount not Resulting in Termination. In
the event of a Taking of or the successful assertion of title
paramount in part of the Leased Property or of a temporary
easement or interest therein, not resulting in termination of
this Lease, then this Lease and the term hereof shall continue in
full force and effect and a just proportion of the Basic Rent
according to the nature and extent of the part so taken or
affected shall be suspended or abated until the Leased Property
or what remains thereof not so affected shall be put in proper
condition by Lessor for occupation by Lessee for the purposes for
which Lessee occupied the same immediately prior to such Taking
or successful assertion. and thereafter the Basic Rent shall be
abated for the balance of the term of this Lease according to the
nature and extent of the part so taken or affected. Lessor will,
in any such event, promptly undertake, at its expense, to put in
proper condition the the Leased Property or what remains thereof
for occupation by Lessee for the purposes for which Lessee
occupied the same immediately prior to such Taking or successful
assertion.
26. Damages for Taking. Lessor reserves to itself, and Lessee
assigns to Lessor, all rights to damages accruing on account of
any Taking or by reason of any act of any public or quasi-public
authority (other than changes of grade) for which damages are
payable. Lessee agrees to execute such instruments of assignment
as may be reasonably required by Lessor and to join in any
petition for the recovery of such damages if requested by Lessor,
and to turn over to Lessor any damages that may be recovered in
any such proceeding. It is agreed and understood, however, that
Lessor does not reserve to itself, and Lessee does not assign to
Lessor, any portion of the award allocable to Lessee's Equipment
or specifically paid on account of consequential damages to
Lessee for the disturbance of its occupancy of the Leased
Property under laws in effect at the time of such Taking.
27. Change of Grade. In case the grade of any street abutting on
the Leased Property shall be changed, Lessee, at its expense,
will promptly effect whatever Restoration is necessary to restore
the Leased Property tn substantially its former condition and
utility and, in case the cost of such Restoration shall exceed
Lessee's award and any interest paid in respect thereof, Lessor's
award shall be applied (after deducting all costs, fees and
expenses of Lessor not paid by Lessee incident to the collection
thereof), if Lessee is not in default under this Lease. to
reimburse Lessee for the excess upon receipt by Lessor of
evidence reasonably satisfactory to Lessor of the cost and
completion of such Restoration.
28. Award if Lessee in Default. Anything in this Lease to the
contrary notwithstanding, if at the time of any Taking or any
change of grade, or at any time thereafter, Lessee shall be in
default under this Lease and such default shall continue, Lessor
shall be empowered, in the name of Lessee or otherwise, to file
and prosecute Lessee's claim, if any, for an award on account of
the Taking or change of grade and to collect such award and apply
the same. after deducting all costs, fees and expenses of Lessor
incident to the collection thereof, to the curing of such default
and any other then existing defaults under this Lease; any
balance remaining after such application and after Lessor shall
have received therefrom the amount, if any, required by the
provisions of section 26 (if applicable) to be received by Lessor
on account of rights to damages assignable to Lessor by Lessee,
shall, unless the term of this Lease shall have expired, be paid
to Lessee.
29. Indemnification of Lessor Lessee will protect, indemnify and
save harmless Lessor from and against all liabilities,
obligations, damages, penalties, claims, causes of action, costs,
charges and expenses, including attorneys' fees and expenses,
which may be imposed upon or incurred by or asserted against
Lessor by reason of (a) any accident, injury or damage to any
person or property occurring on or about the Leased Property or
any part thereof, (b) any use, non-use or condition of the Leased
Property or any part thereof, (c) any claim for the performance
of labor or the furnishing of materials or other property in
respect of the Leased Property or any part thereof except to the
extent Lessor is obligated in these respects pursuant to sections
21 and 25, and (d ) any failure on the part of Lessee to perform
or comply with any of the provisions of this Lease. In case any
action or proceeding is brought against Lessor by reason of any
such occurrence, Lessee upon Lessor's request will at Lessee's
expense resist and defend such action or proceeding, or cause the
same to be resisted and defended, either by counsel designated by
Lessee and approved by Lessor, or, where such occurrence is
covered by liability insurance, by counsel designated by the
insurer.
30. Restriction against Mortgages, Assignments, Subleases, etc.
Except to an affiliate and to others for stores for the
convenience of the occupants of the Leased Property, and except
to such others as Lessor may approve in writing, Lessee's
interest in this Lease may not be mortgaged, encumbered,
assigned, subleased or otherwise transferred, in whole or in
part, by Lessee or by operation of law, merger, consolidation or
otherwise and, except as aforesaid, no part of the Leased
Property may be the subject of any license or privilege.
Furthermore, in the case of any such assignment or transfer of
any interest in this Lease, the assignee or transferee shall
execute and deliver to Lessor an instrument, satisfactory in
substance and form to Lessor, whereby such assignee or transferee
assumes all, or a proportionate part, of the obligations of
Lessee under this Lease. From and after any such assignment or
transfer the obligations of each such assignee and transferee and
of the original Lessee named as such in this Lease to fulfill all
of the obligations of Lessee under this Lease shall be joint and
several, and the obligations of such original Lessee under this
Lease shall continue in full force and effect as the obligations
of a principal and not as the obligations of a guarantor or
surety.
31. Assignment of Subrents, etc Lessee hereby irrevocably
assignee to Lessor all rents due or to become due from any
assignee or sublessee of this Lease or any tenant or occupant of
the Leased Property or any part thereof, together with the right
to collect and receive the same, provided that so long as Lessee
is not in default under this Lease, Lessee shall have the right
to collect and receive such rents for its own uses and purposes.
Upon any default by Lessee under this Lease, Lessor shall, until
such default shall have been cured, have absolute title to such
rents and the absolute right to collect the same, provided that
unless Lessor gives written notice to any assignee or sublessee
or any tenant or occupant of the Leased Property permitted
hereunder that Lessee is in default under this Lease no such
assignee, sublessee, tenant or occupant shall be held liable to
Lessor for making payment of such rents to Lessee. Lessor shall
apply to the Basic Rent or additional rent due under this Lease
the net amount (after deducting all costs and expenses of
collection) of any rents so collected and received by it.
32. Performance on Behalf of Other Party. If either Lessee or
Lessor at any time shall fail to make any payment or perform any
act required by this Lease to be made or performed by it, the
other party, without notice to or demand upon the party so
failing and without waiving or releasing the party so failing
from any obligation or Event of Default under this Lease, may
(but shall be under no obligation to) at any time thereafter make
such payment or perform such act for the account and at the
expense of the party so failing. All sums so paid and all costs
and expenses (including, without limitation, attorneys' fees and
expenses) so incurred, together with interest thereon at the rate
of 6 1/2% per annum from the date of payment or incurring, shall
be paid by the party so failing to the other party on demand,
and, if Lessee is the party so failing, shall constitute
additional rent payable by Lessee under this Lease.
33. Entry by Lessor. Lessor and its authorized representatives
shall have the right to enter the Leased Property at all
reasonable times (a) for the purpose of inspecting the same or
for the purpose of doing any work under sections 21, 25 or 32,
and may take all such action thereon as may be necessary or
appropriate for any such purpose (nothing contained in this Lease
or otherwise shall create or imply any duty upon the part of
Lessor to make any such inspection, or do any such work except as
provided in sections 21 and 25), and (b) for the purpose of
showing the Leased Property to prospective purchasers or
mortgagees and, at any time within 12 months prior to the
expiration of the then current term of this Lease (unless Lessee
theretofore shall have given Lessor written notice of its
election to purchase the Leased Property or unless Lessee, if
entitled to renew this Lease for a further term, theretofore
shall have given Lessor written notice of its election to renew),
for the purpose of showing the same to prospective tenants, and
within such period to attach to the Leased Buildings
advertisements for sale or letting. No such entry shall
constitute an eviction of Lessee.
34. Renewal Terms. The term of this Lease may, at the option of
Lessee (evidenced by written notice given to Lessor at least 12
months prior to the expiration of the initial term or then
current renewal term), be extended for five years (such period
being herein sometimes referred to as a "renewal term"), but such
right of extension may not be exercised for more than three such
renewal terms, provide, in each case, that the Lessee shall not
be in default under this Lease and that this Lease shall not have
been theretofore terminated for any reason and provided further,
that at the time of giving, any notice to renew as aforesaid, (1)
the Guaranty of this Lease of even date herewith executed by New
England Electric System ("XXXX") shall be fully in effect on the
part of XXXX or a duly organized and validly existing successor
entity to XXXX which successor shall, (a) at the time of becoming
such successor, have acquired all of XXXX' right, title and
interest in, to and under substantially all of the business and
assets of XXXX of every kind and nature whatsoever (whether or
not subject to the then liabilities of XXXX) owned or purported
to be owned by XXXX at such time and (b) to the satisfaction of
Lessor, have assumed all of the obligations of XXXX under said
Guaranty; and (2) either XXXX or its said successor, as the case
may be, shall then have a legal existence pursuant to its
charter, declaration of trust or other governing instrument under
or pursuant to which it is then organized and then exists
extending to or beyond the end of the renewal term in respect of
which such notice of election is given. Each renewal term shall
be upon the same terms, covenants and conditions as are provided
in this Lease in respect of the initial term, except that Lessee
shall have no option to extend the term of this Lease beyond the
last such renewal term and except that the Phase I Basic Rent for
each such renewal term shall be an amount per annum equal to
$330,730 and the Phase II Basic Rent for each such renewal term
shall be an amount per annum equal to $292,900 less $2,780 or a
proportionate part thereof for each $100,000 or part thereof by
which the Basic Cost to Lessor is less than $5,500,000. The Phase
I and Phase II Basic Rents for each renewal term shall each be
payable in equal monthly installments in advance on the first day
of each calendar month. A new lease need not be executed upon the
exercise of any of these options, and this Lease will remain in
full force and effect, changed only as to matters specified in
this section.
35. Events of Default. If any one or more of the following events
(herein sometimes called an "Event of Default" or "Events of
Default") shall happen:
(a) if default shall be made in the due and punctual payment
of any Basic Rent, when and as the same shall become due and
payable; or
(b) if default shall be made in the due and punctual payment
of any additional rent payable under this Lease, when and as the
same shall become due and payable, and such default shall
continue for a period of 10 days; or
(c) if default shall be made by Lessee in the performance of
or compliance with any of the covenants, agreements, terms or
conditions contained in this Lease other than those referred to
in the forgoing subdivisions (a) and (b), and such default shall
continue for a period of 30 days after written notice thereof
from Lessor to Lessee; or
(d) if Lessee shall file a voluntary petition in bankruptcy
or shall be adjudicated a bankrupt or insolvent, or shall file
any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief for itself under any
present or future federal, state or other statute, law or
regulation, or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Lessee or
of all or any substantial part of its properties or of the Leased
Property. or shall make any general assignment for the benefits
of creditors' or shall admit in writing its inability to pay its
debts generally as they become due; or
(e) if a petition shall be filed against Lessee seeking any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or
future federal, state or other statute, law or regulation, and
shall remain undismissed or unstayed for an aggregate of 90 days
(whether or not consecutive), or if any trustee, receiver or
liquidator of Lessee or of all or any substantial part of its
properties or of the Leased Property shall be appointed without
the consent or acquiescence of Lessee and such appointment shall
remain unvacated or unstayed for an aggregate of 90 days (whether
or not consecutive);
then and in any such event Lessor at any time thereafter may give
written notice to Lessee specifying the occurrence giving rise to
such Event of Default or Events of Default and stating that this
Lease and the term hereby demised shall expire and terminate on
the date specified in such notice, which shall be at least 10
days after the giving of such notice, and upon the date specified
in such notice, subject to the provisions of section 37 relating
to the survival of Lessee's obligations, the term of this Lease
and the estate and interests hereby demised shall expire and
terminate by limitation and all rights of the Lessee under this
Lease shall cease unless before such date (i) all arrears of
Basic Rent and additional rent and all other amounts payable by
Lessee under this Lease, together in each case with interest
thereon at the rate of 63470 per annum from the time when the
same became due and payable, and all costs and expenses
(including, without limitation, attorneys' fees and expenses)
incurred by or on behalf of Lessor in the premises, shall have
been fully paid by Lessee, and (ii) all other defaults at the
time existing under this Lease shall have been fully cured and
made good or secured to the satisfaction of Lessor. Lessee will
pay, as additional rent hereunder, all costs and expenses
incurred by or on behalf of Lessor, including, without
limitation, attorneys' fees and expenses, occasioned by any
default by Lessee under this Lease.
36. Repossession, Re-letting, etc., by Lessor. At any time after
any expiration of the term of this Lease as provided in section
35, Lessor, without further notice and with no liability to
Lessee, may repossess the Leased Property, by force, summary
proceedings, ejectment or otherwise, and may remove Lessee and
all other persons and any and all property from the Leased
Property. After any such expiration, Lessor shall use reasonable
efforts and diligence (a) to re-let the Leased property for such
term or terms and on such terms and conditions as are practicable
in the light of all the circumstances then existing and (b) to
collect and receive the rents therefrom, all as determined in
good faith by Lessor, and Lessor shall not otherwise be liable
for any failure to collect any rent due upon any such re-letting.
37. Survival of Lessee's Obligations; Damages. No expiration of
the term of this Lease or repossession of the Leased Property, as
provided in sections 35 and 36, shall relieve Lessee of its
liability and obligations under this Lease, all of which shall
survive any such expiration or repossession.
(A) In the event of any such expiration, Lessee shall pay to
Lessor the Basic Rent and all additional rent and other charges
required to be paid by Lessee up to the time of such expiration,
and thereafter Lessee, until the end of what would have been the
term of this Lease in the absence of such expiration and whether
or not the Leased Property or any part thereof shall have been
re-let, shall be liable to Lessor for, and shall pay to Lessor,
as and for liquidated agreed current damages for Lessee's
default:
(a) the Basic Rent (less an amount equal to $10,000 per
annum if such Basic Rent would have been due during the
preliminary term of this Lease and less an amount equal to
$20,000 per annum if such Basic Rent would have been due
during the remaining portion of the initial term after the
preliminary term of this Lease or any renewal term hereof)
and all additional rent, less any credits provided for in
section 3, and other charges which would be payable under
this Lease by Lessee if the term of this Lease had not
expired, less
(b) the net proceeds, if any (which shall include,
whether or not paid to Lessor, all amounts paid by the
lessee under such re-letting specifically in respect of real
estate taxes on the Leased Property and up to $17,000 in
each year paid by the lessee under such re-letting
specifically in respect of insurance of the types required
to be carried by Lessor by section 20), of any re-letting
effected for the account of Lessee pursuant to the
provisions of section 36, after deducting all Lessor's
expenses in connection with such re-letting, including,
without limitation, all repossession costs, brokerage
commissions, legal expenses, attorneys' fees, expenses of
employees, alteration costs, and expenses of preparation for
such re-letting (Lessor's expenses shall not include
expenses for real estate taxes and expenses up to $17,000 in
any year for insurance of the types required to be carried
by Lessor by section 20).
Lessee shall pay such current damages to Lessor monthly on the
days on which the Basic Rent would have been payable under this
Lease if the term of this Lease had not expired, and Lessor shall
be entitled to recover the same from Lessee on each such day.
If any statute or rule of law governing a proceeding in which
such liquidated final damages are to be proved shall validly
limit the amount thereof to an amount less than the amount above
agreed upon, Lessor shall be entitled to the maximum amount
allowable under such statute or rule of law.
(B) At any time after such expiration, Lessee may (i) if such
expiration is during the preliminary term of this Lease, pay to
Lessor a sum equal to the Basic Cost to Lessor plus an amount
equal to the aggregate of the discounted values of the monthly
installments of the Phase I Basic Rent (less an amount equal to
$10,000 per annum) from the date of such payment to the date the
then current term of this lease would have normally expired had
such expiration not occurred, obtained by the monthly application
of a discount rate of 5 1/2% per annum or (ii) if such expiration
is during the remaining portion of the initial term after the
preliminary term of this Lease or during any renewal term hereof,
an amount equal to the aggregate of the discounted values of the
monthly installments of the aggregate of the Phase I and Phase II
Basic Rents (less an amount equal to $20,000 per annum) from the
date of such payment to the date the then current term of this
Lease would have normally expired had such expiration not
occurred, obtained by the monthly application of a discount rate
of 5 1/2% per annum, whereupon, after such payment, all of
Lessee's liabilities and obligations for the payment of Basic
Rent under this Lease, except such as have theretofore accrued
and remain unsatisfied, shall cease. In such event, Lessee shall
be entitled to be paid by Lessor, at least annually, until the
then current term of this Lease would have expired had such
expiration not occurred, an amount (which together with other
such amounts paid by Lessor to Lessee from and after such
election shall not be in excess of the total rentals that would
be payable by Lessee during the entire remaining portion of the
then current term of this Lease) equal to the net proceeds
received by Lessor from any re-letting of the Leased Property
(which shall include, whether or not paid to Lessor, all amounts
paid by the lessee under such re-letting specifically in respect
of real estate taxes on the Leased Property and up to $17,000 in
each year paid by the lessee under such re-letting specifically
in respect of insurance of the types required to be carried by
Lessor in section 20) after all Lessor's expenses in connection
with such re-letting, including, without limitation, all
repossession costs, brokerage commissions, legal expenses,
attorneys' fees, expenses of employees, alteration costs, and
expenses of preparation for such re-letting (Lessor's expenses
shall not include expenses for real estate taxes and expenses up
to $17,000 in any year for insurance of the types required to be
carried by Lessor by section 20), all as determined by Lessor in
accordance with Lessor's accounting practices and principles,
provided, however, that at any time, prior to the time the
current term of this Lease in effect at the time of such
expiration would have expired but for such expiration, when
Lessor has re-let or re-lets the Leased Property or any part
thereof, it will, upon the written request of Lessee, in respect
of any such re-letting which is made under a lease for a term of
years to a lessee who, or whose obligations under such lease are
guaranteed by a guarantor who, in the reasonable judgment of
Lessor, is a credit risk substantially as good as Lessee and New
England Electric System, pay to Lessee, in lieu of that portion
of the annual payments of net proceeds previously provided for in
this sentence which are of the character of the proceeds included
in the payment of discounted installments provided for below, an
amount (which together with other such amounts shall not be in
excess of the amount that Lessee would have been entitled to pay
to Lessor in lieu of the annual payments of net proceeds
previously provided for in this sentence had this Lease so
expired on the date of such payment by Lessor) equal to the
aggregate of the discounted values of the installments of the net
proceeds to be received under any such re-letting that are not of
the character of additional rent under this Lease, including in
such proceeds any amounts, whether or not paid to Lessor, up to
$275,000 per annum payable by the lessee under such re-letting
specifically in respect of real estate taxes on the Leased
Property and any amounts up to $17,000 per annum payable by the
lessee under such re-letting specifically in respect of insurance
of the types required to be carried by Lessor by section 20, from
the date of such payment to the earlier of (a) the date the then
current term of the lease under which such re-letting is effected
would normally expire or (b) the time the current term of this
Lease in effect at the time of such expiration of this Lease
would have expired but tor such expiration of this Lease,
obtained by the application, at such times as installments of
such rents fall due, of a discount rate of 5 1/2% per annum , and
provided, further, that if in any year during such period the
real estate taxes on the Leased Property are less than $270,000,
the Lessor will compensate Lessee by credit against additional
rent or otherwise for the amount by which such taxes are less
than $275,000; Lessor shall also pay to Lessee, as received, any
additional such proceeds up to an a nouns equal to the amount by
which such proceeds theretofore paid by Lessor to Lessee have
been, since the date of such election, less than the aggregate of
the installments of Basic Rent due from the date of such
election.
(C) At any time after any such expiration, whether or not
Lessor shall have collected any current damages under (A) above
and whether or not any action shall have been taken under (B)
above, Lessor shall be entitled to recover from Lessee, and
Lessee shall pay to Lessor, within 30 days after demand as and
for liquidated and agreed final damages for Lessee's default and
in lieu of all damages beyond the date of such payment, an amount
equal ro the excess, if any, of
(x) The Basic Rent (less an amount equal to $10,000 per
annum if such Basic Rent would have been due during the
preliminary term of this Lease and less an amount equal to
$20,000 per annum if such Basic Rent would have been due
during the remaining portion of the initial term after the
preliminary term of this Lease) and additional rent and
other charges which would be payable under this Lease from
the date of such demand (or, if it be earlier, the date to
which Lessee shall have satisfied in full its obligation
under this section to pay current damages) for what would be
the then unexpired term of this Lease if the same remained
in effect.
over
(y) the then fair net rental value of the Leased
Property for the same period,
minus a part of any amount paid by Lessee to Lessor under (B)
above equal to the amount that Lessee would have been entitled to
pay to Lessor under (B) above had such payment been made on the
date of such payment of liquidated damages and plus a part of any
amount paid by Lessor to Lessee under (B) above equal to the
amount that Lessor would have had to pay to Lessee under (B)
above had such payment been requested and made on the date of
such payment of liquidated damages, whereupon, after such
payment, all of Lessee's liabilities and obligations under this
Lease, except such as have theretofore accrued and remain
unsatisfied, shall cease.
38. Lessee's Waiver of Rights. In the event of any expiration of
the term of this Lease, Lessee, so far as permitted by law,
hereby expressly waives (a) any notice of re-entry or of the
institution of legal proceedings to that end, (b) any right of
redemption or re-entry or re-possession or to restore the
operation of this Lease, (c) any right to a trial by jury in the
event of summary proceedings, and (d) the benefits of any laws
now or hereafter in force exempting property from liability for
rent or for debt.
39. No Waiver, etc., by Lessor. No failure by Lessor to insist
upon the strict performance of any provision of this Lease or to
exercise any right, power or remedy consequent upon a breach
thereof, and no acceptance of full or partial rent during the
continuance of any such breach, shall constitute a waiver of any
such breach or provision. No waiver of any breach shall affect or
alter this Lease which shall continue in full force and effect
with respect to any other then existing or subsequent breach
thereof.
40. Lessor's Remedies Cumulative, etc. Each right, power and
remedy of Lessor provided for in this Lease shall be cumulative
and concurrent and shall be in addition to every other right,
power or remedy provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise, and the
exercise or beginning of the exercise by Lessor of any one or
more of the rights, powers or remedies provided for in this Lease
or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise
by Lessor of any or all other such rights, powers or remedies.
41. Surrender of Leased Property. Lessee shall, upon any
expiration or earlier termination of this Lease peaceably vacate
and surrender to Lessor the Leased Property in good order,
condition and repair (ordinary wear and tear, and damage,
destruction, successful assertions of title paramount and Takings
referred to in sections 21 and 25 excepted) except as permitted
by sections 23 and 24.
42. Quiet Enjoyment. Lessee, upon paying the Basic Rent and all
additional rent and other charges provided for in this Lease and
performing and complying with all the provisions of this Lease,
shall. in addition to its rights under sections 24 and 25,
lawfully and quietly hold, occupy and enjoy the Leased Property
during the terms of this Lease without hindrance or molestation
of Lessor, or others claiming through Lessor and not through
Lessee, subject, however, to the matters referred to in section 1
and subject to any Taking and to any acts of God or the public
enemy or the armed forces of the United States.
43. Conveyance by Lessor. In case Xxxx Xxxxxxx Mutual Life
Insurance Company, the original Lessor hereunder, or any
successor owner of the Lease Property, shall convey or otherwise
dispose of the Leased Property, all liabilities and obligations
on the part of said Company or successor owner as Lessor under
this Lease accruing thereafter shall terminate, and thereupon all
such liabilities and obligations shall be binding upon the new
owner.
44. Certificate as to Defaults, etc. Within 90 days after the end
of each calendar year, Lessee will furnish to Lessor a
certificate signed by the President or a Vice President and the
Treasurer or an Assistant Treasurer of Lessee to the effect that
there exists no condition or event which constitutes an Event of
Default, or which, after notice or lapse of time or both, would
constitute an Event of Default, or, if any such condition or
event exists, specifying the nature and period of existence
thereof and what action Lessee is taking or proposes to take with
respect thereto.
45. Estoppel Certificate by Lessee. Lessee at any time or from
time to time at the request of Lessor will execute, acknowledge
and deliver to Lessor a certificate by Lessee certifying (a) that
this Lease is unmodified and in full force and effect (or, if
there have been modifications, that the same is in full force and
effect as modified and stating the modification), (b) whether or
not there are then existing any offsets or defenses against the
enforcement of any of the provisions of this Lease (and, if so,
specifying the same and (c) the dates, if any, to which the Basic
Rent and additional rent and other charges have been paid in
advance. Any such certificate may be relied upon by any
prospective purchaser or mortgagee of the Leased Property or any
part thereof.
46. Furnishing of Financial Statements, etc. So long as Lessor
shall be Xxxx Xxxxxxx Mutual Life Insurance Company, Lessee will
furnish, or cause to be furnished, to Lessor
(a) as soon as practicable after the end of each fiscal year
and in any event within 120 days thereafter, a balance sheet of
Lessee and of New England Electric System (in consolidated form
if either shall have any consolidated subsidiaries) as at the end
of such year and a statement of income and of surplus of Lessee
and of New England Electric System (in consolidated form if
either shall have any consolidated subsidiaries) for such year,
setting forth in each case in comparative forte corresponding
figures for the previous fiscal year, all in reasonable detail
and certified (except for statements concerning Lessee, which may
be certified by a responsible financial officer of Lessee) by
independent public accountants of recognized standing selected by
New England Electric System and approved by Lessor; and
(b) with reasonable promptness, such other information
regarding Lessee and New England Electric System and the Leased
Property and the use thereof as Lessor from time to time may
reasonably request.
47. Acceptance of Surrender. No surrender to Lessor of this Lease
or of the Leased Property or any part thereof or of any interest
therein by Lessee shall be valid or effective unless required by
the provisions of this Lease or unless agreed to and accepted in
writing by Lessor.
48. Joinder of Lessor. Lessor shall not be required to join in
any contest referred to in section 1, unless any Legal
Requirement requires that such contest be brought by or in the
name of Lessor, in which event Lessor shall join in such contest
or permit the same to be brought in its name, provided that (a)
Lessee shall pay all expenses in connection therewith and
indemnify and save harmless Lessor from and against the same and
any loss and (b) Lessor shall not be required to join in such
contest or permit the same to be brought or continued in its name
or to take any action in connection therewith if such contest or
action would in Lessor s opinion be prejudicial to its best
interest as owner of the Leased Property or otherwise.
49. Occupant Agent for Service. Lessee hereby irrevocably
constitutes and appoints such corporation, association,
partnership, individual or other entity as from time to time
shall be in actual possession of the Leased Property as the agent
and attorney-in-fact of Lessee to accept service of process in
any action, suit or proceeding, by Lessor relating to this Lease
or the Leased Property, and hereby irrevocably submits, for the
purposes of any such action, suit or proceeding, to the
jurisdiction of the courts of all jurisdictions in which the
Leased Property is situated, provided that a copy of any process
so served shall be mailed forthwith to Lessee as provided in
section 50.
50. Notices, etc. All notices, demands, requests and other
instruments under this Lease shall be in writing, and shall be
considered properly given if sent by United States registered or
certified mail, postage prepaid, (a) if to Lessee, addressed to
Lessee at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at
such other address as Lessee from time to time may have
designated by written notice to Lessor, and (b) if to Lessor,
addressed to Lessor at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, Attention: City Mortgage Department, or at such other
address as Lessor from time to time may have designated by
written notice to Lessee.
51. Definitions. As used herein the following terms have the
following respective meanings:
additional rent: as defined in section 3.
affiliate: an entity controlling, controlled by or under common
control with Lessee.
Agreement: as defined in section 5.
Basic Cost to Lessor: $70,000 plus the Cost of the New Buildings
from time to time as defined in the Agreement
Basic Rent: as defined in section 2.
default: any failure on the part of Lessee to perform or comply
with any of the provisions of this Lease, whether or not
constituting an Event of Default.
Event of Default: as defined in section 35.
Impositions: all water, sewer and other rents, rates and charges,
excises, levies, license fees, permit fees and other
authorization fees and all other charges (in each case whether
general or special, ordinary or extraordinary, or foreseen or
unforeseen), of every character (including all penalties or
interest thereon) which at any time during or in respect of any
term of this Lease may be assessed, levied, confirmed or imposed
on or in respect of or be a lien upon (a) the Leased Property or
any part thereof or any rent therefrom or any estate, right or
interest therein, or (b) any occupancy, use or possession of the
Leased Property or any part thereof, other than any taxes,
assessments (including, without limitation, assessments for
public improvements or benefits whether or not commenced or
completed during the term of this Lease), and other than any
franchise, capital stock or similar tax of Lessor, or any income
or excess profits tax of Lessor determined on the basis of its
general income or revenues or any estate, inheritance,
succession, gift, capital levy or similar tax of Lessor.
Insurance Requirements: all terms and provisions of each
insurance policy covering or applicable to the Leased Property or
any part thereof, all requirements of the issuers of all such
policies, all orders, rules, regulations and other requirements
of the National Board of Fire Underwriters (or any other body
exercising similar functions), and all reasonable rules and
regulations of Xxxx Xxxxxxx Mutual Life Insurance Company in
respect of any risks required to be insured against by it
hereunder as to which it is a self-insurer, applicable to or
affecting the Leased Property or any part thereof or any use or
condition of the Leased Property or any part thereof.
Lease Modification Closing: as defined in the Agreement referred
to in section 5.
Leased Buildings: as defined in section 1.
Leased Property: as defined in section 1.
Leased Requirements: all statutes, codes, laws, acts, ordinances,
by-laws, orders, judgments, decrees, injunctions, rules,
regulations, permits, licenses, authorizations, directions and
requirements of all federal, state, county, municipal and other
governments, departments, commissions, boards, courts,
authorities, officials and officers, foreseen or unforeseen,
ordinary or extraordinary, which now or at any time hereafter may
be applicable to the Leased Property or any part thereof, or any
of the streets, alleys, passageways, sidewalks, curbs, gutters,
vaults and vault space adjoining the Leased Property or any part
thereof, or any use, manner of use or condition of the Leased
Property or any part thereof.
Lessee's Equipment: all machinery (whether or not affixed to the
Leased Building), furniture, furnishings, and other personal
property, other than items for which the Lessor made
reimbursement of the cost to the Lessee, not used or procured for
use in connection with the operation, maintenance or protection
of the Leased Building, as such, installed by Lessee in the
Leased Building.
Phase I Basic Rent: as defined in section 2.
Phase II Basic Rent: as defined in section 2.
Phase I Land: as defined in section 1.
Phase I Leased Buildings: as defined in section 1.
Phase I Property: as defined in section 1.
Phase II Land: as defined in section 1.
Phase II Leased Buildings: as defined in section 1.
Phase II Property: as defined in section 1.
Phase I Rentals: as defined in section 2.
Phase II Rentals: as defined in section 2.
preliminary term (of this Lease): as defined in section 2.
Restoration: as defined in section 21.
Taking: a taking of all or part of the Leased Property, or any
interest therein or right accruing thereto, as the result of or
in lieu of condemnation or eminent domain.
term of this Lease; term hereof: the initial term of this Lease
and any renewal term of this Lease for which Lessee shall have
exercised its renewal option (initial term and renewal term are
defined in sections 1 and 34).
52. Purchase of Property. Lessee may, by written notice to Lessor
given not more than thirty nor less than eighteen months prior to
the end of the initial term or any renewal term of this Lease
elect to have the Property appraised by three qualified
appraisers, one of whom shall be promptly selected by Lessor, one
of whom shall be promptly selected by Lessee and one of whom
shall be promptly selected by said two appraisers selected by
Lessor and Lessee, which appraisers shall undertake, at Lessee's
sole expense, to appraise the Property at least by the thirtieth
day before the beginning of the last year of the then current
term of this Lease. Upon receipt of a written appraisal agreed
upon in writing by at least two of said appraisers, Lessee may,
by written notice to Lessor given prior to the beginning of such
last year, elect and, subject to obtaining necessary approvals of
regulatory authorities having jurisdiction, shall thereupon
become obligated to purchase the Leased Property at any time
designated in such notice during such last year and at least
sixty days after the date of such notice. for a Purchase Price
equal to the then value of the Leased Property as appraised by
said appraisers, as aforesaid which Purchase Price shall be
increased by an amount equal to the net amount theretofore
expended by Lessor to restore the Leased Property after any
damage thereto or destruction or Taking thereof or successful
assertion of title paramount thereto which occurred prior to such
appraisal, and is reflected in such appraisal, and which Purchase
Prices shall be decreased by the appraised amount of any loss in
value of the Leased Property due to any damage, destruction.
successful assertion of title paramount or Taking referred to in
sections 21, 23, 24 or 2: which occurred after such appraisal,
and is not reflected in such appraisal, to the extent that such
loss has not been restored by Lessor such appraised amount to be
determined by said appraisers as soon as possible after the
occurrence involving such decrease in value in the same manner as
the Purchase Price was determined, provided, that such Purchase
Price shall in no event be less than $950,000 if such purchase is
made during the last year of the initial term of this Lease nor
less than $665,000 if such purchase is made during the last year
of the first renewal term of this Lease. nor less than $380,000
if such purchase is made during the last year of the second
renewal term of this Lease. If necessary approvals of regulatory
authorities have not been obtained within 90 days of Lessee's
notice of election, such election shall be voided without
liability to Lessee or Lessor, and Lessee may elect, by written
notice to Lessor given within 10 days after said 90-day period to
extend this Lease for any renewal term or terms provided for in
sections 34, notwithstanding the fact that said notice would not
otherwise be timely under said section 34.
If Lessee shall so notify Lessor, Lessor shall, on the date
designated in such notice, furnish to Lessee at the place to
which service of notices upon Lessee is then to be given under
section 50 of this Lease, a quitclaim deed to the Leased
Property, conveying to Lessee a good and marketable title in fee
simple to the Leased Property, free and clear of all mortgages,
liens, charges, encumbrances, easements, conditions and rights of
re-entry or forfeiture, subjects only to: (a) this Lease; (b)
matters, inc tiding, without limitation, those set forth in
Schedule A hereto, existing, at June 28, 1963 to the extent such
matters relate to the Phase I Property, and existing at the date
of this Lease to the extent such matters relate to the Phase II
Property; (c) all taxes, special assessments and Impositions and
liens required to be paid as additional rent or otherwise or
discharged by the Lessee under any of the provisions of this
Lease; (d ) acts done by the Lessee hereunder or by Lessor at the
request of or with the consent of Lessee, and claims by persons
claiming by, through or under the Lessee; and ( e ) all Takings,
and all other matters, if any, to which this Lease is subject
other than matters created by the Lessor hereunder or at the
request of or with the consent of Lessor, and by persons, other
than the Lessee and those claiming by, through or under the
Lessee, claiming by, through or under the Lessor. If Lessor is
unable, with the exercise of due diligence, to convey such title
to Lessee, in addition to any other remedies conferred by law,
Lessee may elect either (a) to take the title as it then is, and
deduct from the Purchase Price liens or encumbrances of an
ascertainable amount, or (b) to terminate its obligation to
purchase the property, in which event the Lessee may
(notwithstanding tile fact that the Lessee may have elected to
extend the term hereof, as provided in section 34) by notice in
writing given to the Lessor within 3 months after the date of
such failure, terminate this Lease as of the last day of any
succeeding month, provided that not more than 6 full calendar
months shall elapse between the date of such failure and the date
of such termination or (c) to extend this Lease for any renewal
term or terms as provided in section 34 upon written notice
thereof given to Lessor within 2 months after the date of such
failure or the earlier delivery by Lessor of written notice that
it will so fail (notwithstanding the fact that such notice would
not otherwise be timely under section 34). If such 2-month period
extends beyond the end of any term of this Lease such term shall
be deemed to be extended to the end of such period or the earlier
election by Lessee so to extend this Lease.
53. Miscellaneous. Wherever in this Lease it is provided that any
act or thing shall require the consent or approval of the Lessor,
such requirement shall be deemed to include a provision that such
consent or approval shall not be unreasonably withheld. If any
provision of this Lease or any application thereof shall be
invalid or unenforceable, the remainder of this Lease and any
other application of such provision shall not be affected
thereby. Neither this Lease nor any term or provision hereof may
be changed, waived, discharged or terminated orally, but only by
an instrument in writing signed by the party against which the
enforcement of the change, waiver, discharge or termination is
sought. This lease shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of
Massachusetts. The captions in this Lease are for convenience of
reference only and shall in no way define, limit or describe any
of the provisions of this Lease. This Lease may be executed in
several counterparts, each of which shall be an original but all
of which shall constitute but one and the same instrument. The
covenants and agreements of this Lease shall, subject to the
provisions of this Lease, bind and inure to the benefit of
Lessor, its successors and assigns, and Lessee, its successors
and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to
be executed and their respective corporate seals to be hereunto
affixed and attested by their respective officers hereunto duly
authorized.
XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY,
Lessor
(CORPORATE SEAL)
Attest: Xxxxxxx X. Xxxxxx By Xxxxxx X. Xxxxxxx, Xx.
Assistant Secretary Vice President
Witness: Xxxxxx X. Xxxxx
NEW ENGLAND POWER SERVICE
COMPANY,
Lessee
Attest: Xxxxxxx X. Xxxx By Xxxxxx X. Xxxxxx
Secretary President
Witness: Xxxx X. Xxxx
Xxxxxx X. Xxxxx, Xx.
(CORPORATE SEAL)
SCHEDULE A
PART I
All and the same premises conveyed to Xxxx Xxxxxxx Mutual
Life Insurance Company, Grantee, by Massachusetts Electric
Company, Grantor, by deed dated June 19, 1963 duly recorded with
Worcester District Registry or Deeds and therein described as
follows:
"A certain tract or parcel of land with the buildings
thereon situated on the Boston-Worcester Turnpike State Highway
Route 9 in Westborough, Worcester County, Massachusetts, being
more particularly bounded and described as follows:
Commencing at the most northwesterly corner of the
premises hereby conveyed at a point on said State Highway,
said point being N. 89 deg. 07'44" E., 365.23 feet from a
stake at the northwesterly corner of land of the Grantor--
said last mentioned point being N. 89 deg. 07' 44" E.,
179.65 feet from a Massachusetts highway bound;
thence running N. 89 deg. 07' 44" E., 678.12 feet to a
Massachusetts highway bound;
thence running S. 0 deg. 52' 16" E., 15 feet to a
Massachusetts highway bound;
thence running N. 89 deg. 07' 44" E., 167 feet to a
Massachusetts highway bound;
thence running N. 0 deg 52' 16" W., 15 feet to a
Massachusetts highway bound;
thence running N. 89 deg. 07' 44" E., 290.66 feet to a point
which is S. 89 deg. 07' 44" W., 19.34 feet from a Massachusetts
highway bound--said last five courses and distances being by said
Xxxxxx-Xxxxxxxxx Xxxxxxxx Xxxxx Xxxxxxx Xxxxx 0;
thence running S. 20 deg. 21' 30" W., 336.37 feet to a
point;
thence running S. 70 deg. 41' 44" W., 525.67 feet to a
point;
thence running S. 19 deg. 18' 16" E., 292.60 feet to a
point;
thence running S. 14 deg. 48' 40" E., 318.27 feet to a
point;
thence running S. 89 deg. 07' 44" W., 270 feet to a point;
thence running N. 47 deg. 21' 07'' W., 443.53 feet to a
point;
thence running N. 19 deg. 18' 16" W., 293.67 feet to a
point;
thence running N. 0 deg. 52' 16" W., 482.25 feet to the
point of beginning--said last eight courses and distances being
by other land of said Grantor.
Containing 16.68 acres and being shown on plan entitled:
"NEW ENGLAND POWER SERVICE COMPANY PART OF NEW ENGLAND ELECTRIC
SYSTEM BOSTON, MASS. PLAN SHOWING LAND IN WESTBOROUGH,
MASSACHUSETTS TO BE CONVEYED BY MASSACHUSETTS ELECTRIC COMPANY TO
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY SCALE 1" = 100' DATE:
FEBRUARY 26, 1963 D-5954-2', to be recorded herewith.
"Together with the following rights and easements, as
appurtenant to the land hereby conveyed:
The perpetual right and easement to pass and re-pass with
vehicles or otherwise over a roadway 30 feet in width located on
remaining land of said Grantor, as shown on plan hereinabove
referred to, with the right to do such acts or things on said
roadway (including grading, paving and other improvements
thereto) as may be reasonably necessary and proper that said
roadway may be readily used as a means of ingress and egress to
and from the land hereby conveyed; and with the further right to
construct and maintain such slopes and/or embankments on
remaining land of the Grantor immediately adjacent to said
roadway as may be reasonably necessary and proper in connection
with the construction of said roadway and the use thereof for the
purposes herein set forth.
The perpetual right and easement to install, construct,
maintain and operate a line of underground cables or conduits
with wires or cables therein, together with the necessary
manholes, for the transmission of electricity and telephone
service in, through and across remaining land of Grantor lying
West of the land hereby conveyed to serve any building or
buildings which may be constructed from time to time hereafter on
the land hereby conveyed; such line to run by the shortest
reasonably feasible route from any point on the westerly boundary
of the remaining land of Grantor, which lies xxx Xxxx of any
point on the westerly or southwesterly boundaries of the land
conveyed hereby, which boundaries are shown on said plan as,
respectively, a line of 482.25 feet running N. 0 52' 16" W., a
line of 293.6; feet running N. 19 deg. 18' 16" W., and a line of
443.53 feet running N. 47 deg. 21' 07" W., to any point on said
westerly or southwesterly boundaries of the land conveyed hereby.
The perpetual right and easement to install, construct,
maintain and operate a line of poles with wires strung upon and
from the same, for the transmission of electricity and telephone
service, over and across remaining land of Grantor, to serve any
building or buildings which may from time to time hereafter be
constructed on the land hereby conveyed; such line to run
southerly along the westerly boundary of remaining, land of
Grantor from the said Boston-Worcester Turnpike State Highway
Route 9 to any point on said westerly boundary, which lies xxx
Xxxx of any point on the westerly or southwesterly boundaries of
the land conveyed hereby, which boundaries are shown on said plan
as, respectively, a line of 482.25 feet running N. 0 deg. 52' 16"
W., a line of 293.67 feet running N. 19 deg. 18' 16" W., and a
line of 443.53 feet running N. 47 deg. 21' 07" W., to any point
on said westerly or southwesterly boundaries of the land conveyed
hereby.
The perpetual right and easement to install, construct,
maintain and operate a line of underground pipes for the
conveyance of water, in, through and across remaining land of
Grantor lying West of the land hereby conveyed to serve any
building or buildings which may from time to time hereafter be
constructed on the land hereby conveyed; such line to run by the
shortest reasonably feasible route from any point on the westerly
boundary of the remaining land of Grantor, which lies xxx Xxxx of
any point on the westerly or southwesterly boundaries of the land
conveyed hereby, which boundaries are shown on said plan as,
respectively; a line of 482.25 feet running N. 0 deg. 52' 16" W.,
a line of 293.67 feet running N. 19 deg. 18' 16" W., and a line
of 443.53 feet running N. 47 deg. 21' 07 W., to any point on said
westerly or southwesterly boundaries of the land conveyed hereby.
The perpetual right and easement to enter upon remaining
land of Grantor with men, machinery and equipment and to do any
and all acts or things which may be necessary or proper in
connection with the construction, installation, maintenance and
repair of any and all of the ways and facilities existing,
installed or constructed in or upon the land hereby conveyed
under any and all of the foregoing rights and easements
hereinabove set forth and, without limiting the generality of the
foregoing, including the right to excavate so much thereof as may
be necessary and proper in connection with the installation,
construction, maintenance and repair of any or all of said
facilities; and the right to make such use of land in the
immediate vicinity of any such installation or installations as
may be reasonably necessary and proper under the circumstances.
"EXCEPTING AND RESERVING unto the Grantor, its successors and
assigns, as appurtenant to and for the benefit of its remaining
land, the following rights and easements, namely:
The perpetual right and easement to pass and re-pass with
vehicles or otherwise over a roadway 30 feet in width located on
the land hereby conveyed as shown on the plan herein above
referred to, with the right to do such acts or things on said
roadway (including grading, paving and other improvements
thereto) as may be reasonably necessary and proper in order that
said roadway may be readily used as a means of ingress and egress
to and from the Grantor's remaining land; and with the further
right to construct and maintain such slopes and/or embankments on
the land hereby conveyed immediately adjacent to said roadway as
may be reasonably necessary and proper in connection with the
construction of said roadway and the use thereof for the purposes
herein set forth.
The perpetual right and easement to install, construct,
maintain and operate in, through and across the land conveyed
hereby two underground lines of pipes in connection with sewage
disposal systems from any and all buildings which may at any time
hereafter be constructed on remaining land of the Grantor, as
follows: one line of such pipes to run the shortest reasonably
feasible route from any point on the southwesterly or southerly
boundaries of tile land hereby conveyed, which boundaries are
shown on said plan as, respectively, a line of 443.53 feet
running N 47 deg. 21' 07" W., a line of 293.67 feet running N. 19
deg. l8' 16" W., and a line of 270.00 feet running S. 89 deg. 07'
44" W., to the nearest connecting plug in any sewage disposal
system existing on the land hereby conveyed at the time of the
installation of such line of pipes; and one line of such pipes to
run by the shortest reasonably feasible route from any point on
the easterly boundaries of the land hereby conveyed, which
boundaries are shown on said plan as, respectively, a line of
525.67 feet running S. 70 deg. 41' 44" W., and a line of 292.60
feet running S. 19 deg. 18' 16" E., to the nearest connecting,
plug in any sewage disposal system existing on the land hereby
conveyed at the time of the installation of such line of pipes
or, in the alternative and not in addition, to any leaching field
in the approximate location shown on said plan as 'Proposed
Leaching Field' or, in the alternative and not in addition, to
any septic tank in the approximate location shown on said plan as
'Proposed Septic Tank'; and the right to connect each such sewage
disposal system into such sewage disposal systems on the land
hereby conveyed, or into any such leaching field or septic tank,
as the case may be, and further, in connection with the above,
the right to use such lines of pipes to transmit sewage to, and
only to, said leaching field and septic tank (and through them to
any other then existing leaching fields and septic tanks or other
sewage disposal facilities connected to them and in respect of
which the owner, at the time, of the land hereby conveyed has the
right to permit such use); provided, however, that each such
right to connect with or transmit sewage to and through said
sewage systems, leaching fields, septic tanks and other sewage
disposal facilities shall at all times be subject to the
conditions that: (i) the exercise of any such right shall not
unreasonably interfere with the then existing use of any such
system, leaching field, septic tank or other facility, or cause
the same to be inadequate for continuation of its then existing
use; and (ii) the owners from time to time of the remaining land
of Grantor which are benefitting from such exercise shall each
bear a part of the cost of maintaining, repairing, extending or
enlarging any such system, leaching field, septic tank or other
facility proportionate to such owner's said use thereof.
The perpetual right and easement to install, construct,
maintain and operate two underground drains for the purpose of
draining surface water and other water collected on the Grantor's
remaining land and land contiguous thereto which the Grantor may
hereafter acquire, in, through, under and across the land hereby
conveyed, one in the approximate location of the proposed drain
over the easterly and northerly part of the land hereby conveyed
shown on said plan as 'Approx. Location of Proposed Drain' and
one in the approximate location of the existing drain over the
northwesterly corner of the land hereby conveyed shown on said
plan as 'Existing Drain'.
The perpetual right and easement to install, construct,
maintain and operate a line of underground cables or conduits
with wires or cables therein, together with the necessary
manholes, for the transmission of electricity and telephone
service in, through and across land hereby conveyed to serve any
building or buildings which may be constructed from time to time
hereafter on remaining land of the Grantor; such line to run by
the shortest reasonably feasible route from any point on the
westerly or southwesterly boundaries of the land hereby conveyed,
which boundaries are shown on said plan as, respectively, a line
of 482.25 feet running N. 0 deg. 52' 16" W., a line of 293.67
feet running N. 19 deg. 18' 16" W., and a line of 443.53 feet
running N. 47 deg. 21' 07" W., to any point on the easterly
boundaries of the land hereby conveyed, which boundaries are
shown on said plan as, respectively, a line of 525.67 feet
running S. 70 deg. 41' 44" W., and lines of 292.60 feet running
S. 19 deg. 18' 16" E., and 318.27 feet running S. 14 deg. 48' 40"
E.
The perpetual right and easement to install, construct,
maintain and operate a line of underground pipes for the
conveyance of water, in, through and across the land hereby
conveyed, to serve any building or buildings which may from time
to time hereafter be constructed on remaining land of said
Grantor; such line to run by the shortest reasonably feasible
route from any point on the westerly or southwesterly boundaries
of the land hereby conveyed, which boundaries are shown on said
plan as, respectively, a line of 482.25 feet running N. 0 deg.
52' 16" W., a line of 293.67 feet running N. 19 deg. 18' 16" W.,
and a line of 443.53 feet running N. 47 deg. 21' 07" W., to any
point on the easterly boundaries of the land hereby conveyed,
which boundaries are shown on said plan as, respectively, a line
of 525.67 feet running S. 70 deg. 41' 44" W., and lines of 292.60
feet running S. 19 deg. 18' 16" E., and 318.27 feet running S. 14
deg. 48' 40" E.
The perpetual right and easement to enter upon the land
hereby conveyed with men, machinery and equipment and to do any
and all acts or things which may be necessary or proper in
connection with the construction, installation, maintenance and
repair or any and all of the ways and facilities existing,
installed or constructed in or upon the land hereby conveyed
under any and all of the foregoing rights and easements
hereinabove set forth, and, without limiting the generality of
the foregoing, including the right to excavate so much thereof as
may be necessary and proper in connection with the installation,
construction, maintenance and repair of any or all of said
facilities; and the right to make such use of land in the
immediate vicinity of any such installation or installations as
may be reasonably necessary and proper under the circumstances
"Being a portion of the premises conveyed to the
Massachusetts Electric Company by Xxxxxxx Xxxxxx et ux by deed
dated April 2, 1962, recorded with Worcester District Registry of
Deeds in Book 4270, Page 36; and said premises are conveyed
subject to a drainage easement in favor of The Commonwealth of
Massachusetts dated July 17, 1930, recorded with said Deeds in
Book 2526, Page 472.
"The exact location of any or all of the rights and
easements hereinabove described (other than the 30-foot roadways)
shall become established by and upon the construction and
installation from time to time of the facilities hereinabove set
forth and the recording with Worcester District Registry of Deeds
of a plan or plans showing the locations thereof in, under or
across the land subject thereto.
"Each right and easement granted to the Grantee or reserved
to the Grantor hereunder may be exercised only in such manner and
to such extent that such exercise does not unreasonably interfere
with the use, operation or maintenance of the land subject
thereto or any buildings or structures or other improvements
existing on such land at the time of such exercise.
"The location of any way or the line of any facility which
exists or has been installed under any easement or right granted
or reserved herein may be changed between any two points on such
way or line lying within the boundaries of the land subject
thereto at the option of and at the sole expense of the owner
from time to time of the land subject thereto provided that the
work to be done in connection therewith shall be done under the
supervision of the person exercising such easement or right or
his agents, if he so elects, and that the way or facility as so
relocated shall be of substantially equal convenience and utility
and shall not be more expensive or burdensome to such person to
maintain, and provided that such change shall not unreasonably
interfere with the use being made thereof during the making of
such change."
PART II
All and the same premises conveyed to XXXX XXXXXXX LIFE
INSURANCE COMPANY, Grantee, by MASSACHUSETTS ELECTRIC COMPANY,
Grantor, by deed dated October 13, 1966 duly recorded with
Worcester District Registry of Deeds and therein described as
follows:
A certain tract or parcel of land situated off the southerly
side of the Boston-Worcester Turnpike State Highway Route 9 in
Westborough, Worcester County, Massachusetts and bounded and
described as follows:
Beginning at a point at other land now or formerly of the
Grantor, which point is the most northeasterly corner of the
premises hereby conveyed and is located S. 20 deg. 21' 30" W.,
100 feet from a stake, which stake is situated S. 89 deg. 07' 44"
W., 19.34 feet from a Massachusetts Highway Bound on the
southerly side of said Xxxxxx-Xxxxxxxxx Xxxxxxxx Xxxxx Xxxxxxx
Xxxxx 0;
thence running S. 01 deg. 13' 58" W., 973.68 feet to a
point;
thence turning and running S. 89 deg. 07' 44" W., 379.34
feet to an iron pin at land of the Grantee -- said last two
courses and distances being by land now or formerly of the
Grantor;
thence turning and running N. 14 deg. 48' 40" W., 318.27
feet to a stake;
thence turning and running N. 19 deg. 18' 16" W., 292.60
feet to a drill hole;
thence turning and running N. 70 deg. 41' 44" E., 525.67
feet to a spike;
thence turning and running N. 20 deg. 21' 30" E., 236.37
feet to the point of beginning -- said last four courses and
distances being by other land of the Grantee.
Containing 7.74 acres of land more or less and being shown
on a plan entitled: "NEW ENGLAND POWER SERVICE COMPANY, PART OF
NEW ENGLAND ELECTRIC SYSTEM, BOSTON, MASS. PLAN SHOWING LAND IN
WESTBOROUGH, MASSACHUSETTS TO BE CONVEYED BY MASSACHUSETTS
ELECTRIC COMPANY TO XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
SCALE 1" = 100' DATE MAY 24, 1966 D-6306", to be recorded
herewith.
Together with the following rights and easements, as
appurtenant to the land hereby conveyed:
The perpetual right and easement to install, construct,
maintain and operate a line of underground cables or conduits
with wires or cables therein, together with the necessary
manholes, for the transmission of electricity and telephone
service in, through and across remaining land of the Grantor
which is situated west of the land conveyed to the Grantee by the
Grantor by deed dated June 19, 1963 and recorded with Worcester
District Registry of Deeds in Book 4381, Page 408, to serve any
building or buildings which may be constructed from time to time
hereinafter on the land hereby conveyed; such line to run by the
shortest reasonably feasible route from any point on the westerly
boundary of the remaining land of the Grantor, which lies xxx
xxxx of any point on the westerly or southwesterly boundaries of
the land conveyed to the Grantee by the Grantor by deed dated
June 19, 1963 and recorded with Worcester District Registry of
Deeds in Book 4381, Page 408, which boundaries are shown on said
plan as, respectively, a line of 482.25 feet running N. 0 deg.
52' 16" W., a line of 293.67 feet running N. 19 deg. 18' 16" W.,
and a line of 443.53 feet running N. 47 deg. 21' 07" W., to any
point on said westerly or southwesterly boundaries of the land
conveyed to the Grantee by said deed recorded with Worcester
District Registry of Deeds in Book 4381, Page 408.
The perpetual right and easement to install, construct,
maintain and operate a line of poles with wires strung upon and
from the same, for the transmission of electricity and telephone
service, over and across remaining land of the Grantor, to serve
any building or buildings which may from time to time hereafter
be constructed on the land hereby conveyed; such line to run
southerly along the westerly boundary of remaining land of the
Grantor from the said Boston-Worcester Turnpike State Highway
Route 9 to any point on said westerly boundary, which lies xxx
xxxx of any point on the westerly or southwesterly boundaries of
the land conveyed to the Grantee by the Grantor by deed dated
June 19, 1963 and recorded with Worcester District Registry of
Deeds in Book 4381, Page 408, which boundaries are shown on said
plan as, respectively, a line of 482.25 feet running N. 0 deg.
52' 16" W., a line of 293.67 feet running N. 19 deg. 18' 16" W.,
and a line of 443.53 feet running N. 47 deg 21' 07" W.
The perpetual right and easement to install, construct,
maintain and operate a line of underground pipes for the
conveyance of water, in, through and across remaining land of the
Grantor lying west of the land conveyed to the Grantee by the
Grantor by deed dated June 19, 1963 and recorded with Worcester
District Registry of Deeds in Book 4381, Page 408, to serve any
building or buildings which may from time to time hereafter be
constructed on the land hereby conveyed; such line to run by the
shortest reasonably feasible route from any point on the westerly
boundary of the remaining land of the Grantor, which lies xxx
xxxx of any point on the westerly or southwesterly boundaries of
the land conveyed by the Grantor to the Grantee by deed dated
June 19, 1963 and recorded with Worcester District Registry of
Deeds in Book 4381, Page 408, which boundaries are shown on said
plan as, respectively, a line of 482.25 feet running N. 0 deg.
52' 16" W., a line of 293.67 feet running N. 19 deg. 18' 16" W.,
and a line of 443.53 feet running N. 47 deg. 21' 07" W., to any
point on said westerly or southwesterly boundaries of the land
conveyed to the Grantee by said deed dated June 19, 1963 and
recorded with Worcester District Registry of Deeds in Book 4381,
Page 408.
The perpetual right and easement to enter upon remaining
land of the Grantor with men, machinery and equipment and to do
any and all acts or things which may be necessary or proper in
connection with the construction, installation, maintenance and
repair of any and all of the facilities existing, installed or
constructed in or upon the remaining land of the Grantor under
any and all of the rights and easements hereinabove set forth and
without limiting the generality of the foregoing, including the
right to excavate so much thereof as may be necessary and proper
in connection with the installation, construction, maintenance
and repair of any or all of said facilities; and the right to
make such use of land in the immediate vicinity of any such
installation or installations as may be reasonably necessary and
proper under the circumstances.
EXCEPTING AND RESERVING unto the Grantor, its successors and
assigns, as appurtenant to and for the benefit of its remaining
land, the following rights and easements, namely:
The perpetual right and easement to pass and re-pass with
vehicles or otherwise over a roadway 30 feet in width located on
the land hereby conveyed as shown on the plan hereinabove
referred to, with the right to do such acts or things on said
roadway (including grading, paving and other improvements
thereto) as may be readily used as a means of ingress and egress
to and from the Grantor's remaining land; and with the further
right to construct and maintain such slopes and/or embankments on
the land hereby conveyed immediately adjacent to said roadway as
may be reasonably necessary and proper in connection with the
construction of said roadway and the use thereof for the purposes
herein set forth.
The perpetual right and easement to install, construct,
maintain and operate in, through and across the land conveyed
hereby an underground line of pipes in connection with sewage
disposal systems from any and all buildings which may at any time
hereafter be constructed on remaining land of the Grantor, said
line of pipes is to run by the shortest reasonably feasible route
from any point on the easterly and/or southerly boundaries of the
land hereby conveyed, which boundaries are shown on said plan as
respectively, a line of 973.68 feet and running S. 01 deg. 13'
58" W. and a line of 379.34 feet and running S. 89 deg. 07' 44"
W. to the nearest connecting plug in any sewage disposal system
existing on the land hereby conveyed at the time of the
installation of such line of pipes or, in the alternative and not
in addition, to any leaching field in the approximate locations
shown on said plan as "Existing and Proposed Leaching Fields" or,
in the alternative and not in addition, to any septic tank in the
approximate location shown on said plan as "Septic Tank"; and the
right to connect each such sewage disposal system into such
sewage disposal systems on the land hereby conveyed, or into any
such leaching field or septic tank, as the case may be, and
further, in connection with the above, the right to use such
lines of pipes to transmit sewage to, and only to, said leaching
field and septic tank (and through them to any other then
existing leaching fields and septic tanks or other sewage
disposal facilities connected to them, if the owner of the land
hereby conveyed has, at the time of such connection, the right to
permit such use); provided however, that each such right to
connect with or transmit sewage to and through said sewage
systems, leaching fields, septic tanks and other sewage disposal
facilities shall at all times be subject to the conditions that:
(i) the exercise of any such right shall not unreasonably
interfere with the then existing use; and (ii) the owners from
time to time of the remaining land of the Grantor which are
benefiting from such exercise shall each bear a part of the cost
of maintaining, repairing, extending or enlarging any such
system, leaching field, septic tank or other facility
proportionate to such owner's said use thereof.
The perpetual right and easement to install, construct,
maintain and operate an underground drain for the purpose of
draining surface water and other water collected on the Grantor's
remaining land and land contiguous thereto which the Grantor may
hereafter acquire, in, through, under and across the land hereby
conveyed, in the approximate location of the proposed drain over
the easterly and northerly part of the land hereby conveyed shown
on said plan as "Approx. Location ok Proposed Drain".
The perpetual right and easement to enter upon the land
hereby conveyed with men, machinery and equipment and to do any
and all acts or things which may be necessary or proper in
connection with the construction, installation, maintenance and
repair of any and all of the ways and facilities existing,
installed or constructed in or upon the land hereby conveyed
under any and all of the foregoing rights and easements
hereinabove set forth, and, without limiting the generality of
the foregoing, including the right to excavate so much thereof as
may be necessary and proper in connection with the installation,
construction, maintenance and repair of any or all of said
facilities; and the right to make such use of land in the
immediate vicinity of any such installation or installations as
may be reasonably necessary and proper under the circumstances.
Being a portion of the premises conveyed to the
Massachusetts Electric Company by Xxxxxxx Xxxxxx et ux by deed
dated April 2, 1962, recorded with Worcester District Registry of
Deeds in Book 4270, Page 36; and said premises are conveyed
subject to a drainage easement in favor of The Commonwealth of
Massachusetts dated July 17, 1930, recorded with said Deeds in
Book 2526, Page 472; and being a portion of the premises conveyed
to Massachusetts Electric Company by Xxxxxx Xxxxx et ux by deed
dated June 24, 1965 and recorded with said Deeds in Book 4575,
Page 12.
The exact location of any or all of the rights and easements
hereinabove described (other than the 30-foot roadway) shall
become established by and upon the construction and installation
from time to time of the facilities hereinabove set forth and the
recording with Worcester District Registry of Deeds of a plan or
plans showing the locations thereof in, under or across the land
subject thereto.
Each right and easement granted to the Grantee or reserved
to the Grantor hereunder may be exercised only in such manner and
to such extent that such exercise does not unreasonably interfere
with the use, operation or maintenance of the land subject
thereto or any buildings or structures or other improvements
existing on such land at the time of such exercise.
The location of any way or the line of any facility which
exists or has been installed under any easement or right granted
or reserved herein may be changed between any two points on such
way or line lying within the boundaries of the land subject
thereto at the option of and at the sole expense of the owner
from time to time of the land subject thereto provided that the
work to be done in connection therewith shall be done under the
supervision of the person exercising such easement or right or
his agents, if he so elects, and that the way or facility as so
relocated shall be of substantially equal convenience and utility
and shall not be more expensive or burdensome to such person to
maintain, and provided that such change shall not unreasonably
interfere with the use being made thereof during the making of
such change.
THE COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK SS.
On this 14th day of October, 1966, before me appeared Xxxxxx
X. Xxxxxxx, xx. and Xxxxxxx X. Xxxxxx to me personally known, who
being by me duly sworn, did say that they are the Vice President
and Assistant Secretary, respectively of Xxxx Xxxxxxx Mutual Life
Insurance Company, a corporation, and that the seal affixed to
the foregoing instrument is the corporate seal of said
corporation, and that said instrument was signed and sealed by
them in behalf of said corporation by authority of its Board of
Directors, and the said Xxxxxx X. Xxxxxxx, xx. and Xxxxxxx X.
Xxxxxx acknowledged said instrument to be the free act and deed
of said corporation.
Xxxxxx X. Xxxxx
Notary Public
My commission expires
Xxxxxx X. Xxxxx
Notary public in and for
The Commonwealth of Massachusetts
my commission expires May 14, 1971.
(Notarial Seal)
THE COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK SS.
On this 14th day of October, 1966, before me appeared Xxxxxx
X. Xxxxxx and Xxxxxxx X. Xxxx to me personally known, who being
by me duly sworn, did say that they are the President and
Secretary, respectively, of New England Power Service Company, a
corporation, and that the seal affixed to the foregoing
instrument is the corporate seal of said corporation, and that
said instrument was signed and sealed by them in behalf of said
corporation by authority of its Board of Directors, and the said
Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxx acknowledged said instrument
to be the free act and deed of said corporation.
Xxxxxx X. Xxxxxxxxxx, Xx.
Notary Public
My commission expires April 29, 1971.
(Notarial Seal)
Exhibit B-2(ii)
LEASE MODIFICATION AGREEMENT, dated January 2, 1970, between Xxxx
Xxxxxxx Mutual Life Insurance Company ("Lessor"), a Massachusetts
corporation having its principal office and place of business at
000 Xxxxxxxx Xxxxxx, xx xxx Xxxx xx Xxxxxx, Xxxxxx of Suffolk,
The Commonwealth of Massachusetts, and New England Power Service
Company ("Lessee"), a Massachusetts corporation having its
principal office and place of business at Turnpike Road, in the
Town of Westborough, County of Worcester, The Commonwealth of
Massachusetts:
The Supplemented Lease, dated October 14, 1966, between Lessor
and Lessee is hereby modified and amended as follows:
Items (x) and (y) of clause B of section 2 of the
Supplemented Lease are modified and amended to read as follows:
"(x)$744,164 during the remaining portion of the initial
term after the preliminary term of this Lease, payable in
installments in advance of(y)$62,013.67 on the first day of such
remaining portion of the initial term after the preliminary term
of this Lease and on the first day of each succeeding calendar
month."
In Witness Whereof, the parties hereto have caused this
Agreement to be executed and their respective corporate seals to
be hereunto affixed and attested by their respective officers
thereunto duly authorized.
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY,
Lessor
By s/ X. X. Xxxxxxx
______________________________________
Second Vice President
Attest:
s/ X. X. XxXxx
_______________________________
Witness:
s/ X. X. Xxxxxxx
________________________________
s/ Xxxx M, Xxxx, Jr,
________________________________
NEW ENGLAND POWER SERVICE COMPANY,
Lessee
By s/ R. Xxxxx XxxxXxxxxx
_________________________________
Attest:
s/ Xxxxxx X. Xxxxxxxx
_________________________________
Witness:
s. Xxxx X. Xxxxxxx
__________________________________
s/ Xxxxxxxx X. Xxxxxxxx
___________________________________
